Cookies: We use cookies to give you the best possible experience on our site. By continuing to use the site you agree to our use of cookies. Find out more.

House of Lords Hansard
23 November 2016
Volume 776

    House of Lords

    Wednesday 23 November 2016

    Prayers—read by the Lord Bishop of Coventry.

    Mental Health Units: Police Response

    Question

    Asked by

  • To ask Her Majesty’s Government what plans they have to review the use of force by police officers when responding to emergency calls from mental health units.

  • My Lords, there is ongoing work to ensure that any operational police decisions on the use of force in a mental health setting are necessary and proportionate. This includes the development of a new protocol on police attendance, national collection from 2017 to 2018 of police data on any force used and a request to local areas to scrutinise the use of any Taser in a mental health setting.

  • I thank the Minister for that response. However, she will know that a recent Independent Police Complaints Commission report stated that people suffering from a mental illness are four times more likely to die after police use of force against them than other individuals. Will the Government look at the possibility that better training for police officers in how to deal with people suffering from a mental health illness might alleviate the need for them ever to use Tasers because they might understand better how to deal with the situation?

  • Seven people with mental health concerns died in police custody in 2015-16 out of 14 deaths in total. That of course is still too many. The number of people with mental health problems in police custody has significantly come down since the Government decreed that nobody with a mental health problem should be held in a police cell but should be taken to a place of safety in every situation where that is possible, and never for children. On the second part of her question, the noble Baroness is absolutely right: training is essential for police officers, not just in combating crime but in knowing the symptoms of somebody with mental health problems.

  • I declare my interest as chair of the National Mental Capacity Forum. Do the Government agree that in situations in the community where others are at risk because somebody is becoming very violent, it is appropriate to call the police and inappropriate to expect ambulance and other staff to attempt to use any form of restraint? The police are trained and are therefore safer than people using restraint who are not appropriately trained. The College of Policing is actively addressing this issue at the moment through its revised training guidelines.

  • The noble Baroness is right—restraint is the last possible option. It is certainly not for ambulance staff to deal with someone who is extremely violent and a danger to both themselves and others. So, yes, in rare circumstances the use of Taser will be necessary.

  • My Lords, I refer to my interests in the register. Is not one of the fundamental problems that there is a lack of appropriate levels of staffing in many mental health units and a lack of appropriate levels of community mental health services on whom the police can call under such circumstances? What representations has the Home Office made to its colleagues in the Department of Health to ensure that those gaps in service provision are being addressed?

  • The noble Lord is right to raise this issue. The Government recognise the need to invest in places of safety and £15 million has been allocated to 88 projects in England to improve provision for those in mental health crises, including increasing places of safety.

  • Will the Minister define what she means by the last possible option? What are the Government doing to develop a humane alternative to the use of tasers in psychiatric wards?

  • I am happy to tell the noble Baroness what I mean by “last possible option”. Something like Taser would be used only when all other methods of restraint are deemed not appropriate or to have failed, and where distance is required between the police and the person who is being extremely violent. That is what I mean by the last option. As to never using it, we can never say that it will not be used because the alternatives—I talked about this with the noble Baroness the other day—are to use more extreme methods of restraint, and we would not want that.

  • In the figures in the IPCC investigation, to which the noble Baroness, Lady Doocey, referred, of 191 cases of serious incidents, one in five people were known to have mental health concerns. They were more likely to be restrained and experience multiple uses of force, and were four times more likely to die after force had been used than those not known to be mentally ill. Is not the reality that this year is the third year in a row that the Government have failed to meet their promise that mental health funding in local areas would increase? Is not the reality that until the Government seek to address this problem we will not get at the heart of the issue of the continuing extent to which the police are called out in situations involving people with mental health issues?

  • My Lords, I dispute the noble Lord’s assertion about funding because the Government have committed to investing an additional £1 billion into mental health services by 2020 to ensure improved mental health support in the community and for people in accident and emergency, as well as crisis response provision and treatment for both adults and children.

  • My Lords, does the Minister agree that the problem behind this Question is not one for the police? This is a matter for the health service, as the noble Lord, Lord Harris, has said. It cannot be the case that police officers are called to actually come into mental health units unless there has been a major failure of care by the health service. This is blaming the people who have to clear up the mess rather than dealing with the problem itself.

  • My Lords, the noble Lord and I agree on one level because if someone has a mental health problem or is experiencing a mental health crisis, that is a health issue. However, if someone demonstrates behaviour that is either a danger to themselves or to others, including the staff in mental health settings, there may be no other option. Of course these situations are rare, but as I say there may be no other option than for police restraint to be used.

  • My Lords, the Minister has referred to the Government’s intention to put an additional £1 billion into mental health services between now and, I think she said, 2020. Can she say when that money is going to be delivered? If, as I suspect, it is what might be called back loaded, what is to happen in the meantime?

  • I think that the noble Baroness is being slightly cynical, but I will write to her with a breakdown of when the funding might be expected to be released.

  • Waterson Review

    Question

    Asked by

  • To ask Her Majesty’s Government when their response to the Waterson review of secondary ticketing will be published.

  • Professor Michael Waterson’s independent report on consumer protection measures applying to online secondary ticketing makes a number of recommendations which deserve to be fully considered by all those concerned with ticketing, live entertainment and law enforcement. The new Government are taking time to look very closely at the recommendations and will publish a response in due course.

  • I thank the Minister for that response. What would be her response to somebody who discovers that they have purchased the wrong ticket, when the Government have yet to implement the Act in question?

  • The Act has of course come into force and there have been prosecutions on ticketing, although they are often made through fraud law rather than consumer law. The advice I would give to consumers is to get in touch with the excellent Citizens Advice service. If they have evidence of fraud they should contact Action Fraud, and there is also the possibility of trading standards taking action. One of Professor Waterson’s recommendations is that more work should be done on that.

  • My Lords, does my noble friend agree that modern-day touts who use bots in the form of software that stores hundreds of credit card accounts and can instantly sweep the market of tickets the moment they go on sale, only to reappear half an hour later through their colleagues on the secondary market at highly inflated prices, corrupts the market and denies the true fans of sport and musical events the opportunity to buy tickets? These touts should be subject to legislative action by the Government through the Digital Economy Bill.

  • As always, my noble friend makes some powerful points. He will be glad to know that the Secretary of State for Culture, Media and Sport has asked for a round table to be held with the industry on this matter next week, on 30 November, in order to bring together all the interested parties to look at the issue of bots following very useful discussions on the Digital Economy Bill.

  • My Lord, the Minister told me in May this year that the response to Waterson would be coming in due course but we are still being given the same answer. Meanwhile, the law, passed in this House and elsewhere, is being flouted. Justin Bieber tickets on sale at £70 can be bought for £1,600, while a £127 rugby ticket is selling at £1,250. None of these people are keeping to the law because they are not giving the information. Given the Government’s very welcome ban on letting agents charging tenants fees, will the Minister take similar action to deal with ticket touts?

  • I have already explained that we are looking at the problem of bots, which has delayed the formal response to the report, but of course, we published the report straightaway and action is beginning to be taken. I do not recommend that consumers pay such prices. The report makes it clear that there is also a duty on the part of primary ticket sellers to think about how they can distribute tickets in a sensible way, perhaps by holding ballots or selling to fans. I know the disappointment this can bring—I have seen my own nieces in tears because they could not get tickets—but sometimes tickets do become available later. However, this is an important issue and that is why we spoke to Professor Waterson. The bots issue is very much on our minds and we are looking at it to see if the existing law on computer misuse is adequate.

  • My Lords, the Minister has clearly made herself extremely conversant with digital ticketing purchasing software, but the clue is in the name, is it not? Will she confirm that she is favourably disposed towards dealing with bots well in advance of the final government report on and response to Waterson, which, ominously, she describes as coming “in due course”?

  • We are certainly keen to get to the bottom of the issue of bots and to find the right way forward. There was consensus in committee in the other place that it was right to try to sort out the bots issue before our formal response. But as I said, the Waterson report is with us and work is in hand on this important issue. I am told that there is a proposed federal law on bots—“better online ticketing service”—although I understand the situation is a little different in the United States.

  • My Lords, in response to the Question asked by the noble Baroness, Lady Doocey, the noble Baroness, Lady Williams, suggested that a form of redress could be sought through citizens advice bureaux. Given that very few councils can now afford to have a trading standards department, is the Minister aware that Citizens Advice has had huge cuts in its funding?

  • I am of course aware of the problems Citizens Advice and trading standards have with funding; we have discussed that in this House before. One of the points Professor Waterson made in his very useful report, which we are looking at very seriously, is how we make sure there is appropriate funding for the kind of investigations we all want in this area. Interestingly, secondary ticketing is not top of the complaints we get. They are often about the primary ticket sellers, rather than the secondary market we have been debating through this report.

  • My Lords, I again refer to my interest as listed in the register. Is not what the noble Baroness is describing a failure in the market for entertainment tickets? Might not the secondary ticketing sellers be colluding with the primary ticket sellers—a situation that suits all the parties involved rather well, because they do quite well out of it? Should we not be looking at how the market as a whole functions?

  • That was one of the reasons why we asked Professor Waterson, who is an economist from Warwick University, to look at this, and that is not the conclusion he came to in his report. There are benefits from the secondary platforms, which give greater protection than buying from a tout or on social media. They guarantee a replacement if you cannot get in. We have a big tourist industry in this country, and it is very important that when tourists come here—there are more and more of them since the depreciation of the pound—they are able to access our amazing sporting events, theatres and so on. There are difficulties, which I acknowledge, but in general this market works well and has its advantages. Obviously, the bots issue is a big one.

  • Infrastructure Improvements: Funding

    Question

    Asked by

  • To ask Her Majesty’s Government, further to the National Infrastructure delivery plan 2016 to 2021, what assessment they have made of the ability of the private sector to part-fund infrastructure improvements.

  • In referring to my interests on the register, I beg leave to ask the Question standing in my name on the Order Paper.

  • My Lords, the private sector plays a vital role in the financing and delivery of our infrastructure. The private sector will deliver around half of the projects due to complete in the next five years. The Government will continue to create the right environment to encourage private investment.

  • Given the 2% increase in the insurance premium tax and the major housebuilding programme announced today, will my noble friend commit not to build any houses in inappropriate places, such as flood plains, but to undertake a major sustainable drainage building programme and invite more money from the private sector to fund flood defences, in particular the insurance sector and pension funds?

  • My noble friend has asked three questions. On building on flood plains, whether planning consent is given for a particular development is a matter for local planning authorities, but my noble friend will be aware of the National Planning Policy Framework, which—I paraphrase—basically discourages development in inappropriate areas and encourages development away from areas at high risk of flooding. On drainage schemes, the Government have committed £2.5 billion of investment between now and 2021, and I believe that the Chancellor announced a further increase in the Autumn Statement a few moments ago. Finally, on private finance, the Environment Agency and local authorities can bid for private finance for schemes that are outwith the public sector scheme and, subject to value for money, they have a good chance of succeeding. There is a new partnering scheme whereby local communities and landowners can bid for funds alongside Defra and make progress with schemes which would not be able to go ahead if they were solely dependent on public finance.

  • My Lords, why should local authorities be held be responsible, as the Minister said, for planning matters in areas that flood, when it is the taxpayer that picks up part of the bill at the end of the day?

  • The noble Lord may be referring to the introduction of Flood Re, which enables those who previously had difficulty in getting insurance now to get some. I very much hope the noble Lord welcomes that initiative.

  • My Lords, the Minister will be aware that to deliver the infrastructure programme which the Government wish to achieve will require the contribution not just of large contractors and manufacturers but of small and medium-sized businesses, especially in the building industry—that is the way to get the agility and flexibility needed. What progress are the Government making on engaging with those two communities of constructors—the small and medium-sized enterprises—to deliver on the housing targets which we all agree need to be met?

  • The noble Lord was, of course, a Minister in the relevant department. He may be aware that, a few months ago, Ministers in CLG announced an initiative to bring back into the market the small builders who have disappeared from it in recent years. The initiative was aimed at making sites available in slightly smaller packages so that the smaller builder would have a chance of developing them, rather than relying on sites that are so big that only major developers can accommodate them.

  • My Lords, does not the Minister agree that private finance initiatives have a very bad record of leaving a legacy of years, or even decades, of inflated debt on projects that are no longer required, such as schools which have been built in the wrong place and accordingly have no pupils, and, as such, need to be evaluated very carefully before being undertaken?

  • I think the noble Lord is somewhat harsh in his verdict on the PFI. For example, the NAO says of the PFI:

    “Most private finance projects are built close to the agreed time, price and specification”.

    It further states that PFI contracts provide,

    “two key advantages over conventional procurement … transparency of pricing in that the public sector knows in advance how much it will be paying”,

    and a,

    “consistent approach to maintenance as the SPV”—

    the special purchase vehicle—

    “is under an obligation to maintain the asset in good condition”.

    Of course, some projects have not gone correctly, but this country is a world leader in the development of private finance and we should be proud of what we have achieved.

  • Order. It is the turn of the Conservative Benches.

  • My Lords, while congratulating the Chancellor on his excellent Statement committing to building more housing, can I ask my noble friend what is to be done about the decision by the European Banking Authority to increase the capital weighting required for loans to small housebuilders from 100% to 150%, which is greater than is required for unsecured credit card debt and will result in less availability of money for builders to build and also require banks to make provision for their existing loans? I declare my interest which is on the register.

  • There is only one answer for my noble friend: I will write to him.

  • My Lords, on the related issue of research and development, of course we welcome what the Chancellor said earlier today on the proposed increase of £2 billion up to the year 2020. However, does the Minister accept that even with this commitment, if it is realised, the United Kingdom will still be below the OECD average expenditure in this area and below the 3% of GDP that the OECD recommends to all developed countries?

  • Again, the noble Lord is somewhat harsh in his judgment. I very much hope he will welcome the extra money that has been found at a time of great difficulty for investment in research and development.

  • My Lords, the last Chancellor of the Exchequer suggested that infrastructure for the northern powerhouse could be paid for mainly by the Chinese. As many Ministers now talk about the importance of British independence, should the Government be quite so dependent on China for infrastructure?

  • I very much hope that this country will remain open for business and that we will continue to attract private inward investment to help modernise infrastructure. We have a world-class regulatory system and strong financial and capital markets. I see no reason at all why we should do anything to discourage inward investment in our infrastructure from overseas investors.

  • Royal Navy: Harpoon Anti-ship Missiles

    Question

    Asked by

  • To ask Her Majesty’s Government what intelligence assessment they conducted before making the decision to withdraw the Harpoon anti-ship missiles from Royal Navy service at the end of 2018 without replacement.

  • My Lords, the Royal Navy continuously reviews the capabilities it requires. Inevitably, this means choices must be made on where to invest. Work is ongoing across the MoD to consider options for Harpoon replacement. It has long been the established practice not to comment publicly on intelligence matters, as to do so would likely prejudice the capability, effectiveness or security of the Armed Forces.

  • I thank the noble Earl for his Answer but it fills me with despair. We are paying off HMS “Ocean” and HMS “Diligence” early. We are paying HMS “Bulwark” into reserve for five years. We have 19 escorts, which is a national disgrace, two of which are tied alongside because of lack of manpower due to cuts made by the coalition. Six destroyers of the 19 have major intercooler problems and there is no programme for exactly when they will be repaired. The House of Commons Defence Committee said it is appalling that we have no real replacements for the ageing Type 23s, and now we are removing Harpoon. This is not an abstract issue. For a number of years we will have ships deployed that might suddenly come across an opponent and have to fight—as happened to me and others. We will have ships sunk and people—boys and girls, as mine were—killed. That is not a good thing. Is it possible to look at having available, on standby, some Block II Harpoons, ready to be pulled out very quickly should we need them for our ships? If not, we are standing into danger.

  • My Lords, the noble Lord paints a false picture of the Royal Navy, which for the first time in a generation is growing. We need to be aware of that. He asked a specific question about Harpoon. The current batch of Harpoon missiles we carry has now reached its natural end of life. To replace it would require significant investment in a new missile stockpile. It was the Royal Navy’s judgment that that would be a less than optimal use of its budget for future investment.

  • My Lords, when the coalition Government took office in 2010, the finances of the Ministry of Defence were in complete chaos, largely because of decisions made by the previous Government, including the buying of the two magnificent aircraft carriers that we all look forward to seeing in service one day. Although we had to make a great many cuts, would my noble friend take down to the Ministry of Defence the message from this House that perhaps, now that the situation has changed in so many ways, the Royal Navy and other services need a little more money spent on them?

  • I am grateful to my noble friend. It is important to understand the larger picture, as I alluded to a minute ago. For the first time in many decades, the Royal Navy is growing in both size and capability. Its judgment was that investing in the carriers, the Type 26 Global Combat Ship, the new submarines and the offshore patrol vessels, as well a range of missiles and capabilities, rather than reinvesting in a 1980s weapons system, represented the right order of priority for the Royal Navy’s overall capability. That firmly remains its judgment.

  • My Lords, will the Minister set out which of the items in the long list of problems we have just heard are not correct and which are?

  • The noble Lord, Lord West, painted a picture of a dysfunctional Royal Navy. I repudiate that picture entirely. It is a Royal Navy that can be proud of the investment that is being placed in it. One of the proudest features are the carriers that the noble Lord, Lord West, was instrumental in commissioning.

  • My Lords, all our Type 23 frigates and half our Type 45s carry the Harpoon missile. Will the Minister tell the House the effect of the inevitable loss of capability and can he reassure the House that we will not be putting these ships and their crews at extra risk during this period?

  • It is important to understand the context in which a weapon such as Harpoon would be used. Harpoon would be likely to be used only in open ocean against frigates and above in a state-on-state conflict when our naval assets would most likely be operating within a coalition task group with a range of offensive systems at its disposal. There are ways other than Harpoon of delivering that offensive capability.

  • My Lords, one press report described Harpoon as obsolete, but better than having nothing at all; another said that the Royal Navy without Harpoon was less capable of fighting an enemy vessel than our Navy in the 19th century; and a third likened it to Nelson at the Battle of Trafalgar getting rid of his cannon and relying on muskets. That may be, but if we are engaged in a possible conflict, as my noble friend Lord West mentioned, how will the Royal Navy respond effectively without anti-ship missiles?

  • My Lords, Royal Navy ships habitually work in task groups with a range of offensive and defensive assets. A task group can be made up of a number of different platforms, including submarines, surface ships, helicopters and, from 2021, our new Queen Elizabeth carriers. In turn, those platforms host a variety of complementary capabilities, such as anti-surface warfare, air defence, intelligence and so on. It is important to look at the overall context.

  • My Lords, sometimes in these debates we forget about our service men and women. At the end of September, HMS “Portland” was docked in Dar es Salaam, and I had the honour of meeting Captain Paul Stroude, the commanding officer. HMS “Portland” was patrolling the difficult waters of east Africa in a brilliant fashion. While we have this debate, will the Minister join me in paying fulsome tribute to our brave and skilful members of the Royal Navy for their outstanding service across the globe?

  • I do so unhesitatingly.

  • Children and Social Work Bill [HL]

    Third Reading

    Amendment 1

    Moved by

  • 1: After Clause 1, insert the following new Clause—

    “Duty to assess and promote physical and mental health and emotional well-being

    (1) Section 22 of the Children Act 1989 is amended as follows.(2) After subsection (3)(b) insert —“(c) to assess and promote his physical and mental health and emotional well-being”.(3) After subsection (3C) insert —“(3D) Any assessment conducted under subsection (3)(c) of a child’s mental health and well-being shall be performed as soon as is reasonably possible after the child enters care and conducted by a health professional with sufficient mental health knowledge, skills and competence to conduct these assessments.(3E) Each clinical commissioning group must take steps to assist the local authority in its area in the exercise of its functions under subsection (3)(c).(3F) The clinical commissioning group for each area must appoint at least one registered medical practitioner and one nurse for the purpose of coordinating the discharge of the duty imposed by subsection (3E).””

  • My Lords, as I have said throughout the passage of the Bill, my aim is to secure practical improvements in the care and support that children entering care receive. We have such a responsibility to help improve the life chances of that most vulnerable group of children, given their troubled start in life.

    On Report, I was very grateful when the noble Lord, Lord Nash, agreed to meet me to discuss my concerns about why the current approach to identifying and responding to the emotional and mental health needs of children in care is simply not working—a point confirmed in the Care Quality Commission’s report Not Seen, Not Heard earlier this year. I found my meeting with the noble Lord, Lord Nash, and Edward Timpson extremely helpful and constructive, and I was particularly grateful for the opportunity to hear direct from the two co-chairs of the expert advisory group set up by Ministers to develop care pathways for children with mental health problems. I look forward to their report, which is due in October 2017.

    It was clear from that meeting that there was much that we agreed on, but there is no time to be lost. The Bill presents an excellent and timely opportunity to make further progress, given that children in care are four times more likely than their peers to have a mental health difficulty and 45% of children entering care have a diagnosable mental health condition—such as anxiety and depression, hyperactivity or an autistic spectrum disorder—a figure that rises to a truly alarming 72% for children entering residential care.

    I listened very carefully to what the Ministers said, most particularly to their wish for flexibility and the ability to test out approaches to improving mental health support for children in care. I understand why they do not want legislation that is overly prescriptive. I reflected very carefully on this, and my new amendment is cast very much in that light. In short, my amendment today seeks to ensure that local authorities, supported by clinical commissioning groups, assess and promote the mental health and emotional well-being of children entering care. It does not prescribe the time, form or manner of any mental health assessment, and provides for the appointment of a designated health professional, a designated doctor or nurse, to help commissioners to fulfil their responsibilities to improve the health of children in care, including their mental health and emotional well-being.

    I want to stress a few points to address some concerns that I know have been raised. First, in this amendment I have sought to avoid prescription in terms of the nature, the timing and the staff who undertake the assessment—the who, when, how and where, if you like. I recognise that the expert advisory group is well placed to advise on such matters. My amendment is very much about the “what” and offers an important opportunity to ensure that the commitments made in Future in Mind—to address fragmentation, to support co-ordination and to intervene early to promote good mental health and prevent escalation to significant mental health conditions later on—are delivered.

    Secondly, a physical health assessment is already in place. My amendment would simply result in an extension of its scope so that an initial mental health assessment was undertaken as part of the existing health assessment—that is, its scope would be extended to include both physical and mental health. It would not mean the introduction of a brand-new process, with the inevitable burdens attached.

    Thirdly, the integrated approach that I am proposing would also avoid concerns that a separate mental health assessment might be stigmatising. It recognises the close links and interactions between physical and mental health—all part of parity of esteem, course.

    Fourthly, given the nature of the trauma that many children will have experienced before entering care, the initial assessment could be undertaken by a range of health professionals, including nurses, with appropriate training and knowledge of the emotional and mental health needs of this group of children, particularly such issues as attachment style. Of course, any more serious needs identified in the initial assessment could be referred to a more specialist clinician in the normal way.

    Fifthly, there is no presumption that every child assessed will need a specific clinical intervention. For some it will be about emotional support, which may come from a teacher responsible for pastoral care, a social worker, some other form of therapeutic support, peer support, group work, school counselling and other ways of supporting emotional well-being and building good relationships. Of course, those assessed with higher levels of clinical needs may well need a clinical intervention and, indeed, should receive it as soon as possible to prevent further escalation.

    I remain convinced that this approach would assist greatly with finding appropriate placements for young people, with the right support built in both for them and for foster carers and other support workers, and would therefore lead to greater placement stability, which is so critical to a good-quality experience in care. I am aware from my researches that a range of integrated assessment models are already being used in other settings, such as the CHAT model in the youth justice system, where all young people aged 10 to 18 entering secure accommodation are assessed for their mental health needs, or what is called the DAWBA model, which I will not spell out in detail but which can be used for a younger age group. I certainly would not wish to prescribe the appropriate model myself, but it must be child-centred and age-appropriate. Implementing this amendment would provide an ideal opportunity to test out such approaches.

    In conclusion, the amendment, which has strong support from the children’s sector and three royal colleges, would ensure that the emotional and mental health needs of children in care are identified early and that they and those caring for them can receive the support required to meet their needs and prevent the current unacceptably high rate of escalation to mental health conditions, which can affect children long into adulthood.

    I look forward to the Minister’s response and know that he shares my wish for further practical progress. I beg to move.

  • My Lords, briefly, I support the noble Baroness’s amendment, to which I added my name. I am very grateful to her for bringing this back and to the Minister for the good work that the Government are doing in this area.

    I work with a number of people who have experienced care. In particular, I work with Dr Mark Kerr. He did not begin his education until he entered a young offender institution. He now has two degrees and recently obtained his doctorate. He is a great champion and academic working on the needs of young people in care and care leavers, and he always emphasises that mental health has been grossly underestimated in terms of meeting needs. If more young people are to be as successful as he is after coming out of care, we need to do far better at meeting their mental health needs. I am grateful for the work of the Minister and his colleagues in this area, but I think we need to support the noble Baroness if we are to make the difference necessary.

  • My Lords, I, too, added my name to the noble Baroness’s amendment, and I echo what she said about the many organisations which have supported it. Many times during the Bill’s passage, mention has been made of the postcode lottery regarding the performance of local authorities around the country. If this assessment procedure is adopted, who will perform the quality assurance of the delivery of the assessment around the country? It cannot be the expert advisory board, which has a completely different purpose.

  • My Lords, I, too, support the amendment, to which I added my name. I congratulate the noble Baroness, Lady Tyler, on her persistence on this, which has been well recognised by those who work in the sector.

    As a former director of social services, I think it is essential that we recognise the need to assess many of these children. That is not to say that large numbers of them will necessarily progress to the most demanding parts of the system, but we know that if you do not assess and pick these problems up early, they go in only one direction: they get worse. We end up with children who have already had a pretty tough time having to fight their way into a CAMHS system which is itself struggling to cope with the demands made on it. We need to give children coming into care, those who are looked after, a good shot at getting access to the services that they need.

    I think that the amendment has met the Government’s concerns about flexibility, which were legitimate. This House and the Government have always argued for parity of esteem between mental and physical health. This is another piece of the jigsaw to try to ensure that.

  • My Lords, times without number during the Bill’s various stages, noble Lords from all quarters have highlighted the fact that children in care are four to five times more likely to have a mental health problem than children in the general population. We have advanced convincing arguments at each stage that there is a pressing need for all children entering care to be given the parity of esteem to which the noble Lord, Lord Warner, referred between physical and mental health assessments by appropriately qualified professionals.

    We thought that the Minister was going down that track on Report when he tabled an amendment to Clause 1 to make it clear that all local authorities must promote both the physical and the mental health of children in care. That was certainly an important and welcome step, because the current system simply is not working. However, he was not willing to go what we regarded as the logical step beyond that.

    It is fair to say that the Minister set out his reasons why he and his colleague, the Minister for Vulnerable Children, Mr Timpson, are not in favour of that. It has been argued that such a move would be too prescriptive in terms of when and how the assessment should be carried out and who might be qualified to do so. It has been argued that the assessment would be seen as potentially stigmatising, and it has also been said that it would cut across the work currently being undertaken by the Department for Education’s expert working group.

    I do not think that any of those three holds water. I will not spend any time on the first two but in terms of the expert working group, it should be said that the Alliance for Children in Care and Care Leavers, which has assiduously provided noble Lords with briefings on various aspects of the Bill throughout its progress, is concerned at the Government’s failure to fully support this amendment. That organisation has 24 members, 21 of which are charities actively involved in the sector, but it also includes the Children’s Commissioner for England, the British Association of Social Workers and the National Association of Independent Reviewing Officers.

    All those involved in the alliance deal on a day-to-day basis with the mental health and emotional well-being of children in care. The alliance is a body of some substance, and it speaks with some authority. The Department for Education appears to acknowledge that, because the alliance is represented on its expert working group. While that group has the respect of most within the sector—noble Lords were certainly impressed when we met its co-chair, Alison O’Sullivan in September—it will not report until this time next year. As I said on Report, it means that many children will continue to have their mental health issues undiagnosed in the intervening period. Of course, it is not just the end of next year; it is the fact that when the recommendations come out and the Minister decides which to accept and implement, a suitable piece of legislation has to be found. That may not become available until after the next general election—and by that I mean the one scheduled for 2020.

    We feel that that is much too far off into the distance. I remain at a loss as to why Ministers are not able to overcome their doubts and simply get on with filling what is palpably a serious gap in the services offered to children entering care. I know that the Minister has been considering representations made to him by the noble Baroness, Lady Tyler. I am not alone in sharing her hope that he will have something positive to say in this area when he answers the debate, so that this matter, which has been discussed for too long, can at least move forward.

  • My Lords, I rise briefly to support my noble friend’s amendment and congratulate her on all the hard work she has done to ensure that the Minister listens to what she has said. I have visited many schools recently, and I am really surprised at the number of children, especially those in care, who are suffering from depression and anxiety. If we can do anything to make sure that no child slips through the net, it would be perfect, because childhood lasts a lifetime and we must give children the best start in the world—especially children in care, who need us to consider them.

  • My Lords, I am delighted that we have come so far in our scrutiny of this Bill and are now debating the final amendments. I am sure that noble Lords will agree that the collected efforts of this House in bringing together different views and meeting a shared position have paid dividends that we can see in the Bill now before us.

    I thank noble Lords for their time, attention and scrutiny, not only during the debates but in the many meetings and exchanges of correspondence between us. I am convinced that the House will be sending a Bill to the other place that will help ensure that all children, whatever their background, get the best start in life. I am grateful for this further opportunity to consider how collectively we can do more to promote the mental health and emotional well-being of looked-after children. As the noble Baroness, Lady Tyler, said, we had a positive discussion when the Minister for Vulnerable Children and I met her on 7 November along with the co-chairs of the expert working group. I am pleased that the co-chairs, Alison O’Sullivan and Professor Peter Fonagy, were able to give a full account of their work.

    We have listened very carefully to the arguments put forward by the noble Baroness and other noble Lords, and have reflected on the informative debates in Committee and on Report. The way in which the mental health of looked-after children is assessed, and the timing and scope of those assessments, is one of the key areas within the expert group’s remit. The group is currently collecting evidence about approaches to assessment so that the assessment happens at the right time and with the right people involved. The group intends to consider the pros and cons of specialist assessment and the optimum method of assessment. Its work will specifically reference the Development and Wellbeing Assessment, the Comprehensive Health Assessment Tool, and the use of the Strengths and Difficulties Questionnaire.

    Our considered view, as I indicated on Report, is that we should not pre-empt the findings of the expert group. We need to let it develop its recommendations to be confident that we are making changes that will have the effect that I believe that we all, including the Department for Education, the Department of Health and NHS England, as well as noble Lords, want to see, and to which we are all committed. Of course, I completely understand the noble Baroness’s motivation: to ensure that opportunities to make progress are not lost ahead of October 2017, when the expert group is due to report, and I pay tribute to her for that. I am sure that the expert working group will want to engage with her and other noble Lords as it starts to consult expert witnesses.

    I reassure the noble Baroness that we are not sitting idly waiting for the expert group to report. We are engaging with the Department of Health on its work with NHS England and Health Education England to identify how new training models for talking therapies might be expanded beyond healthcare services settings to, for example, school counsellors or those working in colleges. We are working with NHS England to roll out a new model of integrated mental health care in secure children’s homes to address needs holistically, co-ordinating the services of several providers. We have been testing the concept of a single point of contact in schools and CAMHS to improve collaborative working across schools and mental health services.

    I also reiterate a commitment made on Report, which the Minister for Vulnerable Children has made to the Education Select Committee. The expert group plans to share the evidence base behind the chosen models and the pathway with interested parties, including noble Lords, in the spring. We are committed to acting on the findings of the expert group and will fully consider all the recommendations that it makes, including any recommendations that require legislation.

    The amendment seeks to bolster what is already in Section 22 of the Children Act 1989, which places a general duty on local authorities to safeguard and promote the welfare of looked-after children. It is implicit that this means promoting their mental health and emotional well-being. Care planning regulations spell out what that means in more detail: undertaking health assessments that explicitly address mental and emotional health as well as physical health. I am very happy to revisit the relevant guidance and regulations to consider whether the terminology might benefit from being more explicit on the importance of mental health.

    We had a helpful and constructive debate in Committee about strengthening the first corporate parenting principle in Clause 1 so that it included an explicit reference to mental and physical health. We have amended the Bill accordingly. In the accompanying statutory guidance we shall emphasise this further. Together with the principle that local authorities must have regard to the need to help looked-after children make the best use of services, it is a powerful lever to bring health to the table.

    Alongside the work of the expert group, however, and given the importance of getting this right, I am very pleased to be able to tell the House that we will test new approaches to mental health assessments for looked-after children. We are in the early stages of working out what this should look like and we will want providers themselves, and children and young people, to help us develop and shape the model. We have not settled on the number of pilots, but our initial thinking is that between six and 10 would be sensible. Of course, we would want to ensure that they were representative in terms of factors such as urban and rural, and the characteristics of the looked-after population. What I can tell noble Lords today is that we plan to begin the pilots in April or May next year, and that they will run in parallel to the considerations of the expert working group. We intend to pilot mental health assessments as part of the existing health assessments that children receive when they start to be looked after.

    We believe that running pilots in a number of local authority areas, potentially on a regional basis, to look at how mental health can be better assessed as part of the wider health assessment, will be complementary to the work of the expert group. It will also help to inform the implementation of any of its recommendations. These pilots will also guard against treating mental health in isolation from physical health and ensure that we address the needs of the whole child in a holistic manner. While I am not in a position to give chapter and verse on the details of the pilots this afternoon, I want to put on record our intention to develop and pilot a model of a holistic health assessment.

    The point made by the noble Lord, Lord Ramsbotham, about a postcode lottery and how we would quality-assure the delivery of these pilots is something that we will consider. It is an important point and we will ask the expert group to look at it. We will ensure that the pilots look at quality-assurance models to see how any assessment should be assured. The independent reviewing officers will also have a role in ensuring that plans deliver what children need.

    I will say a personal thank you to the noble Baroness, Lady Tyler, for her continued passion and commitment on this issue. I hope that the commitments that I have made today will provide sufficient reassurance for her to be able to withdraw her amendment.

  • My Lords, I thank the noble Lord, Lord Nash, for his response, which I thought was very positive and constructive. I know that he has listened very carefully to the arguments that have been put forward, both inside this Chamber and outside it—there have been, as others have said, a lot of people in the sector campaigning hard for further progress in this area. I was encouraged by quite a few of the things that the noble Lord said. I will not run through them all, but I noted in particular what he said about the further work to be done to guidance and regulations to more fully underline the importance of integrated assessments and of giving really good consideration to mental health and emotional well-being issues.

    I am very encouraged by and was grateful to hear the commitment that he made today at the Dispatch Box, announcing that there will be, I think he said, between six and 10 pilots starting in April or May next year, to test out new approaches to mental health assessments for children in care. As he said, this will happen in parallel to the valuable and important work of the expert working group. I consider this to be a really important step forward, so I am very grateful to him and I look forward to making any contribution that I can to the development and implementation of these pilots. I thank him and all noble Lords who have participated in this discussion and I will say again how pleased I am by this progress. I beg leave to withdraw the amendment.

  • Amendment 1 withdrawn.

    Clause 2: Local offer for care leavers

    Amendment 2

    Moved by

  • 2: Clause 2, page 2, line 39, at end insert—

    “( ) relationships;”

  • My Lords, as noble Lords will be aware, Clause 2 requires local authorities to consult on and publish a local offer for care leavers. The local offer will set out the services provided by a local authority to assist its care leavers as they move into adulthood and independent living. It should include services relating to health and well-being, education and training, employment, accommodation, and participation in society. On Report, noble Lords expressed concern that services relating to relationships were not included in this list. I recognise this concern and agree that strong and supportive relationships are critical to supporting care leavers to lead successful independent lives. I committed to consider in detail whether an amendment to the Bill would be the best way of securing the necessary progress in this area and, on reflection, we believe that it would. I have therefore tabled this amendment to add services relating to relationships to Clause 2. If local authorities believe that particular services may assist care leavers in or in preparing for adulthood and independent living, they will now have to publish information about these services as part of their local offer, alongside information about services relating to the other five areas stipulated in the clause.

    The remainder of the amendments in this group should not, I hope, detain the House for too long. They are a set of technical and consequential amendments relating to Part 1 of the Bill. Amendment 7 allows regulations relating to local reviews of serious cases of harm and abuse that would otherwise be made under the negative scrutiny procedure to be made under the affirmative procedure. This will allow the Government to bring forward regulations relating to both local and national reviews for the House’s scrutiny in a single instrument, ensuring greater coherence and making best use of the House’s time. The other amendments create a new schedule to the Bill, which comprises changes necessary to existing legislation as a consequence of the substantive changes we have debated on the Bill.

  • My Lords, I thank my noble friend the Minister for bringing forward this welcome amendment—Amendment 2. It follows an amendment I tabled in Committee and on Report, to which the noble Baroness, Lady Tyler, my noble and learned friend Lord Mackay of Clashfern and my noble friend Lady Hodgson put their names. I am grateful to them for their enthusiastic support and for speaking so eloquently in the various debates. I tabled that amendment because it would remedy a serious omission in the list of the areas of support that local authorities are required to include in their local offer.

    Recently, North Tyneside Council rallied staff across the authority to improve the employment outcomes of care leavers. Experience taught the council that it would need to be very intentional about ensuring that young people have at least one strong relationship with someone who genuinely and obviously thinks they matter. The council also knew that it would have to help them be part of a supportive network. This emphasis had to be explicitly stated if it was to become embedded in everyone’s practice.

    There is a dynamic to this: it is not simply a case of providing young people with an adult who will keep in touch with them and to whom they can turn. Young people need to know how to maintain and grow relationships and how to work through conflict and avoid destructive feuds. Disruptions in attachment processes often lead to an understandable but ultimately vicious circle of an “I’ll reject them before they reject me” pattern of behaviour. Many long for independence far earlier than they can handle it because they do not want to be let down again. Furthermore, our individualistic culture seems to endorse the natural inclination to go it alone and avoid hurt. Not having relationships to draw on can also result in these young people being unbearably lonely, which can have severely negative effects on their health and well-being. It can undermine their education, their ability to maintain a tenancy or other accommodation and manage work, and their financial security. If they do not understand bills, they can easily get into arrears and debt, which can be quite terrifying. Such life skills often develop through a process of guided mastery—encouragement and guidance from someone who is genuinely concerned about them.

    In summary, healthy and supportive relationships are fundamental to the other five areas included in the local offer. The Government’s amendment has the potential to tackle the haphazardness of current arrangements which mean that it is not automatic, and is probably highly unlikely, that young people will receive help and advice in the area of relationships.

    Given the careful attention that the Minister and his team paid to this matter, I hope that this amendment is a portent of a more relational approach in many other areas of policy. Given the enthusiastic support from across the House that this amendment has received, I am sure that many other noble Lords would agree.

  • My Lords, I thank the noble Lord, Lord Farmer, for his work and persistence in this area. I recall a 28 year-old woman with experience of the care system who recently married a lovely man, an accountant. She had had the most terrible start in life and never met her father until she was 16. She talked in public about her experience at university and the relationships she had with the women with whom she shared a house while at university, who visited her and comforted her when she often fell into depression and withdrew to her room and isolated herself. I commend the noble Lord for his perseverance on this matter. I am very grateful to the Minister for listening to him and bringing forward this amendment today.

  • My Lords, I welcome and support this government amendment. I too thank the noble Lord, Lord Farmer, for pursuing this matter so very vigorously in Committee and on Report. “Relationships” is just one word but in my view it makes such a difference. If this amendment is accepted, as I hope it will be, it will enrich the Bill and make an immense difference to the lives of troubled children entering and leaving care respectively, if the measure is implemented in the way so many of us have argued for. It sends an important message to local authorities, professionals, social workers and others about the importance of relationships in children’s lives and what an important part of their practice it is.

  • My Lords, I too welcome the amendment. The local offer for care leavers and the corporate parenting principles are two of the most valuable aspects of the Bill to emerge. Of course, they were originally in the Bill and we have sought to improve them. The inclusion of the term “relationships” is certainly one of those improvements. I will add just one thing to what the noble Lord, Lord Farmer, said. The question of relationships is not just about having someone to whom the child or young person can relate but about having the ability and the knowledge to build relationships in his or her adult life so that, we hope, that can confirm stable relationships for them and their own children. I support Amendment 2 and the somewhat impenetrable Amendment 12, which is consequential, and the other consequential amendments which the Minister has put forward in his name.

  • My Lords, I am grateful to my noble friend Lord Farmer for driving this point so forcefully and to the noble Earl, Lord Listowel, the noble Baroness, Lady Tyler, and the noble Lord, Lord Watson, for their positive contributions to today’s debate. I also thank my noble and learned friend Lord Mackay of Clashfern and the noble Lord, Lord Warner, for speaking on this important issue on Report. I am pleased to have been able to respond positively to them and I hope noble Lords will welcome and accept the amendment.

  • Amendment 2 agreed.

    Amendment 3

    Moved by

  • 3: Clause 2, page 3, line 34, leave out subsections (8) and (9)

    Amendment 3 agreed.

    Amendment 4

    Moved by

  • 4: After Clause 9, insert the following new Clause—

    “Chapter 1: consequential amendments

    Schedule (Part 1 of this Act: consequential amendments) contains amendments consequential on this Chapter.”

    Amendment 4 agreed.

    Clause 12: Functions of the Panel

    Amendment 5

    Moved by

  • 5: Clause 12, page 12, line 8, leave out subsection (2)

    Amendment 5 agreed.

    Clause 15: Local arrangements for safeguarding and promoting welfare of children

    Amendment 6

    Moved by

  • 6: Clause 15, page 13, line 33, leave out subsection (2)

    Amendment 6 agreed.

    Amendment 7

    Moved by

  • 7: After Clause 27, insert the following new Clause—

    “Regulations under provisions inserted by sections 12, 15 and 16

    In section 66(3) of the Children Act 2004 (regulations subject to affirmative procedure), after “12B(1)(b)” insert “, 16B (whether alone or with regulations under section 16F), 16E(3)”.”

    Amendment 7 agreed.

    Clause 28: Abolition of Local Safeguarding Children Boards

    Amendment 8

    Moved by

  • 8: Clause 28, page 20, line 5, leave out subsection (2)

    Amendment 8 agreed.

    Amendment 9

    Moved by

  • 9: After Clause 29, insert the following new Clause—

    “Chapter 2: consequential amendments

    Schedule (Part 1 of this Act: consequential amendments) contains amendments consequential on this Chapter.”

    Amendment 9 agreed.

    Amendment 10

    Moved by

  • 10: After Clause 29, insert the following new Clause—

    “Duty to have due regard to United Nations Convention on the Rights of the Child

    (1) A public authority must, in the exercise of its functions relating to safeguarding and the welfare of children, have due regard to the United Nations Convention on the Rights of the Child.(2) For the purposes of this section—“public authority” has the same meaning as in section 6 of the Human Rights Act 1998, and“United Nations Convention on the Rights of the Child” has the same meaning as in section 2A(2) of the Children Act 2004.”

  • My Lords, in addressing the House on Amendment 10, I disclose my interests as president of the Weidenfeld Fund, which focuses on bringing children of Christian faith to this country using resources provided by Jewish members of the community here. I also refer to my membership of the Joint Committee on Human Rights, which recommended the amendment we are considering.

    On Report, the focus was on a similar amendment tabled by the noble Baroness, Lady Walmsley, who also supports this amendment. She was supported by my noble friend Lord Ramsbotham, the noble Baroness, Lady Wheeler, and the noble Lord, Lord Judd. That amendment was not moved and is not being pursued today. Amendment 10 makes it clear that all it requires is that when public bodies perform their functions, the authorities have to take into account the provisions of the United Nations Convention on the Rights of the Child.

    In opposing both amendments on Report, the noble Lord, Lord Nash, displayed his customary eloquence in his enthusiasm for the United Nations convention. He said:

    “Since the summer, the Government have reaffirmed their commitment to the UNCRC through a Written Ministerial Statement from the Minister for Vulnerable Children and Families. This reinforced our view that to achieve implementation of the UNCRC, every department across Westminster must be proactive in considering children’s rights in policy-making”.

    I agree, and the objective of the amendment is to ensure that that happens. The Minister referred to a letter from the Permanent Secretary to his counterparts across government, challenging them and all their officials,

    “to keep the principles and conventions of the UNCRC at the centre of their policy-making and implementation, and to engage children and young people in the process”.

    He also referred to talking to the Children’s Commissioner,

    “about how she might hold government to account in this respect”.

    He expressed gratitude to noble Lords for tabling the amendments to which I have referred, and indicated:

    “There are a number of additional steps we could consider, and we are keen to explore the benefits of the different potential approaches before deciding what further action might be taken”.—[Official Report, 8/11/16; col. 1089.]

    Having regard to those remarks, I suggest that it is surprising that the Government are not welcoming this amendment enthusiastically and with open arms. It would place a minimum responsibility on the Government and require them to do no more than have,

    “regard to the United Nations convention”.

  • On Report, the explanation the Government advanced for not accepting the amendment was that they believed the best way to promote children’s rights was to listen to children and to act in ways that best meet their needs. In the Minister’s words:

    “A duty alone will not do that, and risks practitioners focusing on the wording of the legislation rather than on practice”.—[Official Report, 8/11/16; col. 1089.]

    Although I fully appreciate that there are good reasons for a Minister to focus on practitioners listening to children, I do not accept that the amendment could have the risks to which he refers in what the Government are commendably seeking to achieve. In addition, I suggest that the Government are failing to give sufficient weight to the adverse consequence of the impression that will be created by their opposition to the amendment when both the Government of Scotland and the Government of Wales have already exercised their delegated powers to give some statutory recognition to the convention. Those Governments say that positive results are being produced from the action they have taken, as one would expect, and we would like to see similar positive results here.

    Earlier, the Government indicated that they do not wish to encourage a box-ticking approach to the convention, but again I question why it should be thought that this amendment will encourage such an approach. On the contrary, by giving statutory recognition to the convention in domestic law, the amendment would give it a higher status than it has at present. That increase in status would underline the admirable policy to which the Minister has eloquently referred while at the same time avoiding the risks that could follow in failing to accept the amendment. These are times when children need every bit of protection that can be provided. Organisations that seek to improve the position of children in this jurisdiction would be greatly encouraged by the Government demonstrating their commitment to the principles set out in the convention, in the way the amendment would achieve.

    On Report, my noble and learned friend Lord Hope of Craighead drew attention to the fact that the Supreme Court, during his period as a justice of that court, always paid close attention to the convention. In addition, he drew the House’s attention to the Court of Appeal case of P-S (Children) in 2013, EWCA, Civil Division 223. In a judgment in that case, Sir Alan Ward indicated that it was appropriate for a child to be allowed to give evidence in our domestic courts because of Article 12 of the UN convention, although the convention is no part of the domestic law of this country. Like any other treaty, the convention is binding on the Government in international law but is not part of our domestic law unless it is incorporated into domestic law by statutory authority. The noble and learned Lord, Lord Hope, who cannot be hear this afternoon, stated that,

    “it would seem far better that England and Wales should follow the example of Scotland and legislate to put the matter beyond any doubt”.—[Official Report, 8/11/16; col. 1087.]

    I strongly endorse those words and hope that the Government will listen to them.

    The Government should not miss this opportunity to give limited recognition to a convention that seeks to achieve exactly the same results as they do. Parliament in Westminster should be as committed to the protection of our children as the parliaments in other parts of the United Kingdom. One is bound to inquire whether any other statutory vehicle could be used in the near future for this purpose. So far, I have not been able to ascertain the existence of any other such statutory vehicle.

    On 16 November, the chairman of the Joint Committee on Human Rights wrote to the Minister in the other place. Today, we received a response—it was not positive. In the committee’s letter we referred to the fact that the amendment had attracted cross-party support at Report. We asked the Minister to set out the Government proposal that makes the committee’s recommendation unnecessary, including precisely how the Government will bring about the change the committee has asked to see, the timetable on which they propose to make the change and, if legislation is required, when that will be brought forward. The response we received today did not deal with the matters to which I have just referred with any clarity at all.

    In addition to the views of the Joint Committee, the Equality and Human Rights Commission has also confirmed that this amendment is needed. In these circumstances, surely the Minister can give us the reassurance we are seeking: that in due course, statutory recognition will be given to the convention so that it becomes part of our domestic law and can benefit our children in the way that it cannot at this stage. I beg to move.

  • My Lords, I strongly support this amendment and very much regret that the Government have failed in their promise to the noble and learned Lord, Lord Woolf, and I that action would be initiated across Whitehall before this Third Reading to consult on how the public duty to have regard to the UNCRC, which is what our amendment asks for, would affect the work of government and the well-being of children. We were promised that that work would start, with particular regard to the possibility of introducing either the Scottish or Welsh model of protecting children’s rights, before today. As far as we have been informed, it has not. That is why we are justified in bringing this amendment back at Third Reading. We still need clarification on whether and when the Government intend to keep that promise and how Parliament will be informed of their progress.

    When in doubt, I always return to the convention itself. It may be informative to remind your Lordships of what we have been bound by the convention to do for the past 25 years. Article 4, on the protection of rights, states that the Government,

    “shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources”.

    That is not unreasonable. Article 20 states:

    “A child temporarily or permanently deprived of his or her family environment”—

    the children we are talking about in the Bill—

    “or in whose … best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State”.

    That is another very relevant article. We feel it is very important to the scope of the Bill to put a duty into primary legislation to ensure the delivery of these rights.

    In Scotland they have a very specific procedure, which I have read, to make sure there are impact assessments at every level to ensure that these rights are delivered. We have not got that in England yet. That is why the UN Committee on the Rights of the Child, in its report in June this year, in general comment number 9, recommended that we:

    “(a) Introduce a statutory obligation at national and devolved levels to systematically conduct a child rights impact assessment when developing laws and policies affecting children, including in international development cooperation”,

    and,

    “(b) Publish the results”.

    As to its general comment number 14 in its 2013 report on the right of the child to have his or her best interests taken as a primary consideration, the committee recommended this year that we should, first, ensure that this right is appropriately integrated and consistently interpreted and applied in all legislative, administrative and judicial proceedings and decisions as well as in all policies, programmes and projects that are relevant to and have an impact on children; and, secondly, develop procedures and criteria to provide guidance to all relevant persons, and so on.

    The case is made by the convention under the UN committee for our amendment. We signed up to that convention 25 years ago and, although we have made some progress, there is a great deal further to go, especially in relation to children who are particularly vulnerable because they are in care or have recently left care.

    If the Government will not accept this amendment and insist on pursuing a non-legislative approach to children’s rights, will the Minister commit to introducing a child rights framework across government and assure us that the impact of such a framework will have the same effect as the due regard duty?

    Three hours ago I received a short statement—one paragraph—from the Minister, Edward Timpson, referring to his commitment to the convention. It says:

    “The possibility of extending this to legislation is still under review. No decisions have been taken about this and officials are continuing to explore the pros and cons”.

    He went a little further in a letter to Harriet Harman—a copy of which I have received and which has been mentioned by the noble and learned Lord, Lord Woolf—and said:

    “We are now planning a programme of action which will build awareness and lead to greater consistency in the way in which children’s voices and views are heard, and policy developed across Whitehall”.

    Will the Minister set out how and, importantly, when this framework will be introduced to ensure that children’s rights are not kicked into the long grass once the opportunity presented by this Bill has passed? I hope the Minister can give this specific information about the Government’s actions and plans.

  • My Lords, I warmly support the amendment. I declare an interest—I am half English and half Scottish. The Scottish half of me is delighted and proud that this is on record in the legislation of Scotland. I am unhappy—I have an internal conflict—in the English half that we have not yet reached that point of enlightenment. I would like that internal conflict reconciled as quickly as possible.

    However, there are other issues of a more profound nature. In this House, of all places, we take the rights and interests of children extremely seriously. Many noble Lords are personally caught up in work associated with the well-being of children. Any convention, of itself, cannot provide what is necessary, which is an operational and real culture that self-evidently demonstrates at every level of society and in all its actions that children have the rights and priority needs to which the convention refers. The convention is there to underpin what should be a culture. Of itself, the convention cannot be a substitute for the culture. It provides an important underpinning of the culture and is a strong ally of those who want to build up that culture, rather than having it as an additional burden to be taken into account by people who are doing their job. It should be central to their work and it is well expressed in the convention.

    There is another reason that motivates me to speak to the amendment. I find it reassuring that we have repeatedly been told that in the context of Brexit the British Government are determined that we should continue to be an international player in the world’s society. Everyone knows that Britain played an active and imaginative part in ensuring that the convention came about. Our credibility in international affairs lies not just with the rhetoric that is undertaken at the diplomatic level on these matters, but in the degree to which what is achieved in those diplomatic circles is reflected in action and commitment in our society as a whole. We undermine our role in international affairs if we become a sort of representative of the speakeasy club where people say nice things and make nice conventions but do not do anything about them in terms of their implementation.

    I am not suggesting that we do not do anything because that would be ridiculous. A great deal of good work goes on in government circles. However, the amendment is extremely helpful and pertinent, and I can only say to the Minister that looking at it from the point of view of those outside the Government, if they do not endorse the convention when it has been incorporated in, for example, Scottish law, it is inevitable that there will be a suspicion that for some reason they find it difficult to do and about which they have reservations in terms of the challenges we face. If that is the case we ought to have it out in the open, but I hope that it is not. I therefore hope that the Minister can meet the spirit of what is being argued for in this amendment.

  • My Lords, I support this amendment and I agree very much with what the noble Lord, Lord Judd, has just said. One other way of looking at the convention is that it acts as a useful nudge for people to remember what it is that they ought to have in mind.

    The year 1989 was extremely important because not only did we pass the Children Act, it also saw the United Nations convention. It is extraordinary that for some reason this country, England, is lagging behind Scotland and Wales which have managed to put it into their primary legislation while we are failing to do so. When I was a judge I tried a great many family cases. Whenever I heard a case relating to children, of course I took the United Nations convention into account, and I always thought it rather odd that there I was, applying the statutory law of the Children Act and going outside it to apply the United Nations convention that for some reason the Parliament of our country was not prepared to pass as part of English law. Here we are, all this time later in 2016 and we have fallen behind the smaller parts of this wonderful United Kingdom. It really is about time that we caught up and I find it extraordinary that the Government are not welcoming this with open arms.

  • My Lords, I strongly support the amendment and the arguments that have been put so far. I will not repeat what I said on Report but I did raise two questions that I did not feel were answered. I asked the Minister to spell out what further evidence, beyond the evidence we have from the experience of Scotland and Wales which we have heard a little about today, the Government need to convince them of the practical value of such a duty. They have been arguing that they do not see what the practical value is. I also asked what evidence they had that it would produce box-ticking rather than cultural change. What the Minister did say was quoted by the noble and learned Lord, Lord Woolf, earlier and I shall repeat it:

    “We believe that the way to promote children’s rights is for strong practitioners locally to listen to children and to act in ways which best meet their needs. A duty alone will not do that, and risks practitioners focusing on the wording of the legislation rather than on practice”.—[Official Report, 8/11/16; col. 1089.]

    Of course a duty alone will not do that, but surely practice underpinned by a duty is more likely to be good practice than practice that is not underpinned by a duty. Like the noble and learned Lord, Lord Woolf, I am surprised and disappointed that the Government are so resistant to what is, as he put it, such a minimal responsibility that will be placed on them. As we said, it sends out all the wrong messages as to this Government’s commitment to the UN convention.

    It is good to hear that the Government have said they are still considering this issue. Given they know that there is so much support in this place it is a shame they have taken their time considering it, but can we have a commitment that when the Bill goes to the House of Commons, a clear statement will be made by the Minister there as to what will be done to reflect the very strong views expressed in this House and which I am pretty sure will be expressed in the other place also?

  • My Lords, I, too, strongly support the amendment, but as a sceptical old Whitehall warrior, I will open up an issue that may suggest it is not the Minister and his colleagues in his department who might be the villains in this area, but other interests across Whitehall. As I understand it, if the Government accept the amendment they will then have to accept amendments relating to all the other services that are of concern to children. It would be very difficult for them to accept the amendment if they have reservations about the cumulative effect of implementing the convention in this way through statute for all the services that may affect children.

    My suspicion about Whitehall, because I am of a suspicious nature given my background, is that there are problems around an impact assessment on what the implications of all this may be. Instinctively I feel that somewhere in this mix are our old friends at the Treasury and the control of public expenditure. They are often to be found when we have these long periods of inaction in any particular area. Some of the areas where children could be seriously affected—clean air, benefits and access to health services to name but a few—go much wider than the scope of the Bill.

    I do not expect the Minister to divulge the workings of government, but can he throw any light on whether it is necessary to provide across Whitehall an impact assessment on what the costs of implementing this through statute would be? Do the processes by which these things have to be agreed across Whitehall have any chance of being agreed before the Bill completes its passage through Parliament?

  • My Lords, I support everything that has been said and pick up on the words of my noble and learned friend Lord Woolf. It is very sad that the last two reports of the UN committee coming to this country have started with the words that they regret that so little has been done to implement the recommendations they made five years earlier. If, as my noble and learned friend has suggested, the convention or the causes should be made the centrepiece of cross-government action in this area, then there is a solid basis for all affected ministries in Whitehall to rally round and make certain that their contribution to what is required is not criticised the next time the committee visits.

  • My Lords, I do not think that we should worry too much about my noble friend Lord Warner’s point, to which I shall return—the Cross Benches are not always at one on these matters. I have not spoken on this Bill before, but felt I had to intervene because in 1989 I was with Save the Children and remember the excitement at the convention and the Children Act that followed it. Save the Children was already translating those duties into its own policies and activities and it must be horrified that they have not been extended into all government services. We have already heard evidence from CRAE—the Children’s Rights Alliance for England—and UNICEF that statutory child rights duties have a real impact on children’s lives. Perhaps I may quote just one sentence from its briefing, which states:

    “A child rights framework such as would be created by this amendment will embed the CRC in children’s services and within other public authorities working with children and families no matter where they are, and enable public authorities to better safeguard, support, promote and plan for the rights and welfare of children in their area”.

    My noble and learned friend said that the amendment would place a minimal responsibility on government. Surely we are convinced by that and not by the words of the noble Lord, Lord Warner.

  • My Lords, the noble Baroness cited articles from the United Nations Convention on the Rights of the Child. One article which is very important to me is Article 39, which sets out the right for children who have suffered trauma, whether through war or through family abuse, to receive therapy and all the support needed to recover from such trauma. That article speaks directly to the amendment tabled earlier by the noble Baroness, Lady Tyler. If this amendment had been incorporated into legislation 10 years ago, perhaps we would not now be discussing how we have ignored the mental health of looked-after children during the past 10 years. We would have respected the UNCRC and already delivered the services. I am grateful for the sympathetic message that the Minister of State for Children, Edward Timpson, has given the noble Baroness, Lady Walmsley.

  • My Lords, as the House will know, we on these Benches have given our support on this important issue both in Committee and on Report. We strongly agree with the principle that the UN Convention on the Rights of the Child should be incorporated into statute. We support the call for this from the Joint Committee on Human Rights, the Equality and Human Rights Commission and the Children’s Rights Alliance for England, and agree with the strong case put forward by the noble and learned Lord, Lord Woolf, and other noble Lords today and at previous stages. We fully understand why the amendment has been put forward today.

    However, we do not support the case for incorporating the amendment at this late stage in the Bill. Instead, we would prefer discussions and work to continue through to the Commons stages. Noble Lords have heard from Ministers during debate on the Bill that the Government are committed to the UNCRC and are working on their response to last year’s UN committee report on the rights of the child and on addressing the serious concerns raised by it.

    We understand that they have also said that they are “sympathetic” to the Scottish model of legislation, placing a duty on Ministers to report on impact and improvements to children’s rights, and have begun discussions with both the Scottish and Wales devolved Governments on their experience of how the different models of legislation recently adopted in their respective countries are operating. They are also having discussions with the Children’s Commissioner and have underlined to government departments across Whitehall and to local authorities and other public bodies that consideration of children’s rights should be at the centre of policy-making and implementation.

    However, we do not have from the Government a comprehensive and clear plan and programme of how this work is being brought together into a coherent, proactive strategy for addressing the UN committee report’s concerns and for taking this work forward. The Government urgently need to commit to this, with clear proposals and timescales, particularly for evaluating how the Scottish and Wales models are working and for full consultation with local authorities and other public bodies on how they might implement the “have regard” or the “reporting” duties. Obviously, ongoing dialogue with UNICEF and CRAE is vital, as is discussion on the legal issues and implications underlined by the noble and learned Lord, Lord Woolf.

    The Government cannot just keep referring to the need to avoid bureaucracy and tick-box assessments—we all want to do that, and we do want that sort of approach from the Government in how they respond to the UN committee. What we need instead is a strategy that will achieve consistency and action across government and local authorities and address the huge variation across the country in how outcomes and impact on children’s rights are currently assessed.

    There is already strong evidence that the measures taken in both Scotland and Wales are having a meaningful and practical effect on children’s lives. We know that this is how the change in mindsets and culture that we all want can be brought about. I look forward to hearing from the Minister how the Government plan to take this work forward in the light of today’s discussion on the amendment so that progress can be made before the Bill commences its Commons stages.

  • My Lords, I am grateful to the noble and learned Lord, Lord Woolf, the noble Baronesses, Lady Walmsley and Lady Hamwee, and the noble Lord, Lord Ramsbotham, for this amendment and for raising this important matter of the United Nations Convention on the Rights of the Child. I am also grateful for the contributions to today’s debate from the noble Baronesses, Lady Lister and Lady Wheeler, the noble and learned Baroness, Lady Butler-Sloss, the noble Earls, Lord Sandwich and Lord Listowel, and the noble Lords, Lord Warner and Lord Judd. We had a helpful discussion of the issue on Report, and today’s discussion has been helpful as well. There is a lot of common ground between us though perhaps we take different approaches over what needs to happen next and what could have the most impact in changing culture and behaviour and improving the way we consider children’s rights in policy-making.

    Let me start by again emphasising the Government’s commitment to children’s rights. No one questions the importance of the UNCRC and we are fully committed to giving due consideration to the articles when making new policies and legislation. We are equally determined to safeguard and promote the welfare of all children. Nothing could be more important.

    As noble Lords are aware, this commitment is already enshrined in existing legislation and statutory duties. The Children Act 1989 and the Children Act 2004 set out a range of duties to safeguard and promote the welfare of children. Specifically, Section 11 of the Children Act 2004 places duties on a range of organisations including local authorities, the police, health services and a variety of other agencies to ensure their functions and any services that they contract out to others are discharged having regard to the need to safeguard and promote the welfare of children. In 2013, we issued statutory guidance to directors of children’s services which requires them to have regard to the general principles of the UNCRC and ensure that children and young people are involved in the development and delivery of local services.

    In addition to legislation, a range of monitoring practices is also in place. Through the single inspection framework, Ofsted assesses the experiences of children and young people, tests the thresholds for providing help, care and protection, and evaluates the quality of this support. This reporting process is independent. Forcing local leaders to produce similar five-yearly reports is unlikely to offer the same level of scrutiny. Of course, we should not forget the role of the Children’s Commissioner. The Children and Families Act 2014 gave the Children’s Commissioner the explicit function of promoting and protecting the rights of children, having particular regard to the UNCRC and making sure their best interests are brought to the attention of decision-makers, both locally and nationally.

    However, we would fully accept that there is more to do to embed the UNCRC in policy and practice. Across the UK, there are differing approaches to securing ministerial commitment to the UNCRC. Scotland and Wales have both gone down the route of putting a duty on their Ministers in regard to children’s rights and the UNCRC. In Westminster, our prime objective is to bring about sustained change to the culture that does more than force officials and practitioners to take greater account of the UNCRC—the noble Lord, Lord Judd, referred to this. We want policymakers and others to see the value of the UNCRC in their everyday work. Only last month, Minister Timpson spoke at a parliamentary event and—as the noble and learned Lord, Lord Woolf, mentioned—laid a Written Ministerial Statement reinforcing the message that, to achieve implementation of the UNCRC, every department across Westminster must be proactive in considering children’s rights in policy-making. As the noble and learned Lord also mentioned, the DfE Permanent Secretary, Jonathan Slater, wrote to his counterparts across government, challenging them to keep the convention at the heart of their policy-making and implementation, and to engage children and young people in the process.

    We are determined to follow this through with a number of measures designed to embed children’s rights across Whitehall and beyond. These include introducing a programme to raise awareness of UNCRC among civil servants, with an understanding of what it means to have regard to the articles when carrying out public duties in relation to children. The programme will include a new core learning and development offer through Civil Service Learning, and an offer through the policy profession led by the director-general for children’s services and the chief social worker. This work will begin in January 2017 with the learning and development offer in place within six months. This goes further than we have gone previously in making training an integral part of Civil Service development. I am sorry that the noble Baroness, Lady Walmsley, believed that we had promised to start this earlier. I understand that we committed to look at all the options, including the models adopted by the devolved Administrations. We have had information from Scotland and Wales and are considering it. I hope the noble Baroness is reassured by my statement that we will start this programme in January.

    We also have a commitment to work with the Joint Committee on Human Rights in its plans to develop a template for child rights impact assessments and on any associated guidance and good practice. We will host a round table in January next year with a range of stakeholders, including UNICEF and the Children’s Rights Alliance for England, to explore how we can develop a framework for this work. We will make sure there is input from those with experience and expertise who can support us to change behaviour and culture and promote children’s rights in policy-making at both local and national level. We will work with UNICEF and others to spread best practice from local authorities which have a good track record in promoting children’s rights and articulate the principles and values associated with that practice. At the next review of the statutory guidance Working Together to Safeguard Children, we will consider how the underpinning principles can be strengthened to reflect children’s rights, and we will, of course, continue to discuss and review progress with relevant non-governmental organisations.

    The noble Baroness, Lady Lister, asked about evidence. As part of our consideration of implementation of the duties in Wales and Scotland, we will be considering the impact on children of policy-making. We know that UNICEF and others have some rich evidence, and we have asked them to provide it to us for further consideration. The noble Lord, Lord Warner, asked about impact assessments. There is already a strong recommendation within the Cabinet Office guidance to carry out impact assessments for new legislation.

    I hope this reassures noble Lords of our wholehearted commitment to children’s rights. We will continue to observe and assess the results of the various approaches to implementing the UNCRC and will be very pleased to involve noble Lords who wish to be involved in that ongoing work. I appreciate the arguments that noble Lords have used to support the amendment, but I hope that our firm commitment to the UNCRC and our plans further to promote and embed it will convince the noble and learned Lord that his amendment is unnecessary.

  • I thank the Minister for that response and I thank all noble Lords who have contributed to this debate. I particularly thank the noble Baroness, Lady Walmsley, whose support I found essential during earlier events, especially when visiting Ministers about this matter. I pay particular attention to what the Minister said. As he spoke, I was very much reminded of what the noble Lord, Lord Judd, said about the importance of the convention underpinning what the Government are doing, which we applaud. Does the Minister still not think that instead of underpinning the convention he might be undermining it unintentionally? I hope he will take that thought away and that by the time the matter arrives in the other place the Government will have had a rethink on this matter. I beg leave to withdraw the amendment.

  • Amendment 10 withdrawn.

    Amendment 11

    Moved by

  • 11: After Clause 53, insert the following new Clause—

    “Review by independent person

    (1) The Secretary of State must commission an independent person to—(a) review the operation of this Part during the review period, and(b) send a report to the Secretary of State on the findings of the review.(2) In carrying out the review the independent person must consult representatives of social workers in England and anyone else that the person considers appropriate.(3) On receiving the report the Secretary of State must lay it before Parliament.(4) The Secretary of State must also lay before Parliament a response to the report.(5) The review period is 5 years beginning with the day on which section 33(1) comes fully into force.”

  • My Lords, during our debate on Report, I signalled my commitment to table an amendment that ensures that an independent review of the provisions in Part 2 takes place. Amendment 11 meets that commitment. On Report, noble Lords spoke of the need to ensure that these provisions remain fit for purpose. I agree—in fact I believe I astonished the noble Lord, Lord Warner, with that agreement—that it is crucial that these provisions bring about the reforms that are needed and that they remain fit for purpose.

    This amendment ensures that an independent review is undertaken within five years from the point that Social Work England becomes fully operational. The review will be able to cover all aspects of Part 2 of the Bill. Those undertaking the review must consult with representatives of the social work profession and anyone else that they consider appropriate. Following the review and discussions with Members in the other place and noble Lords, the Secretary of State for Education and the Secretary of State of Health will be required to publish a response to the review.

    As noble Lords are aware, to ensure the effective operation of Social Work England and that robust independent oversight measures are in place, the Professional Standards Authority will undertake independent reviews on how Social Work England discharges its functions. This new amendment further strengthens the independent scrutiny of Social Work England.

  • My Lords, I have recovered from my astonishment at the Minister’s concession on Report. I am delighted to support this amendment, which is far more elegant than the one that I produced.

    While am on my feet, I thank the Minister for all his efforts throughout the passage of the Bill for the constructive way in which he has approached what is sometimes been a robust approach from some quarters of the House to some of his proposals. That has always been done in a thoughtful way, and I am grateful to him, to Edward Timpson and to his officials for the way that they have approached the Bill and the amendments we have proposed.

    Before I sit down, in listening to the debates on the importance of personal relationships, it occurred to me that he might draw the importance of personal relationships to the attention of those Ministers who are interacting with their counterparts in Europe because there could be some useful lessons to be learnt from the debates in this particular House.

  • My Lords, I do not think I will follow that comment.

    If the noble Lord, Lord Warner, was astonished, I was certainly very pleased with the way in which the Minister acknowledged on Report that this is an important issue. I welcome the amendment. I take the opportunity of thanking the Minister, the honourable Edward Timpson in the other place and officials in both the Minister’s department and the Department of Health for the tremendous amount of work they have done in response to the issues raised. We are very satisfied with the outcome.

  • My Lords, we are all aware that social workers play a critical role in our society. It is in order to protect the public that we need a strong bespoke regulator committed to the social work profession. With noble Lords’ assistance and engagement, I am confident that we have arrived at a strengthened position and an improved model for the new regulator.

    I believe the provisions in Part 2 of the Bill will lead to the establishment of an effective and successful bespoke regulator for social workers, with appropriate independence from government and clear oversight from the Professional Standards Authority. It is right, though, that these provisions are reviewed, and this amendment will ensure that that happens. I therefore hope noble Lords are able to accept this amendment. I am pleased that we are able to finish on such a positive note.

    Before I sit down, I take this opportunity to say a few words of thanks to the House. Your Lordships’ House has been unwavering in the rigour and attention to detail that it has brought to bear as we have debated the Bill. I know that on occasion there has not been as much time as noble Lords would have liked to consider the provisions of the Bill before they have been debated, and I know that I have made further demands on noble Lords’ time through meetings, briefings, letters and policy statements. I can only apologise and say how grateful I am for the efforts that have been taken to bring the House’s expertise fully to bear on these matters.

    I also thank my ministerial colleagues, particularly of course the Secretary of State and the Minister for Vulnerable Children and Families, who will now be taking the Bill on its next steps. I join noble Lords today in thanking officials, and I shall certainly take back their kind words to everyone involved in the department. In closing, I note the co-operative approach that has been taken on all sides and thank the House again for its constant efforts to find common ground in the best interests of all our country’s children.

  • My Lords, before the Minister sits down, I, too, should like to say a few words about the Bill, as it proceeds to another place. First, I record the thanks of these Benches for the advice and support supplied by the clerks and the Public Bill Office. It is not often that a Lords starter Bill moves down the Corridor containing such a plethora of changes from the form in which it was introduced to your Lordships’ House six months ago. To some extent, that is a reflection of the form in which it was received—which, noble Lords may recall, prompted Labour to take the unusual step of submitting an amendment on Second Reading regretting that Part 2 was bereft of detail, a fact drawing criticism from both the Constitution Committee and the Delegated Powers Committee.

  • Since then, a significant number of concessions have been achieved from the Government—by my calculation, a total of 15, including the one today on mental health assessments. That demonstrates three things: first, that we can achieve progress not just by voting, because only one of those issues was resolved by a vote; secondly, that preparing reasoned and well-researched amendments can and does improve legislation; and, thirdly, which may well be regarded as a concession from me, that when they have got it wrong, the Government are on occasion capable of admitting as much.

    I should like in passing to draw attention to the work involved in preparing amendments and arguments. If I may be slightly light-hearted, I believe that neither of the Ministers served as Opposition Front Benchers, so they may not appreciate that we on this side research and write all our own speeches—that applies to the other parties and the Cross-Benchers as well, of course. Unlike Opposition MPs, we do not have any staff. My noble friends Lord Hunt and Lady Wheeler and I had only one legal and policy adviser assigned to work with us on the Bill, Molly Critchley, who worked tirelessly on our collective behalf and deserves much of the credit for the manner in which it has been possible to strengthen the Bill.

    Noble Lords opposite may think that I am using this as a platform to plea for parity, not perhaps of esteem but of resources—actually, I would quite like parity of resources; I am sure we all would. Perhaps Ministers will feel able to take that up and advocate it in the corridors of power. That is not part of my speech, but let me indulge in a little wishful thinking.

    Returning to more serious matters, today the Bill is in a much improved condition. I will not list the concessions, but I welcome the fact that the Minister has been willing to listen. I echo the words of the noble Lord, Lord Warner: the meetings that the Minister and his officials have set up have been of value. That was shown particularly in the part of the Bill pertaining to social workers, to which Amendment 11 refers. I do not think it is unfair to say that the position of the regulator and the review are both now far removed from the Government’s original plans.

    These and many other developments are all to the good, although I have to say that they once again highlight the fact that the Government continue to rush out Bills that lack proper thought or preparation. That is evidenced in this case by the fact that the noble Lord, Lord Nash, has himself introduced more than 150 amendments, several of them containing new clauses. The Government could have avoided much of the pain that they have suffered had they undertaken meaningful consultation with the relevant, very interested sectors which have contributed behind the scenes to the Bill’s progress.

    As the Bill is prepared to move to another place, we at this end of Parliament can point to a strong example of what we do well in your Lordships’ House and why it is more necessary now than it has ever been.

  • My Lords, before the Minister finally resumes his seat, perhaps I may say how grateful I am to him for his consultation. For instance, there was a meeting yesterday with Damian Hinds, the Minister of State for Employment, about our concerns about sanctions for care leavers. Make no mistake: the Bill will make a difference on the ground for young people with the worst start in life. For that, I am very grateful to the Government, the Minister and his officials and colleagues.

  • Amendment 11 agreed.

    Amendment 12

    Moved by

  • 12: Before Schedule 1, insert the following new Schedule—

    “SCHEDULEPART 1 OF THIS ACT: CONSEQUENTIAL AMENDMENTSPART 1AMENDMENTS RELATING TO CHAPTER 1Local offer for care leavers

    1 In Schedule 1 to the Local Authority Social Services Act 1970 (social services functions of local authorities), in the table, at the appropriate place insert—

    “Children and Social Work Act 2016

    Section 2

    Local offer for care leavers.”

    2 In paragraph 1(2)(a) of Schedule 2 to the Children Act 1989 (information to be published by a local authority), in paragraph (i), for “, 23B to 23D, 24A and 24B” substitute “and 23D”.3 In section 135(1)(e) of the Education and Inspections Act 2006 (functions subject to inspection), for “or the Adoption and Children Act 2002 (c. 38)” substitute “, the Adoption and Children Act 2002 or section 2 of the Children and Social Work Act 2016”.4 In section 30 of the Children and Families Act 2014 (local offer for children and young people who have special educational needs or a disability), for “local offer”, in each place it occurs (including the title), substitute “SEN and disability local offer”.Advice and support

    5 In paragraph 1(1)(g) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (kinds of support for which certain people are ineligible), after “23C,” insert “23CZB,”.6 In section 83A(5)(a) of the Apprenticeships, Skills, Children and Learning Act 2009 (apprenticeship offer: application to persons provided with support under Children Act 1989)—(a) for “21” substitute “25”;(b) after “23C” insert “or 23CZB”.PART 2AMENDMENTS RELATING TO ABOLITION OF LOCAL SAFEGUARDING CHILDREN BOARDS7 In Schedule 1 to the Local Authority Social Services Act 1970 (social services functions of local authorities), in the entry relating to the Children Act 2004—(a) for “13 to 16” substitute “16A to 16Q”;(b) omit “targets for”;(c) omit “, and to Local Safeguarding Children Boards”.8 (1) Section 83 of the Children Act 1989 (research and returns of information) is amended as follows.(2) In subsection (1), in paragraph (aa), for “of Local Safeguarding Children Boards;” substitute “of—(i) the Child Safeguarding Practice Review Panel;(ii) safeguarding partners (within the meaning given by section 16E(3) of the Children Act 2004) in relation to local authority areas in England;(iii) child death review partners (within the meaning given by section 16Q(2) of the Children Act 2004) in relation to local authority areas in England;”.(3) In subsection (2) omit paragraph (aa).(4) In subsection (3) omit paragraph (c) (and the “and” before it).9 (1) Section 31 of the Children and Young Persons Act 2008 (supply of information concerning deaths of children) is amended as follows.(2) In subsections (2) and (4), for “appropriate Board” substitute “appropriate authority”.(3) In subsection (5), for “Subsection (6) applies” substitute “Subsections (5A) and (6) apply”.(4) After subsection (5) insert—“(5A) Where the registrar’s sub-district is in England, the registrar must, before the end of the required period, secure that the appropriate authority is notified—(a) of the issuing of the certificate; and(b) of the registrar’s belief and the grounds for it.”(5) In subsection (6)—(a) at the beginning insert “Where the registrar’s sub-district is in Wales,”;(b) omit “Local Safeguarding Children Board in England or”.(6) In subsection (7)(c), for “subsection” substitute “subsections (5A) and”.(7) After subsection (8) insert—“(8A) The child death review partners for each local authority area in England must—(a) make arrangements for the receipt by them of notifications under this section; and(b) publish those arrangements.”(8) In subsection (9) omit “Each Local Safeguarding Children Board in England and”. (9) Subsection (10) is amended as follows.(10) In the definition of “the appropriate Board”—(a) for “Board” substitute “authority”;(b) in paragraph (a), for “the Local Safeguarding Children Board in England in whose area” substitute “in relation to a register kept for a sub-district in England, the child death review partners for the local authority area within which”;(c) in paragraph (b), at the beginning insert “in relation to a register kept for a sub-district in Wales,”.(11) At the appropriate place insert—““child death review partners” has the meaning given by section 16Q(2) of the Children Act 2004;”.(12) Omit the definition of “Local Safeguarding Children Board in England”.”

    A privilege amendment was made.

    Bill passed with amendments and sent to the Commons.

    Bus Services Bill [HL]

    Third Reading

    Clause 4: Franchising schemes

    Amendment 1

    Moved by

  • 1: Clause 4, page 18, line 17, at end insert “, and

    ( ) the Competition and Markets Authority.”

  • My Lords, in moving Amendment 1, I shall speak also to Amendments 4 and 5 in the name of the noble Lord, Lord Bradshaw, who has tabled a number of amendments that aim to restrict the ability of the Competition and Markets Authority to investigate franchising schemes for a period of two years unless it has received a complaint, or has become aware of a significant adverse effect on competition.

    Let me start with government Amendment 1. As noble Lords will recall, the Competition and Markets Authority issued a letter on the Bill on 29 June which contained nine recommendations. Our response to these recommendations was issued on 10 October and is now on the GOV.UK website. One of these recommendations was for the CMA to be listed as a statutory consultee in relation to consulting on franchising proposals. The Government accepted this recommendation and tabled Amendment 1.

    The CMA is already a statutory consultee in relation to advanced quality partnership, advanced ticketing and enhanced partnership schemes. I take the view that it would be helpful for franchising authorities to engage with the CMA as they develop their proposals. This should help ensure that the authority developing its franchising proposals is made aware of any potential effects on competition, and the benefits or impacts this could have for bus operators and local people.

    I now turn to Amendments 4 and 5 in the name of the noble Lord, Lord Bradshaw. As I mentioned on Report, the CMA will not have any specific powers to block bus franchising schemes. However, it is important to remember that their role is to conduct market studies and investigations in markets where there may be competition and consumer problems, with the aim of improving the situation for passengers. We believe that any restriction of the powers available to the CMA would send the wrong message about its important role in protecting consumers. As such, I urge the noble Lord not to move his amendment.

    In addition, as the noble Lord may be aware, Schedule 10 to the Transport Act 2000, which the noble Lord seeks to amend, does not give the CMA the power to investigate franchising schemes. The schedule provides a competition framework in which partnership schemes should operate. As such, the noble Lord’s amendment does not appear in the relevant section of the Bill.

    I hope that this explanation and the assurances I have given—we have met in this regard as well—have persuaded the noble Lord, Lord Bradshaw. I know he recognises the important role that the CMA has to play, and that local authorities should look to work with it as proposals are developed to ensure local bus passengers get the best possible services. However, I do not feel that the amendments are necessary as the CMA is not being given any specific powers to block bus franchising schemes. I trust that has reassured the noble Lord to the extent that he is minded not to press his amendments. I beg to move.

  • I thank the noble Lord for what I regard as a minimal response to the inquiries I have made. The Competition and Markets Authority seeks to interfere in the proper conduct of business. Can the Minister reflect on the extent to which the authority is working in the public interest or whether it is in the interest of the people employed by the Competition and Markets Authority, to give themselves work? The Minister will be aware of the enormous ongoing inquiry into the Northern Rail franchise, and the effect on Arriva buses. A long time and a lot of expenditure—both public expenditure and that of Arriva—has resulted in a settlement that could probably have been achieved without anything being done by the Competition and Markets Authority. There is very little overlap between the services of Arriva as a bus operator and the services of Arriva as a train operator—and, of course, it won the franchise for a train operation and went ahead without realising that this would be raised. It has been raised and it has cost a lot of money, and a Government who are so anxious to save unnecessary public expenditure should seriously consider what these people are doing.

    The future of bus franchises has been covered by what the Minister has said, but when future rail franchises are let—a number are coming along—it would be just as well if the Competition and Markets Authority was, in this case, put into a position where it was a statutory consultee. It should also be told, however, once the franchise had been let and the franchisee is trying to establish services—which takes a long time, because you need rolling stock or buses to run a new franchise—that it should keep out of the way for a time, unless there is a significant public complaint. I am not aware, although I may not be very well informed about it, of a groundswell of opinion in the north of England about the issues that the CMA has raised.

  • Could the noble Lord assist me? He was forthright in his condemnation of the CMA, although he appears to believe that it has a part to play in rail franchising. I do not want to take noble Lords down that road because I would be out of order in doing so. However, it is a slight contradiction in terms, though no more so than in my own party, which is in favour of franchising for buses but against it for trains. I think that is the right way around, but I am not quite sure; perhaps my noble friends could advise me on that.

    To stick strictly to the CMA and the Bill, the CMA made nine eminently sensible recommendations, including the one that, somewhat belatedly, the Minister has now decided to accept. Given the noble Lord’s condemnation of the CMA, which of those recommendations does he feel are unnecessary with regard to the Bill?

  • I am perfectly satisfied with what the Minister has said in so far as it concerns bus franchising, but the bus and rail industries are very much linked together. I am trying to bring to his attention the fact that the work of the CMA in the latest case has probably been fruitless. It has been very expensive and, in future, rail franchising should be subject to the same discipline now proposed for bus services. With that, should like to withdraw the amendment.

  • It may be for the convenience of noble Lords if I remind the House that we are debating government Amendment 1, and the noble Lord, Lord Bradshaw, has been speaking to Amendments 4 and 5, which are grouped with that amendment.

  • My Lords, I thank the Minister for introducing his amendment, which closely mirrors one that I brought forward in Committee what seems like quite a long time ago. The success of the Bill will to a very large extent be determined by the attitude of the Competition and Markets Authority. In its advice to government, it has made it clear that it sees this form of franchising very much as an inferior form of competition compared to on-road competition. That is an attitude I find extraordinary. After all, we do not have on-road bin collection competition, with companies whizzing around fighting over who collects the bins. We accept that, under those circumstances, it is a perfectly rational thing to do—and there is absolutely a case to be made with buses. The problem is with the insistence that it must be the only way, which is likely to prove a hurdle that most local authorities will simply not be able to reach. I am very keen that this amendment should go through, not because it can do anything to halt the CMA but because if it is cited at an early stage and then has a problem, at least it will become clear to the franchising authority very quickly. That authority would not spend a huge amount of money on developing a scheme that is likely to fall foul of the CMA later.

  • My Lords, Amendment 1, as moved by the Minister, adds the Competition and Markets Authority as a statutory consultee when a combined authority has decided, after receiving the relevant reports, to proceed with a franchising scheme. The issue regarding the Competition and Markets Authority was first raised by the noble Lord, Lord Bradshaw, in Committee and we should all be grateful to him for his persistence in this matter. He has identified an important issue and concern. It would be most regrettable if, after passing the Bill into law, the bar had been set so high that no authority could ever meet the requirements and be able to establish a franchising scheme to improve services for their residents.

    To be clear, in nominating the Competition and Markets Authority as a statutory consultee, the Minister is saying to us that he does not see a situation where a plan for a franchising scheme could run into difficulties with the CMA if it has been worked with and been made aware of the potential effects on competition, and if its concerns have been taken account of. If that is the case, I am very pleased. However, can the Minister confirm in his response one of two things? Is that the view of the Department for Transport alone, or has it spoken to the CMA so that when informing the House of the Government’s position in this respect, he does so with the knowledge and agreement of the CMA? I thank the noble Lord, Lord Bradshaw, for bringing his amendments forward. As I said earlier, he has identified a real problem and his intervention may well avoid all sorts of problems as authorities seek to make use of these powers. I am sure we are all very grateful to him.

  • My Lords, I acknowledge the noble Lords who have contributed to where we are on this issue. Let me briefly address the issue by assuring noble Lords that when it comes to the passage of the Bill, we will continue to discuss options with bus operators, local authorities and the CMA. We particularly intend in this respect to consult specifically on our proposals for secondary legislation later this year. I am sure that any issues which are still pending or need to be clarified will come up in those discussions. However, the Government have been clear that we have taken it on board that engaging with the CMA at an early stage should assist those local authorities which take forward franchising, to ensure that issues can be addressed at an early stage.

  • Is the Minister saying that he and his department have talked to the CMA and that it is clear on that as well?

  • As I mentioned in my opening remarks, the CMA wrote to us and we responded accordingly to the recommendations that it made.

  • Amendment 1 agreed.

    Amendment 2

    Moved by

  • 2: Before Clause 22, insert the following new Clause—

    “Bus safety

    (1) An operator of a local service may not participate in any scheme, and an authority or authorities may not approve the participation of an operator as party of any scheme, unless the operator has given a written undertaking to the applicable authority or authorities that—(a) it has subscribed to a confidential safety reporting system that—(i) is suitable for bus operations staff;(ii) can demonstrate it is adequately experienced, resourced and staffed; and(iii) is entirely independent of any bus operators’ control,(b) it has used its best endeavours to ensure that all staff of the operator have been made aware of their right to use this confidential safety reporting system to enable bus operators’ staff to report incidents, unsafe acts, concerns and safety-related issues that they do not feel able to report through normal channels, or where normal reporting channels have not resolved the issue,(c) it will collect and monitor bus casualty data in a manner to be prescribed by the applicable authority or authorities from time to time, and(d) it will make its bus casualty data available to the applicable authority or authorities by way of a report on at least a monthly basis.(2) The authority or authorities must publish on their own website, every quarter, the bus casualty data that they have collected from operators.”

  • My Lords, I was very pleased with the support, sympathetic noises and comments that I had from other Peers when I first tabled this bus safety amendment and I have brought it back at Third Reading, with thanks to the Minister for not disallowing it. The amendment was drafted with the assistance of the Campaign for Better Transport’s “Save our Buses” campaign and benefited from written evidence submitted to the Transport Committee by the Parliamentary Advisory Council for Transport Safety, or PACTS. It was largely rewritten by the campaigner Tom Kearney, who has been the victim of a bus crash.

    The amendment seeks to do two things. First, it would help with confidential reporting, meaning that bus drivers would have access to a system that has long been happening on the railway and within the air industry. This is called the confidential incident reporting and analysis system, or CIRAS, and it means that bus drivers could report anything about faults or problems that they perceived with their vehicles or their routes.

    Secondly, it would allow for the quarterly publication of bus casualty data. When we were on the London Assembly, the Greens persuaded Boris Johnson, when he was London Mayor, to improve operational safety performance monitoring and reporting of TfL’s bus routes by adopting this measure. As a result, confidential safety reporting has been in place in London since 4 January this year. TfL has also made its bus operators’ subscription to CIRAS a precondition for running a bus service contract. These safety practices have made London’s bus system, which is about 25% of the UK’s entire bus fleet, substantially more safety conscious. London also has access to casualty data reporting, which has been in operation for nearly three years, since January 2014. TfL publishes bus safety data every quarter, clearly identifying the bus operator involved, incident location, type of injury, sex and age of the injured party, general cause, mode of transport involved, and borough and month in which it happened.

    The importance of confidential safety reporting is shown by the statistics now published by Transport for London. The latest statistics suggest that every TfL bus driver has a 0.2% chance per annum of killing someone; a 63% per annum chance of injuring someone; and a 0.016% chance of sending someone to hospital every single day. Given that safety incidents impose costs and cause delays, one would think that bus operators would be motivated to encourage such reporting by their employees. Surprisingly, even though London’s bus operators have franchises across the UK, only their London franchises are subscribed to CIRAS. While I support the idea of localism, it seems strange to me that London’s bus franchises should have a manifestly better operational safety reporting system than any other locality in the United Kingdom.

    In the rail industry, 2015 marked the eighth year in a row with zero rail crash fatalities. This year of course we have had the Croydon tram fatalities. I do not know whether the Croydon tram was operating under CIRAS conditions; I would be interested to know whether it was, if the Minister knows and can tell us. We have acted for many years to prevent rail crashes and deaths, so I fail to understand why we so readily accept crashes, injuries, incidents and deaths on our roads.

    As a result of the Minister’s previous comments, I have redrafted this amendment so that the section on confidential safety incident reporting conforms to existing rail standards and CIRAS’s name no longer appears, which would mean that it is not quite so time-limited as it might have been before. I hope that these tweaks will remove the barriers to the Government’s acceptance of this incredibly common-sense proposal. I beg to move.

  • My Lords, I cannot recall what position I took on the noble Baroness’s amendment in Committee, but I am not sure that it is one that we should accept. The reason is simply that air crashes and rail crashes are extremely complex events and it is not always clear what has caused an accident. The accidents that the noble Baroness refers to are road traffic accidents where, generally speaking, it is obvious what caused the accident. This is not an amendment that I would support.

  • My Lords, I do support this amendment; my noble friend has set out the need for this confidential safety reporting very clearly. I do not accept the comment from the noble Earl, Lord Attlee, that rail and air accidents are complex and therefore need confidential safety reporting but that road is quite simple—you have an accident and it is quite clear who caused it.

    There is also a marine confidential reporting system, which noble Lords may know about. You could argue that you hit something or you hit another ship and it is clear what the cause was, but I think that it is a slightly simplistic argument. We are talking about a confidential reporting system that may include something that is wrong with the equipment—whether ship or aeroplane—that a person is operating. There may be something he or she feels that their employer should have done something about and has not. One likes to think that, with confidential reporting, that could be put right without employees’ putting their jobs at risk. That does not always happen but in other sectors such a provision is an incentive to report issues. I think the systems are exactly the same as between air, road, rail and marine. As my noble friend said, it is interesting to note that confidential reporting has worked well with the railways. Indeed, she has changed the amendment to reflect the situation that operates on the railways.

    A few years ago, both the noble Lord, Lord Bradshaw, and I tried to get the Office of Rail and Road, as it is now called, to take responsibility for road safety on the trunk road network and the motorways in the same way as it does for the rail network. We argued that the conditions on the respective networks were much the same. That office had the expertise not just to say, when investigating an accident, that things could be done better, but to go into all the information, statistics and safety rules and bring in one consistent policy, at least for road and rail. I argue that air and marine are slightly different areas but road and rail are very similar land surface forms of transport.

    I consider that the confidential reporting mechanism gives comfort to drivers and other staff employed on buses. They are mostly operated by one person, the driver, so we are talking about just drivers. I think that it would also give comfort to passengers. It is evident that most London bus services are extremely good. However, I think that other bus operators sometimes put their drivers under pressure to bend the rules, whether on drivers’ hours, speeding or not looking after their passengers properly. If confidential reporting were in place, people would have the ability to make complaints if they wished to do so. It would also give operators an incentive not to abuse the system and to improve the quality of journeys generally, which is what this whole Bill is about.

    My noble friend said that bus operators in London have introduced confidential reporting. That is wonderful but there is no reason why London bus passengers or employees should be treated any differently from those in the rest of the country. Another reason for introducing this Bill is to bring the quality of services in other parts of the country in line with that of the service in London.

    This is a good amendment which we have discussed several times at various stages. Frankly, if the Minister rejects it now, I would have to ask him whether the Government consider that bus accidents, bad driving by bus drivers or bad quality of bus services—buses are a form of public transport, as are rail, ferries or air transport—and the necessity of having good-quality, safe bus services are less important for buses than for other forms of transport, perhaps because not so many Members of your Lordships’ House travel by bus as by other forms of transport. I hope that is not the case. However, if the amendment were rejected, that would be my perception. As I say, this is a good amendment and I support it.

  • My Lords, having heard the exchanges on both sides, I wish to raise a couple of points with the noble Baroness who moved this amendment. The noble Earl, Lord Attlee, made a relevant point when he talked about the difference between accidents involving buses and those involving trains and aeroplanes. The Croydon tragedy has just been mentioned. All I will say about that is that three separate inquiries into that tragedy are taking place at present. If a similar number of passengers had been killed by a bus overturning on a bend, there would not be three separate inquiries but an inquest into the deaths. That might go some way to underline my noble friend Lord Berkeley’s point but it also supports the point made by the noble Earl, Lord Attlee, that we have different procedures. Just because we have different procedures does not mean that we are any less concerned about bus safety.

  • The noble Baroness’s proposed new subsection (1)(a)(iii) states that the confidential safety reporting scheme has to be,

    “entirely independent of any bus operators’ control”.

    There are hundreds of smaller bus operators in this country. Again, I give way to nobody in my concern for safety with regard to bus operations. I reassure my noble friend Lord Berkeley that I travel on buses from time to time. Indeed, during a previous debate on the Bill I was unwise enough to criticise the sounds and display on a particular bus route and pointed out that hearing the audio at every bus stop was considerably annoying if you are on the bus for 40 minutes. For that I was quite roundly denounced by one or two noble Lords who are in the Chamber at present and, while I did not exactly receive hate mail, people on Facebook and its ilk—I am not a participant—certainly expressed some strong views about my comments. Indeed, it was suggested that I should be barred from LRT henceforth because I had had the temerity to say that I found the noise somewhat obtrusive. I therefore hope that I can reassure my noble friend that I travel on buses from time to time.

    I point out to the noble Baroness, Lady Jones, that the amendment would place a considerable extra burden on private operators, particularly smaller ones. Of course, most of the companies that operate in London are major bus companies with garages in various other parts of the country, while that is not true for smaller operators. Has the noble Baroness thought about the additional burden that would be placed on such operators, and would she consider exempting operators with a significantly smaller number of vehicles from the amendment?

  • My Lords, the noble Baroness who proposed the amendment has the gift of coming up with interesting and appealing ideas, and this is one of them. I think that obviously we are all sympathetic to the issue of safety on buses; some instances recently, even in London, have been a matter of concern. I think also of the cycling situation in London, which is a problem. However, on this occasion I have to agree—they might be surprised to hear this—with the noble Lord, Lord Snape, and my noble friend Lord Attlee. There are problems in this area which are not solved by this rather heavy-handed approach, and there is a difference between the sort of situation you find yourself in with buses on the one hand and with rail on the other. Indeed, the noble Lord, Lord Snape, made the point that his own party is in favour of franchising when it comes to buses but against it when it comes to railways, so there are clearly differences in the way we approach these two important industries.

    As someone who takes an interest in the Bill, I am also concerned that we get it off the ground. People who have followed the bus industry know that previous attempts to get franchising going in the rest of the country failed because of the complexity of the legislation. For example, Newcastle upon Tyne made a big effort to get franchising going but failed after many years of trying because of the complexity of the legislative procedures. I do not want this admirable Bill, which I fully support, to fall foul of the same problems. Let us please keep it as simple as possible. We have made amendments in this House which on the whole have been wise, and which I hope the Government will keep, as they have not been adverse to the spirit of the Bill. This may be music to the ears of my colleagues on the Front Bench: I hope that they do not mess around too much with it in another place. We should keep it where it is. It is a very good Bill. As my wife said the other day, I am a bit of a bus junkie. People are asked whether they travel on buses; I travel on buses all the time in London because they are so good. I want something similar to be available to residents in other parts of the country and I trust that this Bill will achieve that. I strongly support it and I do not want any further amendments to be made to it.

  • My Lords, the recent tram tragedy should make us all think again about safety in general, and that should apply not just to franchised services but to partnerships and any kind of regular service run with some element of public money and with public support. I very much hope that the Minister will accept the principle of the amendment and acknowledge that there is an issue to be considered. I want to make it clear that I believe the noble Earl, Lord Attlee, is incorrect in trying to distinguish between different types of accidents—the causes of bus accidents can be just as complex. Speculation since the tram accident has shown us all that perhaps there was a long-term issue that could have been addressed by having a system akin to the one suggested here.

  • My Lords, would it be better not to agree this amendment because of the reasons adduced by my noble friend? At the same time, taking up what the noble Baroness said, there is a growing understanding in society that we have to provide people with the opportunity to report things that worry them in a way that does not endanger their position as, for example, drivers. I do not think that this issue is about buses; it is about the society in which we live. We need to enable people in a complex society to issue warnings so as to increase levels of safety. Therefore, I hope that my noble friend will refuse to accept the amendment, which I think would be otiose and rather heavy-handed in this excellent Bill.

    I also hope that he will take on board the principle that we should offer people the opportunity to issue warnings whenever we can. If we do not do that, all sorts of things that could be avoided are not avoided. It is becoming less easy to draw a distinction between buses and trains. What do we do with guided bus routes, for example? Are the vehicles classified as trains or buses? We have talked about trams, but the noble Baroness could not tell us whether the same rules operate on trams as operate on buses. We have to recognise that this issue is more complicated than we think, but it is most important that we give people the opportunity to warn in a way that does not imperil their jobs.

  • My Lords, I support the approach taken by my noble friend Lady Randerson and I echo the points that have just been made by the noble Lord, Lord Deben. Right across society we are gaining a better understanding that the first indication that something is wrong in an organisation usually comes from the people who work in it. The importance of a whistleblowing policy is well understood. Surely the purpose of this proposal is not necessarily to look back following an accident but to prevent accidents happening in the first place.

  • My Lords, the amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb, would insert a new clause into the Bill. We discussed this on Report and I am very pleased that it is back here today to be considered further at Third Reading.

    As we have heard, the amendment is about safety. A scheme similar to what is proposed here operates in London and in the rail and aviation industries. Schemes for the confidential reporting of incidents are already up and running, contributing to the safety of everyone in those industries and the passengers who make use of those transport services. Therefore, in principle the noble Lord, Lord Ahmad of Wimbledon, and his department should have no reason not to accept the amendment.

    We have heard about the number of fatalities and serious injuries that have taken place in the past year in the bus industry, and anything that contributes to a reduction in those figures should be welcomed by everyone. Publishing the information and identifying bad or sloppy practices, or something that is an unintended consequence, means issues can be highlighted and action taken to deal with them, if we have the data necessary to identify the problem.

    It is also a well-known fact that just having a system of confidential reporting can do much to improve the safety culture. Amendment 2 is a very positive amendment and I congratulate the noble Baroness for bringing it back again today. I very much hope that she will get a positive response from the noble Lord, Lord Ahmad of Wimbledon, as she is seeking to bring forward a sensible and proportionate measure that is already operating in other transport industries and in the bus industry in London—and all the large bus operators that operate outside the capital also operate in the capital.

    Doing everything we can to avoid death and serious injury in an industry that transports millions of people around every day, often on short local journeys, is something we should all want to support. The costs are not great for operators and, as we have seen in London, the system clearly can operate without any great burden to the industry.

    In conclusion, the amendment as worded may not be what is needed, but, as the noble Baroness, Lady Randerson, said, the Government can accept the principle and work with noble Lords in this House and with campaigners to get it right. As the noble Lord, Lord Deben, said, we need to enable people to have the ability and opportunity to warn of potential problems. I think that that is very important and I hope the noble Lord, Lord Ahmad, will move forward on that basis.

  • I first thank all noble Lords who have participated in this important debate, and in particular the noble Baroness, Lady Jones, for proposing an amendment that would prevent bus operators participating in any scheme unless they give a written undertaking to the relevant authority that they will subscribe to a confidential safety reporting system. Operators will also need to provide an undertaking that they will collect and monitor bus casualty data and then provide the relevant authorities with a monthly report.

    Several noble Lords have made points about safety. Let me make it clear again that road safety is a matter of national importance—we are all agreed on that. The DVSA in particular plays an important role, with traffic commissioners, in seeking to ensure that drivers and vehicles are both licensed and safe. The department collects and publishes data on reported road accidents, which provide details of the type of vehicle involved and the consequent casualties. I am pleased, but far from complacent, that we saw a fall in the number of accidents involving buses and coaches in 2015 from the previous year. However, we must ensure that we continue to monitor this important area.

    Let me turn to the amendment more specifically. As I said on Report, I agree with the sentiment behind this amendment; several noble Lords have also said that this afternoon. An efficient reporting system captures health, safety and security concerns raised by employees, which are then recorded, and this is the first step towards resolving any issues raised—indeed, it addresses the concerns so eloquently put by my noble friend Lord Deben.

    I am grateful to the noble Baroness for acknowledging some of the issues raised at Report and for omitting the specific reference to CIRAS. The Government believe that it would not be appropriate to include such a reference in primary legislation. I also thank the noble Baroness for the very productive meeting we had on this issue, together with Mr Kearney. That in itself served as a very informative meeting for the Government. That said, I am conscious that the proposed amendment has come quite late in the passage of the Bill through this House. As several noble Lords acknowledged, the issue was first raised only on Report. The Government, therefore, do not have sufficient time to consider the issue before the Bill leaves your Lordships’ House. I therefore cannot accept this amendment today.

    That said, and for the reasons that I have explained to the noble Baroness already, we are keen to explore further the issues raised by the amendment. In the spirit of the sentiments expressed by the noble Baronesses, Lady Randerson and Lady Scott, the noble Lord, Lord Kennedy, and my noble friend Lord Deben, we wish to look at this amendment carefully, and it would be appropriate to do so in the other place. This approach would allow us to consider the objectives of the proposed amendment carefully and to explore what the best solution may be to resolve any specific issues.

    Let me assure the House that I have listened very carefully to the debate this afternoon and understand the importance of making sure that bus travel is safe for all—we all share that view. I will not be able to accept the amendment today but I anticipate working with the noble Baroness on this matter as the Bill progresses in the other place. I can also assure her that I have already asked my honourable friend Andrew Jones, who is the Bill Minister, to continue the constructive discussions we have had thus far.

    With the assurances and the explanation I have provided, I hope that the noble Baroness will be minded to withdraw her amendment.

  • My Lords, I thank the Minister for his generous reply. Obviously he did not go as far as I would have liked and I hope the House will allow me a little leeway in demolishing—or commenting on—some of the comments that have been made during this debate.

    Earl Attlee: complexity. I have never driven a train or a bus but, as a train is taken along tracks with no steering wheel, it could be argued that a bus is more complex to drive and that there are more complex issues on roads. So that is quite a feeble argument.

    Lord Snape, I did not quite follow what you were saying but I can assure you that, from an extra burden point of view—if you are talking about a financial burden, for example—if a company has a turnover of up to £1 million, it would cost it £300 to subscribe to the scheme. If its turnover is from £1 billion to £2 billion, it is £12,000. That is not onerous. You might argue that the data collection is onerous—but I would say, “No data, no measurement”. We cannot judge whether a company is safe if we do not have the data to look at. So this is money well spent.

    Lord Horam, you talked about my interesting ideas—I think that was a criticism rather than a compliment—and you also called this heavy-handed. I can only say to you that this is tried and tested in London and it works for the majority of bus companies. You talked about London buses being so good, but they are so good partly because they subscribe to this scheme and bus drivers are allowed to comment on their vehicles and the problems they face. I thank the Peers who commented in a positive way and I shall come to the Minister’s comment in a moment.

  • My Lords, the noble Baroness has done a fabulous job in moving her amendment and has had success in her reply from the Minister—but will she undertake to study the Companion on the use of the word “you”?

  • I do apologise. I have no idea about that. Perhaps you would like to give me a seminar afterwards.

    The noble Earl, Lord Attlee, questioned whether or not he was consistent between my bringing the amendment last time and now, I can assure the noble Lord that he was completely consistent. He did not like it then and he does not like it now.

    I thank the Minister for the productive meeting and it was good to hear that he was sympathetic to the issues. This is a relatively minor change. Other people have called it heavy-handed but it is a minor change. It saves lives. I cannot think of a higher, nobler cause than saving lives—especially those of the people we purport to govern. We are saving lives and preventing injuries and devastation to families—and the numbers we are talking about are not inconsequential. This is a relatively light touch for something that has such heavy consequences. I am of course disappointed that the Government have not snapped up the amendment but I look forward to it being picked up later.

    Its impact on society and on the taxpayer is much heavier than we realise. Every crash has a cost—whether it is in delays to business, to the service or to commuters—that we do not assess. When we talk about the cost to industry, we should also think about the cost to the life of the towns, cities and roads where it happens.

  • I appreciate the noble Baroness giving way. Does she agree that one of the key duties on any board of directors is the management of health and safety? It is a legal requirement, so it is inconceivable that bus operating companies do not already collect this information. What we are talking about here are two things. The first is the matter of transparency in reporting and the second is the further step that the noble Baroness wants to take in terms of it being a barrier to granting a franchise. But the point about collecting data is that companies will be doing that already because they are legally obliged to do so.

  • I thank the noble Baroness, Lady Scott, for that comment. I actually do not know the answer to that and I will find out.

    I hope that the economic impact of deaths and injuries will be taken into account by the Government when they assess the importance of this amendment. Having said all that and feeling only slightly better—I mean bitter—I beg leave to withdraw the amendment.

  • Amendment 2 withdrawn.

    Clause 24: Extent

    Amendment 3

    Moved by

  • 3: Clause 24, page 79, line 19, at end insert—

    “( ) Sections 22 to 26 extend to England and Wales and Scotland.”

  • My Lords, Clause 17 was inserted on Report and introduces the accessible information requirement. Certain provisions in the clause extend to Scotland whereas the rest of the Bill extends to England and Wales. A further amendment is required to extend the Bill’s general provisions to Scotland; namely, the power to make consequential provision, the power to make transitional, transitory or saving provision, extent, commencement and the Short Title. These general provisions already extend to England and Wales, and this is very much a technical amendment. I beg to move.

  • My Lords, I thank the Minister for suggesting in a letter today that I should make a momentary intervention on the accessibility of bus services. Noble Lords will remember that I moved an amendment on Report to make bus companies, as a condition of their licence, produce and publish policies to assist disabled people in using their services. The intention of the amendment was to bring buses completely into line with trains. I also offered the Minister an alternative if he rejected my amendment, which was to follow his own model on AVs and introduce a regulation-making power under the Equality Act to require bus companies to make accessibility policies, again enforceable as a condition of their licence. The Minister kindly said that he would reflect on my offer, and true to his word, a week later we had an extremely helpful and constructive meeting to discuss my proposal in more depth. He said that he would revert to me in around a week.

    Unfortunately, he was not able to do so until this morning when I received a letter telling me that while he cannot make a firm commitment today, the dialogue will continue. The Minister emphasises in his letter the need for strong guidance as a back-stop that should be developed with the Disabled Persons Transport Advisory Committee to make bus services more accessible for disabled people. Of course I welcome that, although the Minister knows my views on the deep limitations of guidance incredibly well by now.

    I want to express my appreciation to the Minister for his openness and willingness to discuss this issue in depth—and I really mean that. Transport is a lifeline for disabled people as it underpins their inclusion in society. An amendment is not on the table today, although I had hoped it would be, but I am grateful for the offer to work with Andrew Jones MP, the Bill Minister in the other place. I am happy to take up that offer and I thank the Minister for his collaborative approach, which reflects my preferred way of working. As I say, I will definitely take him up on his offer and I have already garnered support from MPs, organisations representing disabled people and disabled people themselves for taking this forward. I hope further discussions in the other place will result in an amendment to enable disabled people to use buses with confidence and with the assistance they need to live independently. At the moment that is not the case, but I believe it can be.

  • My Lords, I take this opportunity to thank the Minister for his courtesy in giving us his time in meetings, and I thank his officials for their work. We are grateful for the care with which he has considered our amendments and has responded to them, even when he was rejecting them.

    We on these Benches support the principles behind the Bill and we are pleased that the Government are attempting to improve bus services. For some 30 years, since the Thatcher Government introduced deregulation, bus services outside London have been a story of decline. In contrast, buses have thrived in London within a much more regulated system. Although franchising may not be the whole answer—indeed, may not be the answer used in much of the country—we believe that partnerships have a much more active role to play for local authorities as well as for bus companies. They mark an important way forward.

    Good bus services are an important part of a thriving economy. They are the most frequently used form of public transport and are essential to the mobility of older people, young people and, in particular, those who are less well-off. They are essential to the sustainability of rural communities and for a healthy environment. Air quality is a major issue of public concern, as the Government are painfully aware at this time, so frequent, reliable and reasonably priced bus services are key to discouraging car use. We hope the Bill will improve bus services and I hope our contributions on the issues of emissions, disabled access, youth fares and so on have helped to focus the Minister’s mind and those of his colleagues on ways the Bill needed to be improved and on ways in which a more ambitious approach might future-proof the Bill and make it more robust for the years ahead. I hope our work here in this House has done enough to make it strong enough to succeed in its aims.

  • My Lords, as is customary at this stage in the passage of a Bill, I shall be brief. Obviously the amendment moved by my noble friend the Minister is a good one. As he has said on several occasions, the overall aim of the Bill is to make bus services even better, and I agree with everything just said by the noble Baroness, Lady Randerson, about the importance of bus services. There is much to support in the Bill, not least because it will pave the way for even greater partnership working between bus operators and local authorities. I was especially delighted to see the Government amend the Bill to ensure that passengers will have greater access to bus service information. This will make travelling on buses easier and perhaps a less daunting experience not only for those with disabilities, but for everyone.

    However, not all the changes we have made were, I believe, so welcome. Giving any and all local authorities access to franchising powers is, in my view, a mistake. It will just serve to introduce uncertainty into the bus market and bus companies will have no incentive to invest. There will be no incentive to buy new vehicles, to keep passengers happy or to react to their needs, which runs counter to the overall aim of the Bill. This House prides itself on being a revising Chamber and it has certainly revised the Bill, so let us see what becomes of it when it reaches the other place. I hope that the next time we see it, the Bill will do what it says on the tin and enable local bus services to flourish and deliver for passengers.

  • My Lords, I briefly make a contribution as the Bill comes to the end of its passage in this place. I know the Minister is aware of the importance of the Bill to Greater Manchester. The option to franchise bus services is something that leaders of all political organisations across Greater Manchester have requested as part of the 2014 devolution agreement. It is integral to that agreement’s success.

    Bus franchising has the potential to truly transform transport across the city region, allowing Greater Manchester to develop an integrated transport network. I am therefore delighted that we are moving a step forward with the Bill. However, as the Minister is aware, the Greater Manchester mayoral elections in May 2017 are less than six months away. A number of clauses include provisions that allow the Secretary of State to make secondary legislation and guidance.

    I would therefore like to make two brief requests to the Minister. First, it will be essential that the regulations and guidance issued are robust and clear in their intent and content so as to limit any delays in implementation. Secondly, the guidance and regulations must be available as soon as practicably possible so that the incoming mayor can make informed decisions on the options available to them. I would be grateful for the Minister’s response on those points.

    Transport devolution across Greater Manchester has the potential to bring significant benefits for passengers, industry, residents and visitors across the conurbation. Reform of bus services in Greater Manchester is crucial if we are to unlock these benefits and create the excellent integrated transport network the area deserves.

  • My Lords, I endorse some of the things that my noble friend said. I too give a qualified welcome to the Bill and to the amendments, in particular those aspects of the Bill that would genuinely improve services for passengers and those clauses that encourage the development of partnership working between operators and local government. Those arrangements have proved to be successful in many parts of the country.

    I have misgivings about franchising that I have expressed ad nauseam. The Minister has said time after time that there is no extra money available to local authorities that wish to go down the road of franchising. The Liberal party spokesperson and my Front Bench made the point that franchising has worked extremely well in London. Of course it has. The one aspect of franchising in London that people do not talk about, and which has rarely been mentioned in the Chamber, is money. We have thrown £1 billion at franchising in London. That is the nearest estimate I can come up with. My objection to franchising would be considerably reduced if the Minister stood up and said that he has £1 billion for Manchester—that might please my noble friend Lord Bradley—£1 billion for Birmingham, £1 billion for Tyneside and £1 billion for the other conurbations in this country. We know full well that that will not happen.

    At a time when local government’s finances have been considerably cut back time after time, to pursue franchising is a snare and a delusion. To my knowledge this is the third attempt since the 1985 Act to bring some degree of franchising back to local bus services outside London. In my view, it will be as unsuccessful as the previous two for the reasons I have outlined.

    It is very rare when we debate bus services that we hear the voice of passengers. We have heard from the Local Government Association. I do not object to democratic organisations seeking more power—that is what democratic organisations do—but I object to the view that these powers can somehow be granted to Manchester, Birmingham and other parts of our great nation without any money to fulfil them. In that way inevitably lies cynicism and disappointment.

    A report on bus services in the West Midlands was published as recently as last week by Passenger Focus—an eminently respectable group that I know commands the respect and affection of both sides of your Lordships’ Chamber. Some 82% of passengers using bus services in the West Midlands expressed satisfaction with the services provided. When that 82% was asked whether they had any problems, virtually every single one of them said, “Yes, there is a problem. It’s called congestion. We hate being caught in congestion”. Local authorities have responsibility for alleviating congestion. They do not have the money, of course, as I am the first to acknowledge, but by and large many of them do not have the will to do something about congestion either. If buses ran on time in our major conurbations we would not be having this debate on franchising.

    My noble friends on the Opposition Front Bench will talk about the London experience. London is a unique city. It has hundreds of thousands of commuters entering and leaving every day and millions of tourists in the course of a year. With all due respect to Manchester, Birmingham and Tyneside, we do not have millions of tourists; we have thousands of commuters and perhaps thousands of tourists. That is why London was exempted from deregulation in 1985—read Hansard in both Houses of Parliament. That is why franchising was introduced in London rather than in the rest of the country.

    Having sat through virtually every debate on the Bill I am in danger of repeating myself, but I do not believe the provisions for franchising will ever be enacted. I can see those provisions being filleted in the other place when the Bill gets there. I have one last sad word to my Front Bench: we seem to pretend that the passage of the 1985 Act was year zero as far as buses were concerned. The decline of bus passengers in our major conurbations started in the 1950s with the spread of the private car. In the 1950s there were 5 million cars on our roads; there are more than 35 million now. It is not surprising that people, having acquired a private car, decide to use it rather than the bus. To pretend this decline started in 1985 with the passage of the Act is a delusion. It did not; it started a long time before that.

    If we are to go forward sensibly as far as the provision of bus services is concerned, I believe—I hope I have not boasted, but I have reminded your Lordships that I have had some experience in the bus industry—that partnerships are the way forward. If the Bill leads to greater partnership I wish it a fair wind, but I very much doubt it will return from the other place in the same state as it leaves us.

  • My Lords, I could not let the opportunity of a bus Bill prevent me stating that, in my opinion and that of many people I know who drive in central London, we are constantly impressed by the way that bus drivers are driving in a thoughtful manner. They are difficult, large buses, but they do not act in a way that offends other traffic. I would like this short tribute to be made to them and put on the record.

  • My Lords, as we are on the last amendment at Third Reading, I want to say that I genuinely believe that this is a good Bill. It leaves this House in a better shape than when it arrived. We wish it well as it goes through the Commons. I thank in particular the noble Lord, Lord Ahmad of Wimbledon. He has been courteous, engaging, responsive and willing to listen. I know that I and all other noble Lords are grateful to him for that. I also thank the Bill team, who have been very kind to us, and helpful and supportive. We appreciate very much the work they have done all round the House.

    We have made many positive changes to the Bill. I am glad that we said goodbye to Clause 21. I am pleased we have extended further franchising powers to non-mayoral authorities. I am pleased with the additions on audio-visual and environmental protections. I am well aware that the Bill will go to the other place and that one or two issues may come back to us at some point in the new year. We will certainly then want to state our case again and try to persuade the other place, if they are not persuaded already, of the soundness of our proposals.

    I thank all noble Lords who have taken part in the debate, those I have agreed with and those I have not agreed with. There have been very positive debates here during the whole course of the Bill. We have generally done a very good job.

    I thank in particular my noble friend Lady Jones of Whitchurch. I knew her for many years before either of us was in this House and we have always worked very well together. I also pay tribute to Hannah Lazell, who works in the opposition office. As my noble friend Lord Watson said in the debate on the previous Bill, we have only a small number of staff and Hannah has worked particularly hard for us throughout the Bill.

    This is a good Bill; we have improved it; we wish it well. If it comes back to us in an amended form, I am sure that we will defend our position at that point.

  • My Lords, I thank all noble Lords for their contributions. Although the amendment is somewhat technical, it has nevertheless served as a pretext for noble Lords to acknowledge the work that has been done in your Lordships’ House on this important Bill. I acknowledge the tribute paid by my noble friend Lady Oppenheim-Barnes to bus drivers; I am sure that we all echo that. We should perhaps pause for a moment to reflect on the fact that while, unfortunately, a minority receive attention, the majority of bus drivers, as my noble friend so eloquently put it, serve their cause, fulfil their duties and demonstrate the courtesy required of them in ensuring that people reach their destination efficiently, safely and on time. I align myself totally with the remarks of my noble friend.

    The noble Lord, Lord Bradley, has raised the issue relating to Manchester on repeated occasions. I assure him, as I have done before, that we are working closely with local authorities, including Transport for Greater Manchester, to achieve the objectives that he has outlined.

    We have reached that time in the Bill when, in acknowledging the comments of other noble Lords, I too wish to thank those Members of your Lordships’ House who have contributed to debates. We have sometimes agreed and sometimes disagreed, and sometimes agreed to disagree, but those debates have been lively and always conducted courteously. I am grateful for the time that all noble Lords have given, particularly in meeting me directly on a bilateral basis—it was greatly appreciated. In particular, I put on record my thanks to the noble Lord, Lord Kennedy, with whom I have worked on various issues in the Bill. He and his colleague, the noble Baroness, Lady Jones, have together led a very able charge from the Labour Benches in what have been robust but positive and proactive discussions. I am equally thankful to the noble Baroness, Lady Randerson, for her contributions and for the exchanges that we have had. I also thank my noble friend Lord Younger for his support during the passage of the Bill. It would be remiss of me not to mention my very able Bill team, who have had to endure many long hours of review and many requests from me as the Minister. I thank through the Bill manager all the officials at the DfT and in my private office for their support.

    On accessibility, I am grateful for the meetings that we have held with noble Lords, many conducted over the summer—sometimes, people perhaps forget that work continues and that was true in the case of this Bill. I am sure that we can all agree that the Bill is in a much stronger place for the inclusion of the accessible information requirement. I thank again the noble Baroness, Lady Campbell. I shall continue to reflect on her contributions and acknowledge the constructive way in which she has engaged with the department. I thank her, too, for the comments that she made today. I assure her that my honourable friend Andrew Jones has committed to continuing the productive discussions that we have had thus far. I am equally grateful for the contributions on accessibility of the noble Baroness, Lady Brinton, and the noble Lord, Lord Low, who regrettably are not in their places today. Their contributions have also been valuable. I am sure that there will be further discussions on this important issue as the Bill progresses through the House of Commons.

    It is fair to say that, for all of our shared belief that buses play a vital if at times underrated role in people’s lives, the passage of the Bill in this place has not been entirely easy. There has been much agreement on it, but there remain areas where this has not been the case. In particular, it remains important that the Bill reflects the Government’s original intent on who has access to franchising powers, for all of the reasons that I have explained—we have had robust debates in that regard. Nevertheless, throughout all stages of the Bill, there has been genuine co-operation and a willingness to work together across all Benches. I assure noble Lords that the Government will continue to work from a perspective of positive engagement, particularly on the issues that I have again highlighted today. We all seek to ensure that the Bill can fulfil its ultimate purpose of delivering improved services for bus passengers.

  • Amendment 3 agreed.

    Schedule 1: Further amendments: advanced quality partnership schemes

    Amendments 4 and 5 not moved.

    A privilege amendment was made.

    Bill passed and sent to the Commons.

    Wales Bill

    Committee (4th Day)

    Relevant Document: 5th Report from the Delegated Powers Committee

    Amendment 107C

    Moved by

  • 107C: After Clause 48, insert the following new Clause—

    “PART 2AWELSH TRIBUNALSThe Welsh tribunals

    (1) In this Part “Welsh tribunal” means—(a) the Agricultural Land Tribunal for Wales or Tribiwnlys Tir Amaethyddol Cymru;(b) the Mental Health Review Tribunal for Wales;(c) a rent assessment committee constituted in accordance with Schedule 10 to the Rent Act 1977 (including a leasehold valuation tribunal and a residential property tribunal);(d) the Special Educational Needs Tribunal for Wales or Tribiwnlys Anghenion Addysgol Arbennig Cymru;(e) a tribunal constituted in accordance with Schedule 3 to the Education Act 2005 (registration of inspectors in Wales: tribunals hearing appeals under section 27);(f) a tribunal drawn from the Adjudication Panel for Wales or Panel Dyfarnu Cymru;(g) the Welsh Language Tribunal or Tribiwnlys y Gymraeg.(2) Her Majesty may by Order in Council amend subsection (1)—(a) so as to remove or revise a paragraph,(b) so as to add or substitute a tribunal whose functions— (i) are exercisable only in relation to Wales, and(ii) do not relate to reserved matters (within the meaning of the Government of Wales Act 2006), or(c) so as to make amendments (to provisions of this Part or other enactments) that are consequential on an amendment within paragraph (a) or (b).(3) No recommendation is to be made to Her Majesty in Council to make an Order in Council under this section unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, the National Assembly for Wales.(4) Subsection (3) does not apply to a statutory instrument containing an Order in Council that only makes—(a) provision for the omission of a paragraph in subsection (1) where the tribunal concerned has ceased to exist,(b) provision for the variation of a paragraph in consequence of a change of name or transfer of functions, or(c) amendments within subsection (2)(c).Such an Order in Council is subject to annulment in pursuance of a resolution of the Assembly.”

  • My Lords, the government amendments in this group demonstrate the pragmatic and progressive approach that the Government are taking in this Bill to the interface between devolved matters and the wider justice system of England and Wales. The amendments are designed to do two things. First, they will create a statutory office of President of Welsh Tribunals to oversee the work of the devolved Welsh tribunals. Secondly, they will allow for the movement of judges between different Welsh tribunals and between reserved Her Majesty’s Courts & Tribunals Service tribunals in England and Wales and the devolved Welsh tribunals, to share expertise in a way that cannot happen under current legislation.

    These measures are the culmination of discussions with the Welsh Government, the Ministry of Justice and the senior judiciary. Although the clauses and accompanying schedules are fairly lengthy, reflecting some technical but necessary aspects of the provisions, the overriding purpose is simple: to improve the way in which the workload of the devolved Welsh tribunals is managed and to maximise flexibility in the deployment of judicial resources in the Welsh tribunals.

    I will deal with the creation of the statutory office of President of Welsh Tribunals before moving on to discuss the flexible deployment measures in more detail. As noble Lords may be aware, there are currently seven devolved tribunals which are the responsibility of the Welsh Government. The full list is set out in Amendment 107C and includes, among others, the Special Educational Needs Tribunal for Wales and the Welsh Language Tribunal.

    Each tribunal currently has its own chairperson, but Mr Justice Wyn Williams has undertaken an informal, presidential-style role in respect of the relevant tribunals, acting as a central point of contact for all leadership judges in them. By putting the role of President of Welsh Tribunals on a statutory footing in Amendment 107DA, we acknowledge the important work that Mr Justice Wyn Williams has done, while bringing greater consistency to operations and the provision of pastoral support to the leadership judges in the relevant tribunals. The fact that Mr Justice Wyn Williams has performed this role on an informal basis for some time is perhaps the best indication that there is a need for a permanent statutory position.

    Noble Lords will be aware that the Lord Chancellor and Lord Chief Justice have legal duties to increase diversity in the judiciary. For that reason, the Government consider that the selection and appointment process should be as open and transparent as possible.

    The new schedule inserted by Amendment 119AA provides for a two-stage process for the appointment of a person to this new statutory role. At the first stage, the Lord Chief Justice can recommend a candidate for appointment. If the person chosen is a current or former judge of the High Court or the Court of Appeal, and the Welsh Ministers and the Lord Chancellor agree with his recommendation, the appointment can go ahead. Where those conditions are not met, for example because there were two or more promising candidates, the Lord Chief Justice would be required to ask the Judicial Appointments Commission to recommend somebody for appointment. This is similar to the two-stage process that exists in relation to the Senior President of Tribunals, who carries out a similar role in relation to the First-tier and Upper Tribunals that exercise jurisdiction across England and Wales. If the Judicial Appointments Commission was invited to carry out a recruitment campaign, the new schedule created by Amendment 119AA makes it clear that its guiding principles of selection on merit and promotion of diversity would apply, just as they would in any other campaign carried out in England and Wales.

    On flexible cross-deployment, the measures in Amendment 107FA are related specifically to members of the Welsh tribunals being deployed from one Welsh tribunal to another, giving the president greater flexibility in the way judicial resources are managed and the ability to respond effectively to peaks and troughs in the workload of the tribunals. In addition, the Welsh Government agreed with the Lord Chief Justice, the Senior President of Tribunals and the Lord Chancellor that it might be beneficial if judges could move between reserved HMCTS tribunals and the devolved Welsh tribunals, if this were needed to meet urgent business needs. Amendments 107GA and 107H would provide the legal basis for cross-deployment to occur. They would allow judges from the Welsh tribunals to sit in the First-tier Tribunal and for judges from the First-tier and Upper Tribunals to sit in the Welsh tribunals, subject to the agreement of the senior judiciary on both sides. In reality, the Government anticipate that it is more likely that judges would be deployed from HMCTS tribunals into the Welsh tribunals than vice versa, but these amendments would permit movement in either direction. I hope the Committee will agree that both the creation of the office of President of Welsh Tribunals and the measures on cross-deployment are worth while.

    There is also an opposition amendment in this group. I look forward to hearing from the Opposition on that and will then respond to the points made. I beg to move.

  • My Lords, I shall speak to Amendment 108 in my name, which seeks to devolve the youth justice system in Wales. The amendment is perhaps slightly incongruously linked with this bank of amendments before the House.

    The ineffective and complex mix of devolved and non-devolved bodies that manage the Welsh youth justice system means that a fragmented approach is the best we can hope to achieve. The argument for the devolution of the youth justice system has been made by many experts in both policy and practice, including former Youth Justice Board chair, Professor Rod Morgan, who noted that it is illogical to have a system where factors linked to youth offending are often related to devolved services, such as education and training, social services and health, while youth offenders are dealt with through non-devolved services such as the police, youth offending teams and youth courts.

    My party colleague, North Wales Police and Crime Commissioner Arfon Jones, highlighted how a devolved youth justice system would provide an integrated and coherent children’s policy for Wales. Through a clear devolution settlement, the accountability, opportunities to innovate and the simplification of the way the youth justice system operates in Wales would lead to significant improvements for vulnerable children and young adults.

    Understandably, the English youth justice system, on to which elements of the Welsh system continue to be tacked, is concerned with English problems, particularly gangs and urban violence. In Wales, rural issues and poverty underpin the challenges faced. By creating a clean break between the two systems, we could enhance outcomes for children at risk in both nations, allowing policies and practices to be targeted and focused on the issues of greatest importance in both places.

    As another party colleague of mine, Liz Saville Roberts, highlighted in the other place, the Howard League for Penal Reform found out about our efforts to devolve youth justice and provided us with the following statement:

    “When it comes to Welsh children in trouble with the law, Wales should be able to come up with a Welsh solution to a Welsh concern. This is particularly the case because both social services and education policy are already devolved and it is a welfare-led approach which will prove most effective for troubled children. The Welsh Youth Justice Board already recognise this in their ‘children first’ approach and there is an opportunity to build on that distinctiveness and protect it from any Westminster-led reforms that fail to take into account the specific needs of Welsh children”.

    Coming from where it does, that quote ought to carry a lot of weight.

    The practical benefits of devolving the youth justice system are clear. It is outlined in the recommendations of the Silk commission, as I am sure the Minister will readily recall. It is exemplified by the fact that it is already devolved to Scotland and Northern Ireland, and it is reinforced by the fact that the Government already said they are looking to devolve aspects of youth justice to areas of England. Can the Minister explain to the people of Wales why establishments such as the Greater Manchester Combined Authority are set to gain increased competence over youth justice but the established National Assembly for Wales, with a track record on closely related issues, is not?

    I hope the Minister will listen to the advice of those involved in the sector and either support this amendment or bring forward an amendment on Report that will devolve the remaining aspects of the youth justice system to Wales.

  • My Lords, there is a mass of important material in this substantial group of amendments but I draw attention to one particular issue arising from government Amendment 107H, which would introduce a new clause. It appears that that would allow the Lord Chancellor to amend a section of primary legislation, so this clause would create a new Henry VIII power. Parliament ought always to be on the alert when new Henry VIII powers are proposed by the Government. It would be appropriate and helpful if the Minister explained the Government’s justification for this. I see the noble and learned Lord, Lord Judge, in his place but do not know whether he is minded to deploy his forensic powers in examination of this particular amendment. If he is, it would be otiose for me to say more.

  • My Lords, I support the Government’s approach on tribunals. The position on tribunals has been sorted in England and I was party to the discussions that went on at that time. The provisions put forward by the Government seem very sensible. I note in particular the question of cross-deployment of members of the tribunals, not merely within Wales from tribunal to tribunal but also with English counterparts. That indicates something I have said in earlier debates: there is nothing so arcane about Welsh law passed by the Welsh Assembly that it would be impossible for those brought up in the same traditions in England and Wales to be able to cope perfectly adequately with the issues that may arise.

    I also support Amendment 108, to which my name is attached. The Welsh division of the Youth Justice Board has operated very successfully in Wales and created new partnerships with social services, education and health—which are all devolved matters. There is a consensus view across what I hesitate to call the “stakeholders” in Wales in this area that it should be a devolved service. As the noble Lord, Lord Wigley, pointed out, the opportunities for its improvement and for experimentation would no doubt then be possible.

  • My Lords, this group of amendments relates to Welsh tribunals. We welcome the fact that the UK Government have brought forward these provisions. The new role of President of Welsh Tribunals will provide judicial leadership in support of the Welsh Government’s programme of tribunal reform. The ongoing reform of the Welsh devolved tribunals is designed to strengthen judicial independence and provide service improvement and consistent standards across England and Wales.

    Another amendment in this group relates to youth justice. There is a great deal of good practice in terms of Welsh public services working closely with the UK Youth Justice Board for the benefit of the child affected, but it is worth noting that this is one of the few areas of policy relating to children and young people that is not devolved to Wales. There is a danger that services may be commissioned for young people generally in Wales, while those in the youth justice system will not be able to access them. This is one of the reasons why the Welsh Government would like to see the youth justice system devolved. But the view on our Benches is slightly different, in that we believe that we should wait for the full publication the report by Charlie Taylor who is investigating this matter, and we believe that this is one of the areas on which our proposed justice commission should focus. I look forward to what the Minister has to say on these amendments.

  • My Lords, I thank noble Lords who have participated in the debate on this group of amendments. I shall first deal with the points made in relation to Welsh tribunals and the President of Welsh Tribunals. I thank noble Lords for the general welcome for provisions that strengthen Welsh tribunals and their operation in Wales.

    In relation to Amendment 107H, I say to the noble Lord, Lord Howarth, that I do not see anything irregular in this because the power to be exercised by the Lord Chancellor in relation to adding tribunals and so on to the list is subject to affirmative resolution in new Section 107H(3). So that would be entirely regular—but perhaps I misunderstood the noble Lord.

  • The provision to provide power for the Lord Chancellor by statutory instrument to amend primary legislation is—or ought to be —exceptional and needs some justification.

  • I stand to be corrected on this, but under new Section 107H(3) it is subject to an affirmative resolution of each House of Parliament, and that is entirely appropriate.

    Opposition Amendment 108 was ably moved by the noble Lord, Lord Wigley, and supported equally ably by the noble Lord, Lord Thomas of Gresford. As we have discussed on many occasions during the passage of the Bill, the Government’s position is clear: the justice system, including youth justice, should be a reserved issue. I am sure the noble Lord will not be surprised by that response.

    Under this model, the Assembly will continue to exercise legislative competence over key areas that impact on youth offending in Wales, such as health, children’s services and education. The Assembly and the Welsh Government will continue to be heavily involved in the management and rehabilitation of young offenders through partnership with the police—I note the comments made by the noble Lord, Lord Wigley, in relation to Arfon Jones the police and crime commissioner for North Wales—and devolved services under the Children and Young People First joint strategy, while a single system for managing young offenders across England and Wales is maintained.

    In short, there is a very effective partnership at the moment. I appreciate that that is, to some extent, dependent on the chemistry of the people involved, so I will write on this issue to explain how it is operating at the moment—because it appears to be operating more than satisfactorily, as far as I can see. I note the comments by the noble Baroness, Lady Gale, in relation to the Charlie Taylor review. I agree that it is an important review that obviously the Government will look at.

    The noble Lord, Lord Wigley, referred to the Silk commission and my role in it. The commission’s second report found that youth justice services work well and that there is close working between devolved and non-devolved partners. Its recommendation on devolution was aimed at promoting greater integration. It is quite true to say that there was a recommendation regarding devolution, but it was in the context of devolving more than youth justice. The noble Lord will know that the St David’s Day agreement that followed did not present any consensus on devolving justice. Accordingly, it is the Government’s position that all aspects of the justice system, including youth justice, should be reserved. However, we recognise the need for the close working relationship which appears to be working very well at the moment.

  • Will the Minister address my point that there is devolution of a different kind going on with youth justice being devolved to areas such as Manchester, yet they are not having a totally separate Home Office or judicial structure of their own? In these circumstances, and given the fact that the Labour Party, the Liberal Democrats, a lot of Cross-Benchers and ourselves support this movement and the Silk commission’s recommendation, will he look at this matter between now and Report to see whether there is room for greater devolution, at least of large parts of this, to the Assembly in order to get a coherent service in Wales?

  • My Lords, I thank the noble Lord for that contribution. I was coming on to deal with devolution to areas of England, to which the noble Lord referred, and to say that I will cover that in the letter that I am writing in relation to the current arrangements in Wales. My understanding—I have had a look at this—is that it does not involve devolution of policy issues in the way that this would to the Welsh Government. It will not allow English cities or regions to have separate policy arrangements, which I think is what the noble Lord is seeking. But I will cover that in the letter, as well as the arrangements that are likely to be in place in the areas of England where we are looking at devolution—Manchester, Liverpool, the West Midlands and so on. But, in short, I think that it is devolution of a different sort.

    I shall move on and talk about some of the cost implications that would be involved in replicating some of the functions that appear to be working well, partly by the purchase of custodial places in England owing to the lack of, for example, secure establishments in North Wales and secure training centres across the whole of Wales. That would be a necessary part of any devolution package. Perhaps more importantly, reserving legislative competence for youth justice ensures that the Government can apply a coherent approach to criminal justice and the management of offenders across all age groups, while enabling the joined-up working that is happening at the moment in Wales on the issues affecting youth offending.

    I recognise the significant and continuing role of devolved authorities in delivering youth justice services, as happens now, and the level of co-operation which already exists on the ground between devolved and non-devolved organisations. I put on record my thanks to the devolved and non-devolved organisations that are making it work. However, it is the Government’s view that not accepting the amendment will ensure that we have the most efficient, effective and consistent way to deliver youth justice services across England and Wales within the single legal jurisdiction.

  • Amendment 107C agreed.

    Amendment 107D had been withdrawn from the Marshalled List.

    Amendment 107DA (in substitution for Amendment 107D)

    Moved by

  • 107DA: After Clause 48, insert the following new Clause—

    “President of Welsh Tribunals

    (1) The Lord Chief Justice of England and Wales may appoint a person to the office of President of Welsh Tribunals or Llywydd Tribiwnlysoedd Cymru.(2) The President of Welsh Tribunals is not a Wales public authority for the purposes of the Government of Wales Act 2006.(3) Schedule (President of Welsh Tribunals) makes further provision about the President of Welsh Tribunals and about appointments under subsection (1).(4) A holder of the office of President of Welsh Tribunals must, in carrying out the functions of that office, have regard to—(a) the need for the Welsh tribunals to be accessible;(b) the need for proceedings before those tribunals—(i) to be fair, and(ii) to be handled quickly and efficiently;(c) the need for members of those tribunals to be experts in the subject-matter of, or the law to be applied in, cases in which they decide matters;(d) the need to develop innovative methods of resolving disputes that are of a type that may be brought before those tribunals.(5) The President of Welsh Tribunals is responsible—(a) for the maintenance of appropriate arrangements for the training, guidance and welfare of members of the Welsh tribunals within the resources made available by the Welsh Ministers;(b) for representing the views of members of the Welsh tribunals to the Welsh Ministers and to other members of the National Assembly for Wales.”

    Amendment 107DA (in substitution for Amendment 107D) agreed.

    Amendment 107E had been withdrawn from the Marshalled List.

    Amendment 107EA (in substitution for Amendment 107E)

    Moved by

  • 107EA: After Clause 48, insert the following new Clause—

    “Directions as to practice and procedure

    (1) The President of Welsh Tribunals may give directions as to the practice and procedure to be followed by the Welsh tribunals.(2) The president or chairman of a Welsh tribunal may give directions as to the practice and procedure to be followed by that tribunal.(3) A power under this section to give directions includes—(a) power to vary or revoke directions made in the exercise of the power;(b) power to make different provision for different purposes (including different provision for different areas);(c) (in the case of directions by the President of Welsh Tribunals) power to make different provision for different tribunals.(4) Directions under this section may not be given without the approval of the Welsh Ministers.(5) Subsection (4) does not apply to directions to the extent that they consist of guidance about any of the following—(a) the application or interpretation of the law;(b) the making of decisions by members of the Welsh tribunals. (6) Subsection (4) does not apply to directions to the extent that they consist of criteria for determining which members of the Welsh tribunals may be chosen to decide particular categories of matter; but the directions may, to that extent, be given only after consulting the Welsh Ministers.(7) Before the President of Welsh Tribunals gives directions under this section he or she must consult the president or chairman of each Welsh tribunal to which the directions relate.(8) Before the president or chairman of a Welsh tribunal gives directions under this section he or she must consult the President of Welsh Tribunals.(9) A person giving, varying or revoking directions under this section must publish the directions, or the variation or revocation, in whatever way the person thinks appropriate.”

    Amendment 107EA (in substitution for Amendment 107E) agreed.

    Amendment 107F had been withdrawn from the Marshalled List.

    Amendment 107FA (in substitution for Amendment 107F)

    Moved by

  • 107FA: After Clause 48, insert the following new Clause—

    “Cross-deployment of members of the Welsh tribunals

    (1) In Schedule 9 to the Agriculture Act 1947 (Agricultural Land Tribunal etc), in paragraph 15A, after sub-paragraph (1) insert—“(1A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Agricultural Land Tribunal may, at the request of the Chairman of the Agricultural Land Tribunal and with the approval of the President of Welsh Tribunals, act as a member of the Agricultural Land Tribunal.”(2) In Schedule 10 to the Rent Act 1977 (rent assessment committees), after paragraph 5A insert—“5B_ A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of a rent assessment committee in Wales may, at the request of the president or vice-president of the panel and with the approval of the President of Welsh Tribunals, act as a member of such a committee.”(3) In Schedule 2 to the Mental Health Act 1983 (Mental Health Review Tribunal for Wales), in paragraph 5—(a) after sub-paragraph (1) insert—“(1A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Tribunal but who is eligible to decide any matter in a case under this Act may, at the request of the President of the Mental Health Review Tribunal for Wales and with the approval of the President of Welsh Tribunals, act as a member of the Mental Health Review Tribunal for Wales.”(b) in sub-paragraph (3), after “sub-paragraph (1)” insert “or (1A)”.(4) In section 333 of the Education Act 1996 (Special Educational Needs Tribunal for Wales), after subsection (4) insert—“(4A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Tribunal may, at the request of the President and with the approval of the President of Welsh Tribunals, serve as a member of the Tribunal.”(5) In section 75 of the Local Government Act 2000 (Adjudication Panel for Wales), at the end insert—“(12) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Adjudication Panel for Wales may, at the request of the president or the deputy president (if any) and with the approval of the President of Welsh Tribunals, act as a member of a tribunal drawn from the Panel.”(6) In Schedule 3 to the Education Act 2005 (registration of inspectors in Wales: tribunals hearing appeals under section 27), in paragraph 1, after sub-paragraph (3) insert—“(3A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of a tribunal constituted to hear an appeal under section 27 may act as a member of such a tribunal at the request of its chairman and with the approval of the President of Welsh Tribunals.”(7) In Schedule 11 to the Welsh Language (Wales) Measure 2011 (nawm 01) (the Welsh Language Tribunal), after Part 2 insert—“PART 2ACROSS-DEPLOYMENT OF TRIBUNAL MEMBERS9A A member of the tribunal listed in section (The Welsh Tribunals) of the Wales Act 2016 (the Welsh Tribunals) who is not a member of the Tribunal may, at the request of the President and with the approval of the President of Welsh Tribunals, act as a member of the Tribunal.””

    Amendment 107FA (in substitution for Amendment 107F) agreed.

    Amendment 107G had been withdrawn from the Marshalled List.

    Amendment 107GA (in substitution for Amendment 107G)

    Moved by

  • 107GA: After Clause 48, insert the following new Clause—

    “Cross-deployment of tribunal members and judges

    (1) A member of a Welsh tribunal may act as a member of the First-tier Tribunal if—(a) the Senior President of Tribunals asks the member to do so, and(b) the President of Welsh Tribunals agrees to the request being made.(2) A judge or other member of—(a) the First-tier Tribunal, or(b) the Upper Tribunal,may act as a member of a specified Welsh tribunal if the President of Welsh Tribunals asks the member to do so and the Senior President of Tribunals agrees to the request being made.(3) Subsection (2) does not apply to a tribunal member who is a relevant judge.(4) A relevant judge may act as a member of a specified Welsh tribunal if—(a) the President of Welsh Tribunals asks the judge to do so, and (b) the Lord Chief Justice of England and Wales agrees to the request being made.(5) In subsections (2) and (4) “specified” means specified in the request.(6) In this section “relevant judge” means—(a) a judge of the Senior Courts;(b) a deputy judge of the High Court;(c) a Circuit judge;(d) a deputy Circuit judge;(e) a recorder;(f) a district judge;(g) a deputy district judge;(h) a District Judge (Magistrates’ Courts);(i) a Deputy District Judge (Magistrates’ Courts);(j) the holder of an office listed in—(i) the first column of the table in section 89(3C) of the Senior Courts Act 1981 (senior High Court Masters etc), or(ii) column 1 of Part 2 of Schedule 2 to that Act (High Court Masters etc).(7) A reference in this section to—(a) the President of Welsh Tribunals,(b) the Senior President of Tribunals, or(c) the Lord Chief Justice of England and Wales,includes a reference to an individual designated by that person to exercise the person’s functions under this section.(8) A designation made by a person under subsection (7) that is in force immediately before the person ceases to hold the office in question continues in force until varied or revoked by a subsequent holder of that office.”

    Amendment 107GA (in substitution for Amendment 107G) agreed.

    Amendment 107H

    Moved by

  • 107H: After Clause 48, insert the following new Clause—

    “Power to amend section (Cross-deployment of tribunal members and judges)

    (1) The Lord Chancellor may by regulations amend subsection (2) of section(Cross-deployment of tribunal members and judges)—(a) so as to add a tribunal to those listed,(b) so as to remove or revise a reference to a tribunal added under paragraph (a), or(c) so as to make amendments (to provisions of this Part or other enactments) that are consequential on an amendment within paragraph (a) or (b).(2) Regulations under this section may not add a tribunal whose functions—(a) are exercisable only in relation to Wales, and(b) do not relate to reserved matters (within the meaning of the Government of Wales Act 2006).(3) No regulations are to be made under this section unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.(4) Subsection (3) does not apply to a statutory instrument containing regulations that only make—(a) provision for the omission of a reference to a tribunal that has ceased to exist, (b) provision for the variation of a reference in consequence of a change of name or transfer of functions, or(c) amendments within subsection (1)(c).Such an instrument is subject to annulment in pursuance of a resolution of either House of Parliament.”

    Amendment 107H agreed.

    Amendments 108 to 110 not moved.

    Clauses 49 to 52 agreed.

    Clause 53: Consequential provision

    Amendment 111

    Moved by

  • 111: Clause 53, page 42, line 38, at end insert—

    “( ) If a statutory instrument containing regulations under subsection (2) includes provision within devolved competence or provision modifying a devolution enactment, the Secretary of State must send a copy of the instrument or, if subsection (7B) applies, a draft of the instrument to the First Minister for Wales and the First Minister must lay it before the Assembly.”

  • My Lords, this amendment is in my name and those of my noble friend Lady Morgan and the noble Lord, Lord Wigley. It is the first of a group of nine amendments dealing with the issues that arise from Clause 53. I also acknowledge that in this group are amendments in the name of the noble Lord, Lord Elis-Thomas.

    Before I turn my attention to the substance of the amendments, I remind the Committee that their established provenance, as it were, comes from amendments drafted and promoted, in some cases, by the Welsh Government and, in other cases, by the National Assembly. Given that, I hope that due weight will be attached to the amendments because of where they have come from and what they propose. I also draw attention to the fact that concerns about this clause have been brought to our attention not only by the National Assembly and the Welsh Government but by two reports from this House—one by the Delegated Powers Committee and a further one by the Constitution Committee. I shall draw to the attention of the Committee what those two reports say in their concerns about this clause.

    It is not surprising, mind you, that this clause has attracted such attention. As we have just been reminded, yet again here is a clause that introduces a Henry VIII power. We have been seeing an increasing tendency to use Henry VIII powers. The phrase “Henry VIII power” harks back to the fact that similar provisions can be found in early Tudor statutes—for example, a Statute of Sewers in 1531 and, more interestingly, the statute of Wales of 1542-43, have such powers in them. I need not tell anyone in this Committee what a Henry VIII power is, but we might as well remind ourselves: it is a power that allows the Secretary of State to modify, amend, repeal or revoke any piece of primary legislation through a statutory instrument.

    I suggest that the power in Clause 53 is a Henry VIII power-plus because of the way in which, in subsection (8), the clause defines primary legislation:

    “In this section ‘primary legislation’ means … an Act of Parliament”,

    or,

    “a Measure or Act of the National Assembly for Wales”.

    In other words, the clause will allow the Secretary of State to modify, repeal or amend any Measure or Act of the National Assembly for Wales. As the clause stands, the Secretary of State can do so unilaterally. There is no provision in the clause to involve, in any meaningful way, either the Welsh Government or the National Assembly, whose Measures and Acts are their property. I strongly believe we should look at a process by which the National Assembly could scrutinise and approve any such proposed statutory instrument.

    I therefore turn to the first of the reports from this House and the comments of the Delegated Powers Committee on this clause. I have a feeling that the Delegated Powers Committee is getting increasingly exasperated by the way in which these Henry VIII powers are being introduced and, for that very reason, by Clause 53 in particular. I remind the Committee what the Delegated Powers Committee said about Clause 53:

    “a Bill should not as a matter of routine confer a Henry VIII power such as that in clause 53”.

    That is the first of its exasperated comments. The second is, as that committee has repeatedly said on other Bills that have included Henry VIII powers, that,

    “where a Henry VIII power is included in a Bill, it must be fully explained and justified in the delegated powers memorandum”.

    No such full explanation or justification has been included in the memorandums on this clause.

  • Interesting and almost as potent is the committee’s observation in paragraph 43 of the report:

    “Regulations which amend or repeal ‘primary legislation’ as so defined are subject to the affirmative procedure in both Houses of the UK Parliament. However, there is no requirement in clause 53 for the Secretary of State to consult or seek the approval of the Assembly or Welsh Ministers before making regulations which amend a Measure or Act of the Assembly. We note with disappointment that no explanation is given in the memorandum”.

    I turn to the second of our committees that have reported on this clause, the Constitution Committee. It picks up strongly the issue that there is nothing in the clause allowing the Assembly to scrutinise, or indeed possibly approve, any of these statutory instruments. It quotes—effectively, in my view—a concern expressed by the Constitutional and Legislative Affairs Committee of the Assembly:

    “Regulations which seek to change the law that only applies in Wales and was made by the National Assembly, must be approved by the National Assembly. This is basic matter of constitutional propriety”.

    Paragraph 88 of the Constitution Committee report—the committee’s conclusion, which is in bold—states:

    “Clause 53 would permit legislation passed by the National Assembly for Wales to be amended by statutory instrument at the behest of a UK Government minister without the consent, or indeed involvement, of the National Assembly or Welsh Government. The House may wish to consider whether it would be more appropriate for the consent of the National Assembly to be required—as, for example, is the case for certain statutory instruments made under the Legislative and Regulatory Reform Act 2006 and the Public Bodies Act 2011”.

    The committee is prompting us to adopt the position that these amendments seek, which is to involve, in a formal way, the role of both the Welsh Government and the National Assembly in the scrutinising of any such statutory instruments.

    I had not noticed the two interesting precedents quoted in that paragraph. I looked up the Legislative and Regulatory Reform Act 2006 and the Public Bodies Act 2011, and both have within them a requirement that agreement or consent should be obtained from either the Welsh Government or the National Assembly before statutory powers can be exercised. So in some way we have precedents. I know it will be argued that there are precedents the other way as well, and that in fact in most devolution legislation this kind of provision has not been included. I would make the simple case that we are evolving our devolution process, and surely this would be one sensible way to evolve.

    What do the amendments do? I shall not burden the Committee with a detailed account of all of them; I shall take the two that pave the way for a number of the consequential amendments. Amendment 111, which I am in the process of moving, states:

    “If a statutory instrument containing regulations under subsection (2) includes provision within devolved competence or provision modifying a devolution enactment, the Secretary of State must send a copy of the instrument or, if subsection (7B) applies, a draft of the instrument to the First Minister for Wales and the First Minister must lay it before the Assembly”.

    That is the paving process, which begins to include the First Minister, the Welsh Government and the Assembly. Amendment 113, in my name and that of my colleague, states:

    “A statutory instrument containing regulations under subsection (2) that include—

    (a) a provision within devolved competence modifying any provision of primary legislation, or

    (b) a provision modifying any devolution enactment in primary legislation,

    may not be made unless a draft of the instrument has been laid before, and approved by, a resolution of the National Assembly for Wales”.

    I submit that both those amendments are sensible and propose perfectly workable arrangements.

    I wondered what was the case against, other than the fact that these provisions have not been made in previous devolution Acts. I searched to find out what the other place had said about the clause. I have to say that it never really got round to debating it in any deep or thorough way, but in Committee, on 11 July, it was mentioned. The burden of the Minister’s response was: “These powers are of a very minor character. All they will do is tidy up statutes”—I will come in a minute to the concept of tidying up statutes—“and you don’t need elaborate arrangements or processes because, anyway, we will consult the Welsh Government. How do you think we could possibly introduce a statutory instrument of this kind without consulting the Welsh Government?”. It is not the Welsh Government who should be consulted; it is the National Assembly. It is not the constitutional property even of a Welsh Government; Measures and Acts are the constitutional property of the National Assembly. The notion that there can be some informal consultation with the Welsh Government is wholly inadequate.

    I would love to believe that we could have tidy statutes. This is my 13th Parliament, now spanning more than 50 years. When I think of the hundreds of Bills and statutes that I have seen come and go through the other place in this place, I have a sneaking suspicion that a large majority of them were not very tidy, to say the least. They were not so tidy because so many of them were just amending an Act passed a year or two before, which had obviously been got wrong.

    Although I love the idea that this is all about tidy legislation, as Welsh Members here present know, in Anglo-Welsh terms, there is a particular connotation to the word “tidy”—“They are a tidy family” or “He’s the tidy child”. It is captured marvellously in the personification of Welsh tidiness, that wonderful character Mrs Ogmore-Pritchard, who ran a guesthouse but did not believe that any guests should come across the threshold, because they would make the place untidy. If these provisions are just a question of tidying up legislation, perhaps we should not call this a Henry VIII power; we might suggest the name of Mrs Ogmore-Pritchard.

    Whatever minor piece of tidying-up legislation the statutory instruments may bring, I cannot see the case against allowing the National Assembly and the Welsh Government to scrutinise and, where necessary, approve them. I do not know whether one can objectively talk about a tidy Bill or a tidying-up amendment. The National Assembly may well want to scrutinise and check whether it is just a tidying-up process or whether there is a matter of greater substance.

    I therefore have very great pleasure in moving the amendment.

  • My Lords, it is a delight to follow my noble friend Lord Rowlands, whom I first met as an extremely enthusiastic Welsh Office Housing Minister in 1974. He is as enthusiastic as ever, and his enthusiasm for devolution and for protecting and developing it and everything to do with Welsh administration has not waned since that time.

    As is often the case with our parliamentary Bills, the description of Clause 55 and Part 4 as “consequential provision” is totally inappropriate. I shall mainly address the amendments in my name in the group. Whenever I see the name of the Secretary of State for Wales—the name of the office, I should say, because there are distinguished former Secretaries of State present—referred to in devolution legislation, as a former Presiding Officer, I always ask why. I particularly ask why here for the reasons already set out and on the basis of the evidence given not just to committees of this House—we have heard about the Constitution Committee report—but to the Constitutional and Legislative Affairs Committee of the Assembly. As I announced in the previous debate, I am now returned to that committee, although with a different affiliation.

    As we know, it is the responsibility of such committees to look at legislative proposals from a constitutional point of view and assess their validity and constitutional propriety. The discussions of the National Assembly committee included one with the erudite and experienced Constitution Committee of this House. I was delighted that we met together, because it confirmed everything we had thought for ourselves. Therefore, we have the full support and authority of this House in what we are saying, and the authority of the distinguished lawyers I have cited before and will no doubt cite again when we debate these issues.

    Professor Thomas Glyn Watkin, in evidence to the Constitutional and Legislative Affairs Committee of the National Assembly on 22 June this year, emphasised that he was just as concerned about the provisions that now appear in Clause 53 as he was when they first appeared in the draft Bill; they have continued or been revived in the current Bill. It is a basic constitutional principle that a United Kingdom Secretary of State should not change legislation made by the elected Assembly of Wales. I would argue that Clause 2 is contrary to that principle. To go back to a discussion that the noble and learned Lord, Lord Judge, and I had in a previous sitting in Committee, how can we state that normally, Parliament will not legislate on behalf of the Assembly on matters which are in the competence of the Assembly, and yet give powers to a Secretary of State to change legislation?

    Professor Thomas Watkin’s view is very clear: any power which changes the law of the Assembly should be exercised in the Assembly. It is the Assembly that should be able to say whether it is acceptable to change the law. He goes further: he says that the approach in the clause,

    “highlights the fact that the powers of Westminster—even in devolved areas—are still superior in terms of their voice”.

    That was said by a senior legal academic in Wales, and those views are shared by Professor Rick Rawlings. There should be further amendment to this clause, as I seek in the amendments in my name, to ensure that the consent of the National Assembly is always required when such a power is exercised. These amendments have the support, as I indicated, of the Constitutional and Legislative Affairs Committee; the imprimatur, if I may so describe it, of the Llywydd, the Presiding Officer; and the advice of the Assembly legal services.

    We have to emphasise that in this House we are dealing with absolutely clear constitutional principles. Regulations that seek to change the law but which apply only in Wales and are made by the National Assembly must always be approved by the National Assembly. That is a simple case of constitutional propriety, as has been argued so eloquently already by my noble friend Lord Rowlands. I would regard any attempt by another legislature to change National Assembly law without consent as constitutionally unsound. As I have already said, it goes against the principles of Clause 2.

    I know what the Minister will say because we have discussed these matters. He will not accept my amendments, but I ask him to consider whether it is appropriate sometimes that he should apply his well-known constitutional skills and excellence as an academic lawyer to his practice of politics—even in this House—as he used to apply them so effectively when we both developed devolution in those early days together. I know that this is an unfair argument. It is an argumentum ad hominem, which is inappropriate, but I plead with him, even at this stage of our discussions, and certainly between now and Report, to reconsider. I will not say to him what I said once to a senior politician in Wales—“Go and pray”—but I ask him to pray in aid all the legal advice that we have given him in this House.

  • My Lords, I have the privilege of being a member of the Constitution Committee, but I speak on my own behalf. I do not have the privilege of being a Welshman but I have the privilege of looking at a statute; I have the privilege of remembering what a baleful influence Henry VIII was on the history of Wales, and his baleful influence looks as though it will continue. The 1536 Act was intended to crush the Welsh nation and the Welsh language. The devolution process was intended to row back hundreds of years of history.

    We are being invited to give Henry VIII powers to a Minister, by secondary legislation, to amend, modify, repeal or get rid of—whatever language we care to use—primary legislation. I have a very strong view on this, and shall address the House interminably about the besmirching effect on our constitutional arrangements of such clauses. However. I do not have to stop there in this instance. If Parliament chooses to give Henry VIII powers to the Minister, that is Parliament’s choice, but here it is giving Henry VIII powers to a Minister to reject, modify, get rid of or dispose of the legislation of the National Assembly—in other words, to eradicate, nullify or replace a statutory provision, enacted by a democratically elected legislature of our United Kingdom, on which the people living in Wales will have acted while the particular legislation has been enforced, and all without any consent from the Assembly. That seems an astonishing insult to the democratic process. The affirmative procedure that will undoubtedly be suggested as the solution does not—I say this with great respect—address the democratic deficit.

    The solution to the problem involves having another look at Clause 2 and transposing it into Clause 53. I do not need to spell this out. It is perfectly obvious that the consent of the Welsh Assembly is needed. I reject in Clause 2 that weasel word “normally”, which has all sorts of connotations that are not helpful to the analysis. There is another word beginning with “n” which should take its place: never.

  • My Lords, I shall speak to Amendments 120 and 120A, first to Amendment 120, standing in my name and those of my noble friends Lord Murphy of Torfaen and Lord Kinnock and the noble Baroness, Lady Randerson. It is a very straightforward amendment. Clause 2 introduces a new requirement that Parliament,

    “will not normally legislate with regard to devolved matters without the consent of the Assembly”.

    That was at the heart of the amendments that have just been addressed. It is an admirable clause, and its logic should surely apply to the Bill as well. In other words, the Bill should not come into effect—which is what the terms of Amendment 120 spell out—without the legislative consent of the Assembly. That is all it is asking for. I know that the Minister has worked very closely with Welsh Government Ministers, and his officials with theirs, so it seems to me that there should be no objection on his part to this amendment. Indeed, I hope he will respond in a conciliatory way because in that way, I think, he will also expedite progress on the Bill.

    I turn to Amendment 120A, standing in my name and that of my noble friend Lord Murphy of Torfaen. It will ensure that the Bill cannot come into force unless the Treasury has laid before each House of Parliament a document which sets out a fiscal framework for Wales agreed by the United Kingdom Government and the Welsh Government. As Your Lordships are aware from my speech at Second Reading, I am deeply sceptical that Wales will benefit from income tax devolution and fearful that Wales will actually lose out. The Treasury will not permit much-needed borrowing powers for Wales unless these are set against the revenue-raising powers that this Bill provides for. The First Minister desperately needs that borrowing to invest in infrastructure—from new roads and rail links to relieve chronic congestion, to new hospitals and schools. What is more, the Treasury will not otherwise provide the cover it could so easily do at such minuscule interest rates as currently exist for that infrastructure investment. I think this is financial smoke and mirrors—Treasury subterfuge. Yet the Government have trapped Wales between a rock and a hard place.

    I am suspicious that Wales is being badly short-changed by this income tax devolution, which is what I seek to address in this amendment. It is not about the substance of devolution, because that has already been debated, but about the fiscal framework that accompanies it. We do not yet have sight of the fiscal framework to accompany tax devolution, though we are grateful to the Minister for promising, in answer—and on the record—to my question on Second Reading, that we would be able to scrutinise it very carefully by Report. I am also grateful for his recent letter on the subject. All I can say is that it will have to be a mighty, mighty generous fiscal framework to Wales to persuade me to support it. The Treasury in a generous frame of mind will be a novel experience for us all. I speak as someone who, like my noble friend Lord Murphy, has negotiated with the Treasury as a Cabinet Minister on behalf of Wales.

    Therefore I wish to put a series of arguments to the Minister which will need to be fully addressed by the fiscal framework. In the time that he has left to tidy up that framework, I hope he will address them.

    I draw first on the authoritative 2010 report of the Independent Commission on Funding and Finance for Wales, chaired by Gerald Holtham. The key point is that Holtham acknowledged explicitly the risk that Wales’s income tax base might grow more slowly than the United Kingdom’s income tax base—that is to say, the risk of differential tax base growth. If that happened, the Wales budget would shrink relative to the UK as a whole and the degree of redistribution to Wales from richer parts of the UK would reduce.

    Holtham noted that one option could be to index deductions from the block grant to the growth over time of the devolved tax base in Wales. This would completely offset a devolved income tax in Wales and eliminate any risk arising from differential tax base growth. Other options would only partially eliminate this risk. So Holtham came up with a compromise, concluding in paragraph 5.25 that the,

    “best compromise appears to be very infrequent reviews of the tax bases of the devolved administration and a consequent adjustment to deductions from the block grant”.

    Such reviews and adjustments would require negotiations between the Wales Government and UK Ministers. Holtham suggested reviews every 12 to 15 years. Frankly that is far, far too long a period in my view, especially with the outlook for the British economy looking so uncertain with Brexit, as the Chancellor confirmed in his Statement today.

    Holtham made no recommendation for any kind of Treasury assurance to ensure that Wales did not lose out. The Holtham report simply recommended that the block grant should be reduced by an equivalent amount in the first year of the new system and that in,

    “subsequent years, the size of the block grant deduction should be calculated to reflect the growth of the relevant income tax bases across the UK as a whole”.

    That leaves the Wales budget open to being squeezed due to the Wales income tax base growing at a slower rate than that of the UK as a whole, with no guarantee that the Treasury would top up the block grant to fill the gap, meaning that Wales could certainly lose out. Holtham recommended that the block grant should be based on a needs-based formula that would determine budgets across England, Wales and Scotland. The three most relevant factors determining need would be demography, deprivation and costs.

    Based on past spending in England, Scotland and Wales, Holtham recommended that Wales should receive £115 per person to spend on devolved activities for every £100 per person spent on comparable activities in England. Will that be achieved by the fiscal framework—I hope that the Minister will reassure me—or will Wales be left with a funding gap? Holtham acknowledged that, had his needs formula been applied in 2010-11, Wales would have received only £112 for every £100 spent on devolved activities in England, due to weaknesses in the Barnett formula. This would have left Wales with a shortfall, a funding gap of about £400 million. Will the fiscal framework eliminate that gap?

    I also refer to the report by the respected Wales Governance Centre, Income Tax and Wales, published in February this year. On page 4 of the executive summary, it chillingly warns that,

    “the method chosen to reduce the Welsh block grant to account for the additional Income Tax revenues has the potential to cause losses of hundreds of millions of pounds each year to the Welsh budget”.

    Hundreds of millions each year—that is a massive risk, surely; a serious risk of hospitals and care homes closing, teacher numbers being cut, and local government budgets being savaged still further on top of the current round of austerity. Those issues need to be addressed in the fiscal framework.

    The Wales Governance Centre draws attention to important developments since the Holtham and Silk commissions. UK Government decisions to raise the personal tax allowance have drawn disproportionately more of Welsh incomes out of the income tax base than across the UK as a whole. So while UK income tax receipts have grown by 6% across the UK since 2010-11, the equivalent figure for Wales is only 2%—worryingly, only one-third of the UK figure. That is because Wales has income levels below the UK average. Fifty-five per cent of all taxpayers’ income in Wales comes from individuals earning less than £30,000 per annum compared with 42% across the UK.

    When in November 2015 the previous Chancellor of the Exchequer announced the Government’s decision to drop the referendum requirement for income tax devolution to Wales, he also declared that they would protect the Welsh budget by introducing a floor underneath Wales’ relative per capita funding, to save it from any so-called “Barnett squeeze”. But lack of clarification about this proposed Barnett floor has prevented the Wales Governance Centre from checking in detail how it might interact with income tax devolution and subsequent block grant adjustments—so we just do not know. The floor may be flawed, but nobody can tell.

  • I find all that extremely worrying. Wales is being pushed to take a leap into the economic darkness through tax devolution. Today’s Office for Budget Responsibility report, Economic and Fiscal Outlook—Devolved Taxes Forecast, has added to my concern. I refer particularly to table 2.6 on page 16. It leads to three specific questions about the likely squeeze on the Welsh government budget if income tax were to be devolved, to which the Government need to provide cast-iron answers in the fiscal framework.

    First, how great would the cut to the Welsh budget be if the trend since 2012 for the Welsh share of UK income tax to fall each year continues after 2019, rather than stabilises in three years’ time at 1.25%, less than it was in 2012, for the rest of the OBR forecast period up to 2020-21? What if the OBR’s assumption proves wrong? How hard would the Welsh budget be hit?

    Secondly, what would be the loss of income tax in Wales and consequential squeeze on the Welsh government budget if productivity growth and therefore real wage growth in Wales falls below the trend growth for the UK as a whole, assumed in today’s OBR report? How much further would the Welsh share of UK income tax fall due to the consequential rise in the proportion of taxpayer income in Wales attributable to individuals on relatively low incomes? This will surely happen if investment in Wales falls behind investment in the UK, or if Brexit hits the Welsh economy harder than it hits the UK economy, or if London and the south-east of England attract an ever-increasing share of new public investment. The latter was recently signalled by the decision of the transport department to defer electrification of the Great Western rail line to Bristol only days after the National Infrastructure Commission called for both road and rail links along the Oxford-Cambridge corridor to be upgraded, a recommendation endorsed by the Chancellor in his Autumn Statement today, although he made no mention of rail electrification investment to south Wales.

    Thirdly, in view of the OBR’s latest forecast in table 2.8 of today’s report that Welsh income tax in 2020-21 will be £417 million lower than in its November 2015 forecast—that means that in just over a year we will have lost £417 million from the income tax take in Wales, in the OBR forecast—how much greater would the squeeze on the Welsh government budget become in the absence of a new Barnett floor, and without a super-humanly protective new fiscal framework, which I just do not believe the Treasury will concede? I hope that the Minister confounds that disbelief. Just eight months after its last forecast, in other words, the OBR is projecting a £417 million reduction in tax revenues, which is a massive amount for the Welsh budget.

    I believe that offloading income tax to Wales is being driven to shrink the UK state. Conservative government economic devolution is a neoliberal objective, stunting the redistributive power of the state, and in this case stopping Wales benefiting from revenues redistributed from wealthy London and the south-east of England, where fully 40% of UK GDP is concentrated, and where the economy and therefore tax revenues are growing much faster. The north-east of England has a similar GDP per head and demographic to Wales, yet it will continue to benefit from that redistribution where Wales will not, at least not without radical compensating measures in the fiscal framework. If those compensating measures are as effective as they should be to top up the Treasury block grant to protect Wales, what on earth is the point of income tax devolution in the first place?

    For all progressives, whether to be found on the Labour, Liberal Democrat, Plaid Cymru, Cross—and maybe even on the Tory—Benches, surely the great virtue of modern Britain is that we have pooled and shared both risks and resources right across the UK to ensure common welfare and decent standards of life for all our citizens, regardless of nationality or where you live. This is part of what it means to be citizens in the same United Kingdom society. We share the gains and the pains. For generations there has been redistribution from richer to poorer parts of the UK, whether former mining communities in the Welsh valleys or English regions such as Cornwall and Durham. Of course some of that will continue because not all income tax is being devolved—for now at least.

    I understand that the proposed 10p income tax devolution to Wales is the equivalent of around 20% of the Welsh block grant—a fifth of the Welsh Government’s budget. The question therefore is: will that huge amount continue to be protected through the fiscal framework, against the warnings of the Holtham report and the Wales Governance Centre, and my own concerns as expressed in the last few minutes? That is a really big question for Wales, which has a large fiscal net deficit. The UK Treasury annually subsides Wales by nearly £15 billion, a massive amount equivalent to the entire Welsh government block grant. There are immense dangers to Wales which Welsh voters will be unable to resist by being deprived of a referendum. In the current climate, there is a danger that Wales is sleepwalking into potential impoverishment.

    For that reason—and I conclude on this; I apologise for my argument being at some length, but I think the issues it raises are substantive and need to be put on the record—I have tabled this amendment requiring parliamentary scrutiny of the fiscal framework and, most importantly, agreement to its detailed terms by the Welsh Government before the Bill can come into force. Given the spirit in which the Minister has responded to many of the amendments moved and tabled in the last few weeks, I very much hope that he will be able to accept this amendment. If there is a technical question around it, he may well be able to come back on Report to achieve the same effect; namely, that we will have the chance to scrutinise in some detail—perhaps by the committees of this House as well—the nature of the fiscal framework and what it will mean in view of the concerns that I have expressed, and which the Holtham report and the Wales Governance Centre have flagged up.

  • My Lords, I would like to ask a question of the noble Lord, Lord Elis-Thomas, about his Amendment 117. I am puzzled as to why in the last line of that amendment he has used “or” and not “and”. As drafted, his amendment would allow either House of this Parliament a veto on a statutory instrument made in Wales, and the role and power of the Assembly would be discretionary. That would seem to frustrate his own purpose. I am the more puzzled because in his Amendment 114 he uses “and” and not “or”. I would be intrigued to know why he has altered the drafting between one amendment and the other.

    I turn to the amendments just now proposed by my noble friend Lord Hain. I say simply that I strongly support his proposition that the Bill should not become law until a legislative consent Motion has been passed by the Welsh Assembly. It would be ironic in the extreme if these powers were to be imposed upon the Welsh Assembly. I know that the legislation is the product of an enormous amount of consultation between the Government here, the Government in Wales and the National Assembly. None the less, it would seem at the very least a courtesy and clearly appropriate, within the proper spirit of devolution, that the legislative consent Motion should be expected and required from Wales to endorse this legislative enactment.

    I also want to say a word about my noble friend Lord Hain’s Amendment 120A. He has given a very serious, important and compelling warning as to the dangers for Wales of being charged with income tax-altering powers—and perhaps coming under pressure actually to use them—without there being a reliable guarantee by the Government of the United Kingdom that Wales will have the resources to enable it to take advantage of those powers towards rates on income tax, without it leading to the fiscal impoverishment of Wales and the wider impoverishment of the Welsh economy and people. I give my strong support to my noble friend’s suggestion that none of the legislation that we have been debating in the Bill should come into force until that fiscal framework is in place. Indeed, I would go further. I suggest to the Minister that we should not proceed to Report on the Bill until we have that fiscal framework, because it seems very difficult for the House rationally to take decisions about what powers should be reserved and devolved in the absence of any clear picture of what resources will be available to Wales from 2020 onwards, following the expiry of present undertakings.

    In our debates on the reserved powers, the Minister has been highly constructive and very generous again and again in his willingness to take away the proposals made in various amendments and consider them further. We know that he seeks to provide a decent, generous and sustainable provision for devolution in Wales and it would be helpful to the House, and I dare say even helpful to him, if we did not proceed to a further stage in the passage of this legislation until the Government have also resolved these internal discussions that are taking place. In my view, the Bill was introduced prematurely to Parliament. A huge amount of work had gone into it: there have been many iterations and radical revisions of legislative proposals for devolution to Wales in this phase, and the Minister has always played a constructive part. It would be better, if there is time within this Session of Parliament, if we did not move hastily to Report until both issues have been clarified. What will be the fiscal resources in the longer term and what will be the formula or pattern of fiscal resourcing for Wales? We should not proceed further with the legislative process until the Government are much clearer than they have been hitherto on what exactly it is that they want to devolve.

  • May I extend to the noble Lord the courtesy of responding to his question relating to the amendment standing in my name? In the absence of an effective form of co-legislating between this House and the National Assembly for Wales, what I have sought to do in the process of Committee is to present to this House under my name—because there was no other way of doing it—a series of amendments which have been debated within the work of the constitutional affairs committee. They emanate from the Presiding Officer and in some cases I have even borrowed wording from the Welsh Government, with their permission, and wording from within the committee itself. We are thereby offering the Minister, as he sits before me, a whole choice—a menu—of alternatives to deal with the issues that he has created for himself. I hope that he will be able to take some of them up and that that answers the question.

  • The noble Lord, Lord Elis-Thomas, is not only a master of procedure both in the Welsh Assembly and in this Parliament; he is also most ingenious politically.

  • My Lords, I support my noble friend Lord Rowlands on his tidy amendment, which comes from a tidy friend. I have had the great pleasure of knowing my noble friend for 46 years; in fact, I was still in the sixth form when he first became a Welsh Member of Parliament. I know that the Minister has been hugely constructive during proceedings on the Bill. I hope that he will listen carefully to the points made by my noble friend, the noble and learned Lord, Lord Judge, and others with regard to Amendment 111.

    I also support my noble friend Lord Elis-Thomas on his amendments, particularly on what he said about the role of the Secretary of State for Wales having changed dramatically. When he was a new Presiding Officer and I was a new Secretary of State, I had a desk and a seat in the National Assembly. I also had an office there. When I had finished some years later in 2009, I had lost both my seat and my office. That was a measure of the Assembly growing up and beginning to understand that we do not want Secretaries of State interfering any more in what it does.

  • I am sure that my noble friend will want to explain to the Committee that this happened with the full consent of the holder of the office of Secretary of State, and that our relationship was always one of positive development.

  • I am grateful to my noble friend. I want in particular to support my noble friend Lord Hain and his two amendments. For the whole of the Labour Government—from 1999 onwards, anyway—he and I held the position of Secretary of State for Wales between us. Two things emerged which were themes in that job—he has already touched on this. One was ensuring that there were good relations between the Assembly in Cardiff and the Government and Parliament in London. It seems to me that Amendment 120, which talks about the legislative consent Motion, is a vital link. I do not think that this Bill would be worth anything unless the Welsh Assembly agreed with it. It would be a pointless, meaningless Bill.

    More particularly, on Amendment 120A, with regard to the fiscal framework, the Minister—and his boss—will know that relations between spending departments and the Treasury are never easy. Most of my time as a territorial Secretary of State was spent in negotiations with a less than benevolent Treasury, even when we thought that there was a lot of money about. It would try to stop and, occasionally, it would try to obstruct. I will not rehearse the arguments that we had some days ago on the devolution of income tax and a referendum but the danger with the devolution of income tax is that the Treasury will do its best to ensure that it keeps as much money as it can in negotiations between the Welsh Assembly—and the Secretary of State and Minister acting on the Assembly’s behalf—and the Treasury. There is an important issue here that, if the way in which the Assembly gets its money is to be dramatically changed—it is a dramatic change; I expressed earlier that I am quite dubious about the good effects of that—it will not necessarily be in terms of the democratic nature of income tax but the practical, realistic figures that result from its introduction. The people of Wales must not lose out upon the introduction of income tax powers for Wales and, ultimately, there should be a benefit to the people as a consequence of this new fiscal framework.

    I know that we cannot hold up a crystal ball, but my noble friend made a very powerful case with regard to the resource base in Wales. We are not a rich nation and the amount of money that we can raise in income tax is low, as has been indicated even today in the figures that the Government have put out with the Autumn Statement. The amount that comes from every penny raised in Wales is effectively much less than can be raised in the rest of the United Kingdom, because of the need to ensure—as my noble friend rightly said—that we share and distribute our resources.

    This amendment asks the Minister to tell us—on Report I assume, by which time there will hopefully have been an agreement on the fiscal framework—that the Bill should not proceed unless that fiscal framework is such that it is, at worst, neutral, and, at best, an improvement for the people of Wales in terms of what they get out of the settlement. There is no point in having a Bill that introduces the devolution of income tax if the Welsh people are going to be worse off because of the interrelationship between that and the block grant.

    I have great pleasure in supporting all the amendments that have been proposed this evening.

  • My Lords, I, too, support fervently and earnestly these amendments. I admire very much the eloquence and force with which those main arguments have been articulated, particularly, if I may say so, the magisterial rebuke that was delivered by my noble and learned friend Lord Judge.

    It is not enough just to safeguard legislation in Cardiff. That of course, has to be done; it would be a nonsense to create a sister parliament—as it was described by Speaker Martin when the Cardiff Assembly was established—and, at the same time, to treat it as a meaningless plaything. But that is not the whole point. Most of the legislation they let into Wales is Westminster-based so that, in so far as protection is concerned, it would have to be protected not just in Cardiff but here as well, otherwise the main thrust of this issue would be missed.

    I endorse everything that has been said by those who have held up this question of the template, as it were, of Clause 2. The Sewel protection, which was endorsed in Scottish legislation, has been perpetuated in this Bill. There is the danger that if nothing is done at all, the powers that we are discussing could make meaningless everything that is contained in Clause 2. I deliberately say “could make meaningless”, because there is the possibility that Clause 2 is meaningless already. In other words, if it were a case of Clause 2 being inserted in order to build a shield or carapace to protect the constitutional entity of Wales, it would be a very severe attack upon that protection. But, if in fact it were nothing more than merely declaratory of what was happening in any event, with the sovereign power of the Westminster Parliament deciding what was or was not necessary, it would of course be utterly meaningless. I do not think it necessary for us to dwell any further on that matter but it should be held up as a template for this piece of legislation.

    My third point is that Henry VIII was no great benefactor as far as Wales was concerned. The whole purpose of the Acts of Union was not only to say that Wales should not exist but that it never had existed. It was said that,

    “the dominion, principality, and country of Wales … is and ever hath been incorporated, annexed”,

    and included within the greater realm of England. We never were there at all. Certainly, as far as Henry VIII clauses are concerned, they should be dealt with very carefully, because they erase the authority of Parliament —or they are, at any rate, in a position to threaten that, at their very worst.

    I remember reading a book when I was a student by Sir Gordon Hewart, who was Attorney-General in, I think, the late 1930s. The book is called The New Despotism; it is an examination of the vast growth in powers delegated to Ministers by way of regulations. He saw this as a very great threat to parliamentary sovereignty. He was not talking about Henry VIII clauses but about the positive powers given to Ministers from day to day by way of regulations. If there was a new despotism then, now—three-quarters of a century and more later—that despotism has grown enormously. I would urge that thought be given to the exercise of delegated powers to Ministers. More and more are given every year and Parliament, even with the help of the massive effort of this House to scrutinise, finds it more and more difficult to sieve everything that goes through. And those powers are increasing. What Sir Gordon Hewart would have said of these negative powers I know not but, if there was a despotism three-quarters of a century ago, there is potential for very considerable despotism now.

    I urge the House to accept the arguments put forward so magnificently by my noble and learned friend Lord Judge and indeed by those powerful bodies, the Delegated Powers Committee and the Constitution Committee of this House. They are dangerous powers to use. We should use them with very great circumspection in any event. However, in Wales there is a principle involved—namely, that you do not set up a parliament which you intend to be a genuine devolved Assembly, and then treat it as a meaningless plaything.

  • My Lords, we have heard some stunning contributions this evening on an incredibly important aspect of the Bill. We have heard a devastating critique of Clause 53, in particular by my noble friend Lord Rowlands. I thank him for giving so much attention to an extremely difficult aspect of the Bill for the Assembly to live with. I urge the Minister to think very seriously about this clause, which is about repealing provisions in primary legislation. Within this House, there is an ability to look at those provisions, as the noble and learned Lord, Lord Judge, said. Both Houses can have the opportunity to look at what is being proposed. However, that opportunity is not available to the Assembly. That needs to be underlined. It is deeply discourteous to the Assembly and wrong in principle.

    If the Secretary of State proposes by order to modify parliamentary legislation or tidy it up, as my noble friend Lord Rowlands suggested, quite rightly he cannot do that without Parliament’s express agreement. In the same way, the Assembly’s legislation should be protected from modification up to and including repeal unless the Assembly is first asked to give its approval to a draft order proposing such a modification. The consent of the Assembly is needed, as the noble Lord, Lord Elis-Thomas, suggested.

    Secondly, we seem to be continually going back to the problems with Clause 2. I again urge the Minister to listen to what the noble and learned Lord, Lord Judge, and the noble Lord, Lord Elystan-Morgan, said about that clause. I know that the Minister was not persuaded that there was a need to amend it as we suggested. But I think it was common ground that a parliamentary Bill modifying the Assembly’s legislative competence could proceed only with the Assembly’s consent. That is an important feature of the devolution settlements. But the problem is that Clause 53 envisages that the Secretary of State can, with the approval of each House of Parliament, modify any Act of Parliament in consequence of provisions in this Bill.

    Given the subject matter of the Bill, the Acts vulnerable to such modification are most likely to be the earlier Welsh devolution legislation—the 2006 Act and the 2014 Act. If modifications to those Acts were proposed by way of a parliamentary Bill, the Assembly’s consent would be required. But the Government apparently envisage that, if the modifications are to be given effect by a Secretary of State’s order under Clause 53, it can proceed without the need for Assembly consent. That cannot be right.

    Amendments 111, 113 and others in this group address the two points that I have outlined. Their effect in summary is that, if the Secretary of State proposes to use his order-making powers to modify Assembly legislation, that should be subject to prior Assembly consent. That requirement for prior Assembly consent in respect of a proposed Secretary of State order is also to apply if the order envisages a modification of a devolution enactment—in other words, a provision of either the 2006 Act or the 2014 Act. In that way, the fundamental principle that Assembly consent is required before its functions or competence can be modified is preserved. I urge the Minister to think very carefully before proceeding any further with the Bill. This fundamental principle undermines the democratic integrity of the Assembly.

    I thank my noble friend Lord Hain for drawing attention to the point that a legislative consent Motion needs to be passed by the Assembly, and the financial framework settled. I hope that Treasury Ministers were listening to what he had to say, but I will make sure that the Assembly Minister who will negotiate this issue hears what my noble friend had to say, because he underlined some important issues. We cannot see Wales lose out financially as a result of the Bill.

    I know that we have previously had reassurance from the Minister on the need for a legislative consent Motion before the Bill is passed. If he could underline that once more for us, it would give us confidence. When the Minister replies to the debate, I hope that he will talk us through the final sequencing of the next part of the consideration of the Bill. What will the sequencing be? When will the financial framework be necessary? When will the legislative consent memorandum be put before the Assembly? When will the Motion come before it? If the Minister could talk us through that sequencing, it would be very useful.

  • My Lords, I thank noble Lords who have participated in the debate on the amendments in this group. I shall first discuss Amendments 111 to 119, and thank the noble Lord, Lord Rowlands, for moving Amendment 111. I understand the points that he made. He was ably backed up by the noble Lord, Lord Elis-Thomas, the noble and learned Lord, Lord Judge, and others. I think that the arguments basically boil down to two strands. The first is the type of issue that is subject to this tidying-up exercise, as we see it. The second issue concerns equality of treatment of the Assembly in relation to Parliament. I will deal with both points.

    First, it is not anticipated that the provision in Clause 53 will be used for anything more than minor consequential amendments. I urge noble Lords to be very careful about what they wish for in relation to this. I will double-check examples and write to noble Lords about them. But if, for example, the issue is one of tidying up an enactment to provide that a parish council in England is a community council in Wales, I suggest that that sort of issue is best dealt with in the way set out in the Bill. However, given the understandable concerns that have been raised, I will write to noble Lords giving examples in relation to that.

  • On the point the Minister has just made, would it be possible to amend the Bill to make it clear that this power is intended to deal only with minor, consequential amendments? If the Bill were able to say that in terms, it might be helpful. It might also be helpful to the courts in future if they found themselves attempting to construe the legislation.

  • My Lords, I am grateful for the intervention of the noble Lord, Lord Howarth. I also thank him for his very kind comments earlier. I will cover these issues in a letter, if I may, as I would like to go away and have a look at this. I am certainly not making any commitment on that but I would like to give examples of how this has been used and how we anticipate that it will be used in the future.

    The second issue is in many ways a more serious concern, certainly for somebody who has been a Member of the Assembly and knows that it has to be dealt with in a proper constitutional and respectful way—so I listened very carefully to what was said there. This has been a very considered debate. However, if we were to provide a role in approving regulations such as was suggested, it would be anomalous and would introduce unnecessary complexity into the process. I will explain why that is the case. In reality, we would discuss with the Welsh Government any proposed changes that impacted on Welsh legislation.

    To illustrate the anomaly, the Assembly acts in exactly the same way as Parliament does. For example, the Assembly has recently passed the Renting Homes (Wales) Act 2016. Section 255 of that Act includes a power for Welsh Ministers to make consequential amendments to any enactment. “Enactment” is defined in Section 252 of the Renting Homes (Wales) Act to include Acts of Parliament and secondary legislation made under Acts of Parliament. Further, in the last two years two-thirds of Assembly legislation has had similar provisions. So, in relation to the equality argument, we are dealing in exactly the same way here as in Parliament. Noble Lords may say that that does not answer the first point, and it does not—but it certainly answers the point about equality.

  • I do not think that it does. There is a difference between a legislature which is developing new legislation within the framework previously laid down by this Parliament because there is no other legislative framework, and making provision—which therefore distinguishes itself from the rest of the United Kingdom—and what a United Kingdom Parliament might seek to do, and for what reason, to intervene in the legislative process of what might be regarded as a subordinate legislature. Those are the differences, and that is where the concerns come from.

  • My Lords, much as I have the greatest respect for the noble Lord, that is not a tenable argument in law, as I am sure he knows. I take the point about the political dimension, as he knows, but on the legal aspect, the two bodies operate in just the same way. However, as I say, I will write to noble Lords on that. I understand the arguments being put forward, by the noble Lord, Lord Rowlands, in particular, as well as his point about the evolving devolution process, which makes this type of arrangement sensible where there is reciprocity. I will write to noble Lords on that point.

    Amendments 120 and 120A were spoken to effectively by the noble Lord, Lord Hain, who took us through some of the financial aspects that have to be considered. I understand that. First, on something I have stated many times, although I will certainly state it again, we will not move to Third Reading—as I said at Second Reading—until there is a legislative consent Motion. So, if there is no legislative consent Motion—and there may not be; that is an issue for the National Assembly for Wales and the Ministers of the Welsh Government—we will have no Third Reading.

    In relation to Report, I understand from discussions with officials—this may well be confirmed by Members of the Opposition Front Bench, who obviously have had discussions with Welsh Ministers—that there is a desire for us to move to Report so that we are closer to the sort of Bill that we will see at the end and so that the Welsh Government can then move to the legislative consent Motion, content that we are moving in an appropriate way. So we are keeping in touch on that, but I understand that there is a consensual element here to having Report, the first date of which is already public and will take place before Christmas.

    We will have two days on Report to reflect on many of the important issues we have dealt with, and the second day will be soon after we come back in the new year. As I understand it—the noble Baroness pressed me on this issue—we are hoping for a legislative consent Motion in the middle of January before moving to Third Reading shortly after that. That is the suggested choreography, but of course we are in the hands of the Welsh Government and the National Assembly for Wales in relation to the legislative consent Motion. I cannot be definitive about that but I can be definitive, as I think I have been in the past, that we will not move to Third Reading until we have the legislative consent Motion. I should also say that there is pressure elsewhere in the legislative programme, as I am sure noble Lords will accept.

  • Just briefly, given what the Minister has just said, does that mean that the fiscal framework will not be available to be scrutinised before the Assembly has given its legislative consent Motion? In other words, if he is promising it only by Third Reading, is he saying that the legislative consent Motion would have to be passed by the Assembly without the fiscal framework being agreed—or, indeed, without both Houses having had a look at it?

  • The noble Lord raises a point about my stating that we would not proceed until Third Reading. That is a restatement of what I said at Second Reading—I checked that before coming to the House. As I have indicated, the precise timing of the legislative consent Motion is not dependent on me, the Government, the House of Lords or on the House of Commons but on agreement between the Treasury and Welsh Government Ministers and then the agreement of the National Assembly for Wales.

    On the fiscal framework document, the noble Lord will know that the Bill has already been through the other place and will go back there for consideration of government amendments—we have many government amendments that are measures that we all agree upon. But I am not sure that in any event that would give the opportunity for consideration of the fiscal framework as it will be only Commons consideration of Lords amendments: so they will only be able to consider any amendments we make on Third Reading.

    I will endeavour through representations to see what additional information we can give on the discussions. Another meeting is due on 1 December, and from what we can gather, discussions are going well—I have heard this from both the Welsh Government side and our own Treasury side. I will endeavour to give an update as to where we are on 1 December. If we are able to give additional information, I will be happy to do that—but to some extent that will depend on the consent of the Welsh Government as well as our own Government. I do not foresee any problem on that, but obviously that is for them to determine. The date of the legislative consent Motion is not just dependent upon having the fiscal framework agreed, as I understand it; it then has to be considered by the Constitutional and Legislative Affairs Committee of the National Assembly—I can see that the noble Baroness, Lady Morgan, is indicating agreement to that.

  • My Lords, I understand that the committee is about to begin consideration.

  • I am most grateful to the noble Lord, who I know sits on that committee and plays a leading part in it. I assure the noble Lord that if I can help and be forthcoming with any information, it will be made available.

    On the other issue raised by the noble Lord, Lord Hain—the fiscal framework and the discussions on it—first, it is not for me to enter into these negotiations. They are going on between the Treasury and Welsh Government Ministers, and whatever my political differences with Carwyn Jones, Mark Drakeford and others, I have no doubt about and in fact have the highest opinion of their abilities and insight. This is a consensual arrangement. If they do not want an agreement on proposed terms, they have the option of not saying so—and if there is no legislative consent Motion, there is no Bill. So there is no question of a pistol being applied to anybody’s head; the issue is for the National Assembly to determine.

    Having been there, I have the greatest respect for the Ministers and officials. That is being hammered out, I gather that robust discussions are taking place and I am sure, and hope, that they are considering the best interests of Wales. But any representations by noble Lords opposite should be made to the First Minister, the Finance Minister and others in those discussions. It is not for me or for us to shadow manage what they are doing—and, I am sure, doing very effectively.

    That probably summarises the Government’s position. I have given the undertaking sought; I will do my best to make information available on the fiscal discussions as they become available. I understand what noble Lords say about protecting Welsh interests, but under these devolved Administrations and in these devolved days, it is for the Welsh Ministers and the National Assembly for Wales to bring forward the legislative consent Motion. With that, and with those undertakings, I urge the noble Lord to withdraw his amendment and other noble Lords not to press their amendments.

  • My Lords, I listened carefully to the Minister, as always, and I am fascinated by this concept of “reciprocal” and the promise of a letter that will describe to us how this will work or has worked. Does the Welsh Assembly exercise such power to intervene to change English legislation?

  • My Lords, I am not sure whether it has, but I will try to give the noble Lord that information. The material point is that it can, just as we can. I am not sure how many times that has been exercised, but I will endeavour to cover that in the letter.

  • Again, I shall look forward to that letter. I do not know how other noble Lords feel but I just find it very difficult to believe that there should not be a provision of the kind we have been trying to introduce. If the United Kingdom Parliament chooses, unilaterally, to seek to amend legislation that belongs to the National Assembly, it has to have some form of consent or approval. That is a fundamental principle of constitutional propriety and property.

  • Another point that I had meant to mention—again, I will cover it in the letter; I appreciate that it does not fully answer the point but I shall try to give examples—is that the identical power exists in relation to Scotland.

  • I am looking forward to this collection of letters—a few have already been mentioned. I am happy to beg leave to withdraw the amendment but I warn the Minister that we will come back to this issue on Report.

  • Amendment 111 withdrawn.

    Amendments 112 to 119 not moved.

    Amendment 119A had been withdrawn from the Marshalled List.

    Clause 53 agreed.

    Amendment 119AA (in substitution for Amendment 119A)

    Moved by

  • 119AA: Before Schedule 5, insert the following new Schedule—

    “PRESIDENT OF WELSH TRIBUNALSPART 1APPOINTMENTDuty to fill vacancies

    1 (1) If there is a vacancy in the office of President of Welsh Tribunals, the Lord Chief Justice must appoint a person to that office.(2) Sub-paragraph (1) does not apply to a vacancy while the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers all agree that it may remain unfilled.(3) In this Schedule “the Lord Chief Justice” means the Lord Chief Justice of England and Wales.The two routes to appointment: agreement under this paragraph or selection under Part 2

    2 (1) The Lord Chief Justice, before he or she may appoint a person to the office of President of Welsh Tribunals, must consult—(a) the Lord Chancellor, and(b) the Welsh Ministers.(2) Sub-paragraphs (3) and (4) apply if—(a) the outcome of consultation under sub-paragraph (1) is agreement between the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers as to the person to be appointed, and(b) the person holds or has held office as—(i) an ordinary judge of the Court of Appeal in England and Wales, or(ii) a puisne judge of the High Court.(3) The Lord Chief Justice must appoint the person to the office of President of Welsh Tribunals, subject to sub-paragraph (4).(4) Where the person—(a) declines to be appointed, or does not agree within a time specified to him or her for that purpose, or(b) is otherwise not available within a reasonable time to be appointed,the Lord Chief Justice must, instead of appointing the person, consult afresh under sub-paragraph (1).(5) If the Lord Chief Justice has consulted under sub-paragraph (1) but sub-paragraphs (3) and (4) do not apply following that consultation, he or she must make a request to the Judicial Appointments Commission (“the Commission”) for a person to be selected for appointment to the office of President of Welsh Tribunals.PART 2SELECTION BY THE JUDICIAL APPOINTMENTS COMMISSIONEligibility for selection

    3 A person is eligible for selection in pursuance of a request under paragraph 2(5) only if he or she satisfies the judicial-appointment eligibility condition on a 7-year basis.The selection process

    4 (1) On receiving a request from the Lord Chief Justice under paragraph 2(5) the Commission must appoint a selection panel. (2) The panel must have an odd number of members not less than five.(3) The members of the panel must include—(a) at least two who are non-legally-qualified,(b) at least two judicial members, and(c) at least two members of the Commission.Contributions to meeting more than one of the requirements may be made by the same person’s membership of the panel.(4) The panel must—(a) determine the selection process to be applied;(b) apply the selection process;(c) make a selection accordingly.(5) As part of the selection process the panel must consult—(a) the Lord Chancellor;(b) the Welsh Ministers.(6) One person only must be selected for the appointment to which a request relates.(7) Sub-paragraph (4) applies to selection under this paragraph and to selection under regulations made under paragraph 7.(8) A selection panel is a committee of the Commission.Merit and good character

    5 (1) This paragraph applies to any selection by a selection panel appointed under paragraph 4.(2) Selection must be solely on merit.(3) A person must not be selected unless the selection panel body is satisfied that he or she is of good character.(4) Neither “solely” in sub-paragraph (2), nor Part 5 of the Equality Act 2010 (public appointments etc), prevents the selection panel, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within—(a) the group of persons who hold offices for which there is selection by panels appointed by the Commission, or(b) a sub-group of that group.Encouragement of diversity

    6 (1) A selection panel appointed under paragraph 4, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection.(2) This paragraph is subject to paragraph 5.Regulations about selection

    7 (1) The Lord Chancellor must by regulations made with the agreement of the Lord Chief Justice and the Welsh Ministers—(a) make further provision about the process to be applied in a case where the Commission receives a request under paragraph 2(5);(b) make further provision about—(i) membership of selection panels appointed under paragraph 4, and(ii) the process that is to be applied in a case where a selection panel is required to be appointed under that paragraph;(c) secure, subject to paragraph 8 and any provision within paragraph (2)(d) that is included in the regulations, that in every case referred to paragraph (a) or (b)(ii) there will come a point in the process when a selection has to be accepted, either unconditionally or subject only to matters such as the selected person’s willingness and availability, by or on behalf of the Lord Chief Justice.(2) The regulations may in particular— (a) provide for process additional to the selection process applied under paragraph 4(4), including post-acceptance process;(b) make provision as to things that are, or as to things that are not, to be done—(i) as part of the selection process applied under paragraph 4(4), or(ii) in determining what that process is to be;(c) provide for paragraph 4(4)(c) not to apply where, or to the extent that, the Commission decides that the selection process applied under paragraph 4(4) has not identified candidates of sufficient merit for it to comply with paragraph 4(4)(c);(d) give powers to the Lord Chief Justice, including—(i) power to require a selection panel to reconsider a selection under paragraph 4(4) or any subsequent selection,(ii) power to reject a selection under paragraph 4(4) or any subsequent selection, and(iii) power to require the reconsideration of a decision mentioned in paragraph (c);(e) provide for particular action to be taken by the Commission or a selection panel after the panel has complied with paragraph 4;(f) provide for the dissolution of a selection panel appointed under paragraph 4;(g) provide for a person to cease to be a member of such a panel where the person’s membership of the panel ceases to contribute to meeting a requirement about the panel’s members;(h) provide for a person to become a member of such a panel where another person ceases to be a member of the panel or where another person’s membership of the panel ceases to contribute to meeting a requirement about the panel’s members;(i) make provision for or in connection with assessments, whether pre-acceptance or post-acceptance, of the health of persons selected;(j) provide for the Lord Chief Justice to nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise functions given to the Lord Chief Justice by the regulations;(k) make provision as to the meaning of “non-legally-qualified” and “judicial member” in paragraph 4(3).(3) Regulations under this paragraph—(a) may make different provision for different purposes;(b) may make transitory, transitional or saving provision.(4) The power to make regulations under this paragraph is exercisable by statutory instrument.A statutory instrument containing regulations under this paragraph may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(5) This paragraph is subject to paragraph 8.Withdrawal and modification of requests

    8 (1) The Lord Chief Justice may withdraw a request under paragraph 2(5)—(a) with the agreement of the Welsh Ministers, or(b) if, after consulting Welsh Ministers, the Lord Chief Justice considers the selection process determined by the selection panel is not satisfactory, or has not been applied satisfactorily.(2) The Lord Chief Justice may modify a request under paragraph 2(5) with the agreement of the Welsh Ministers. (3) If a request is withdrawn in part or modified, the selection panel may, if it thinks it appropriate because of the withdrawal or modification, change any selection already made pursuant to the request, except a selection already accepted.(4) The Lord Chief Justice may not withdraw a request under sub-paragraph (1)(b) if a selection made pursuant to the request—(a) has been accepted unconditionally or subject only to matters such as the selected person’s willingness and availability, or(b) in exercise of power conferred by regulations under paragraph 7, has been rejected or required to be reconsidered.(5) Any withdrawal or modification of a request must be by notice in writing to the Commission.(6) In the case of a withdrawal of a request, the notice must state whether it is under sub-paragraph (1)(a) or (b).(7) In the case of a withdrawal under sub-paragraph (1)(b), the notice must state why the Lord Chief Justice considers the selection process determined by the selection panel is not satisfactory, or has not been applied satisfactorily.(8) If or to the extent that a request is withdrawn—(a) the preceding provisions of this Part of this Schedule cease to apply in relation to it;(b) any selection made on it is to be disregarded.(9) Withdrawal of a request to any extent does not affect the power of the Lord Chief Justice to make another request in the same or different terms.Effect of acceptance of selection

    9 (1) Subject to the following provisions of this paragraph, where the Lord Chief Justice accepts a selection made under paragraph 4(4) he or she must appoint the person selected.(2) Before making the appointment the Lord Chief Justice may direct the Commission to make arrangements in accordance with the direction—(a) for any assessment of the health of the person selected that the Lord Chief Justice considers appropriate, and(b) for a report of the assessment to be made to the Lord Chief Justice.(3) Sub-paragraph (4) applies in any of the following circumstances—(a) the Lord Chief Justice notifies the Commission that he or she is not satisfied on the basis of a report under sub-paragraph (2)(b), having consulted the Welsh Ministers, that the health of the person selected is satisfactory for the purposes of the appointment;(b) the person selected declines to be appointed, or does not agree within a time specified to him for that purpose;(c) the person selected is otherwise not available within a reasonable time to be appointed.(4) Where this sub-paragraph applies—(a) the selection accepted and any previous selection for the appointment are to be disregarded;(b) the request pursuant to which the selection was made continues to have effect;(c) any subsequent selection pursuant to that request may be made in accordance with the same or a different selection process.PART 3TERMS OF OFFICETenure, removal, resignation etc

    10 (1) If— (a) a person is appointed to the office of President of Welsh Tribunals on terms that provide for him or her to retire from the office at a particular time specified in those terms (“the end of the fixed term”), and(b) the end of the fixed term is earlier than the time at which the person is required by the 1993 Act to retire from the office,the person shall, if still holding the office at the end of the fixed term, vacate the office at the end of the fixed term.(2) Subject to sub-paragraph (1) (and to the 1993 Act), a person appointed to the office of President of Welsh Tribunals holds that office during good behaviour, subject to a power of removal by Her Majesty on an address presented to Her by both Houses of Parliament.(3) It is for the Lord Chancellor to recommend to Her Majesty the exercise of the power of removal under sub-paragraph (2).(4) In this paragraph “the 1993 Act” means the Judicial Pensions and Retirement Act 1993.11 A person who holds the office of President of Welsh Tribunals may at any time resign that office by giving the Lord Chief Justice notice in writing to that effect.12 (1) The Lord Chief Justice, if satisfied by means of a medical certificate that a person holding the office of President of Welsh Tribunals—(a) is disabled by permanent infirmity from the performance of the duties of the office, and(b) is for the time being incapacitated from resigning the office,may, subject to sub-paragraph (2), by instrument under his or her hand declare the person to have vacated the office; and the instrument has the equivalent effect for all purposes as if the person had on the date of the instrument resigned the office.(2) A declaration under sub-paragraph (1) with respect to a person is of no effect unless it is made with the concurrence of—(a) the Lord Chancellor, and(b) the Welsh Ministers.Remuneration, allowances and expenses

    13 The Welsh Ministers may pay to the President of Welsh Tribunals whatever amounts they determine in respect of—(a) remuneration;(b) allowances;(c) expenses.Oaths

    14 (1) A person appointed to the office of President of Welsh Tribunals must take the required oaths in the presence of—(a) the Lord Chief Justice, or(b) another holder of high judicial office (as defined in section 60(2) of the Constitutional Reform Act 2005) who is nominated by the Lord Chief Justice for the purpose of taking the oaths from the person.(2) Sub-paragraph (1) applies whether or not the person has previously taken the required oaths after accepting another office.(3) In this paragraph “the required oaths” means—(a) the oath of allegiance, and(b) the judicial oath,as set out in the Promissory Oaths Act 1868.”

    Amendment 119AA (in substitution for Amendment 119A) agreed.

    Schedule 5: Minor and consequential amendments

    Amendments 119B to 119G

    Moved by

  • 119B: Schedule 5, page 101, line 9, at end insert—

    “6A In section 116M (duty to disclose information on Welsh land transactions to HMRC), in subsection (1), for “A person who is a member of the Welsh Government” substitute “The Welsh Revenue Authority”.”

    119C: Schedule 5, page 111, line 34, leave out “6(9)(g), (i) and (j)” and insert “6(2), (3) and (9)”

    119D: Schedule 5, page 111, line 34, at end insert—

    “( ) section 6A(11);( ) section 6B(5) and (7);”

    119E: Schedule 5, page 112, line 13, leave out “6(9)(g), (i) and (j)” and insert “6(2), (3) and (9)”

    119F: Schedule 5, page 112, line 13, at end insert—

    “( ) section 6A(11);( ) section 6B(5) and (7);”

    119G: Schedule 5, page 112, line 33, leave out “or 37”

    Amendments 119B to 119G agreed.

    Amendment 119H had been withdrawn from the Marshalled List.

    Amendment 119HA (in substitution for Amendment 119H)

    Moved by

  • 119HA: Schedule 5, page 113, line 31, at end insert—

    “Judicial Pensions and Retirement Act 1993 (c. 8)

    48A In Schedule 5 to the Judicial Pensions and Retirement Act 1993 (retirement provisions: the relevant offices), after the entry for the Senior President of Tribunals insert—“President of Welsh Tribunals”.”

    Amendment 119HA (in substitution for Amendment 119H) agreed.

    Amendment 119HB

    Moved by

  • 119HB: Schedule 5, page 114, line 6, at end insert—

    “52A In section 77 of that Act (adjudications) omit subsection (5).”

    Amendment 119HB agreed.

    Amendment 119J had been withdrawn from the Marshalled List.

    Amendment 119JA (in substitution for Amendment 119J)

    Moved by

  • 119JA: Schedule 5, page 114, line 39, at end insert—

    “Constitutional Reform Act 2005 (c. 4)

    55A In section 109 of the Constitutional Reform Act 2005 (disciplinary powers: interpretation), in subsection (5), after paragraph (da) insert— “(db) President of Welsh Tribunals;”.”

    Amendment 119JA (in substitution for Amendment 119J) agreed.

    Amendment 119K

    Moved by

  • 119K: Schedule 5, page 115, line 3, at end insert—

    “Commissioners for Revenue and Customs Act 2005 (c. 11)

    56A In section 18 of the Commissioners for Revenue and Customs Act 2005 (confidentiality), in subsection (2)(j), for “the Welsh Ministers” substitute “the Welsh Revenue Authority”.”

    Amendment 119K agreed.

    Amendment 119L had been withdrawn from the Marshalled List.

    Amendment 119M (in substitution for Amendment 119L)

    Moved by

  • 119M: Schedule 5, page 115, line 30, at end insert—

    “Tribunals, Courts and Enforcement Act 2007 (c. 15)

    59A(1) Section 47 of the Tribunals, Courts and Enforcement Act 2007 (co-operation in relation to judicial training, guidance and welfare) is amended as follows.(2) In subsection (4)(a) and (b), after “the Senior President of Tribunals” insert “or the President of Welsh Tribunals”.(3) In subsection (5)(c)—(a) omit “or” at the end of sub-paragraph (iii);(b) at the end insert “, or(v) a judge, or other member, of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals).””

    Amendment 119M (in substitution for Amendment 119L) agreed.

    Amendments 119N and 119P

    Moved by

  • 119N: Schedule 5, page 119, line 16, at end insert—

    “Welsh Language (Wales) Measure 2011 (nawm 1)

    82A In the Welsh Language (Wales) Measure 2011 omit section 124 (practice directions).”

    119P: Schedule 5, page 119, line 24, at end insert—

    “The Special Educational Needs Tribunal for Wales Regulations 2012 (S.I. 2012/ 322 (W.53))

    83AA In the Special Educational Needs Tribunal for Wales Regulations 2012 omit regulation 28 (general powers).”

    Amendments 119N and 119P agreed.

    Schedule 5, as amended, agreed.

    Clause 54 agreed.

    Schedule 6 agreed.

    Clause 55: Commencement

    Amendment 120

    Tabled by

  • 120: Clause 55, page 43, line 32, at end insert—

    “(1A) Subsections (2) to (7) are subject to subsection (1B).(1B) The following provisions may not come into force until the Welsh Assembly has passed a legislative consent motion in respect of this Act—(a) sections 1 to 52,(b) section 53(1), and(c) Schedules 1 to 5.”

  • My Lords, I hope that the Minister will give an assurance that a Treasury Minister will write to me specifically answering the points that I made earlier. On that basis, I will not move the amendment.

  • Amendment 120 not moved.

    Amendment 120A not moved.

    Amendment 121

    Moved by

  • 121: Clause 55, page 43, line 39, at end insert—

    “(e) section 41, and sections 37(4) and (6) and 40(4) for the purposes of section 41.”

    Amendment 121 agreed.

    Clause 55, as amended, agreed.

    Clause 56 agreed.

    In the Title

    Amendment 122

    Moved by

  • 122: In the Title, line 2, after “Ministers” insert “and about Welsh tribunals”

    Amendment 122 agreed.

    Title, as amended, agreed.

    House resumed.

    Bill reported with amendments.

    Intellectual Property (Unjustified Threats) Bill [HL]

    Report

    Moved by

  • That the Report be now received.

  • My Lords, I start by saying how pleased I am to bring this Bill to the Floor of the House for the first time. The reforms contained in it support business in driving economic growth and they will help the Government deliver their manifesto commitment to make the UK the best place in Europe to innovate, patent new ideas and set up and expand a business. The Bill’s provisions will make the intellectual property system more easily navigable for rights holders and third parties alike. It will help ensure that rights holders can enforce their IP rights fairly, while preventing the misuse of threats to sue for infringement as a way to distort competition.

    As noble Lords will be aware, the detailed recommendations for reform in this area were made by the Law Commission, and I thank it warmly for its thorough and detailed approach to this project, including extensive stakeholder consultation, which has brought the Bill to this House in such good shape.

    The Bill has a narrow scope and follows the special Bill procedure available for uncontroversial Law Commission reforms. This procedure included a number of very informative evidence sessions during Committee. I take this opportunity to thank the chair of the Special Public Bill Committee, the noble and learned Lord, Lord Saville of Newdigate, who is unable to be in his seat today, and colleagues on the committee, several of whom are here this evening, for their time and efforts in considering the Bill thus far. Our discussions have been productive and helpful.

    The first group of amendments addresses concerns raised by both stakeholders and members of the committee. I believe that they improve the clarity of the provisions, which is a key aim of the Bill as a whole. The first of the amendments would delete “solely” from new Section 70B(1)(a), and the equivalent sections for the other rights. The Law Society has long pushed for this amendment. Both CIPA and the IP Federation also agreed, at the evidence stage, that the term should be removed. I thank the noble Baroness, Lady Bowles, for raising this point during Committee and for emphasising its importance to stakeholders. The intent of the person sending a communication is not relevant in determining whether that communication is “permitted”. This has always been our position and the amendment makes it even clearer.

    The second family of amendments in this group also relates to the permitted communications provisions. A common complaint is that, under the existing threats law, there is no guidance on what type of communication is allowed and what is not. It is therefore easy for rights holders inadvertently to fall foul of the threats provisions.

    The subsections in issue provide guidance on what types of information are necessary for a permitted communication by providing a list of examples. However, it has become apparent that these subsections are not as clear as they should be. The amendments make it clear that the examples will always be considered necessary for a permitted purpose. A rights holder who wishes to make a permitted communication may confidently provide the types of information listed. The list is also clearly non-exclusive, so appropriate flexibility is provided.

    The next amendment addresses an issue raised by the noble Viscount, Lord Hanworth, in Committee. The issue relates to what he termed a “piece of illogic” in new Section 70C(4) and equivalents regarding the reference to “T”, curiously used to refer to the person who made the threat. To solve this problem, we have simply opted to remove the reference altogether and substitute it with a reference to the person, which, given its context, clearly means the person who made the threat.

    Finally, I come to the fourth set of amendments in this group. These seek to amend new Section 70E and equivalents to clarify the position in relation to pending rights, particularly with reference to the justification defence available to the rights holder. As the noble Baroness, Lady Bowles, highlighted in Committee, expert stakeholders have concerns with the current drafting on this point. This family of amendments—a term that the noble Baroness kindly invented in Committee—addresses these concerns by stating explicitly that the question of whether there has been an infringement will be determined on the basis of the IP right once it has been registered or granted. I hope that this deals neatly with the comments from the noble Baroness, Lady Bowles, on this issue.

  • Report received.

    Clause 1: Patents

    Amendment 1

    Moved by

  • 1: Clause 1, page 2, line 30, leave out “solely”

  • My Lords, I beg to move.

  • My Lords, perhaps I may take this opportunity to say on behalf of my noble and learned friend Lord Saville of Newdigate, who chaired the Special Public Bill Committee, how much he regrets that he is not able to be present at this stage of the Bill. He has authorised me to say that he, having read all the amendments, fully supports them. The fact that they have been brought before the House in this way indicates the hard work that the committee did, and the Bill will no doubt be greatly improved by their being moved.

  • My Lords, we had some extraordinary things on this committee: a Saville committee that ran to time and a Minister who listened, took her conclusions back to her department and the Law Commission, and achieved a most satisfactory series of amendments. That is an achievement that ranks with the dervishes breaking a British square. That the Law Commission should have given in to suggestions from the House of Lords really shows what a fine Minister we have and what a fine job she has done on this Bill. All of us who sat through the committee—who thought we might be doing it all to achieve nothing—are enormously grateful to her.

  • My Lords, I also thank the Minister and must declare my interests as a retired chartered and European patent attorney, former fellow of the Chartered Institute of Patent Attorneys and former representative before the European Patent Office and European Union Intellectual Property Office; and that my husband has residual income from our former practice, and that we are proprietors of a registered trademark. That all means that I have had to send and receive the sort of correspondence that the Bill is all about.

    The Minister has proposed amendments in this group and elsewhere that touch on most of the points on which I tabled amendments and spoke in Committee. The only points not touched on at all concern the proposed new section defining actionable threats, and I have not tabled similar amendments again, as these were perhaps overly substantive for this stage of a Law Commission Bill. That is a pity but, nevertheless, I have had the opportunity to elaborate on those points in Committee for the public record, and people can take note of what will remain problems.

    With regard to Amendments 1, 2 and 4 for patents and the corresponding changes to the clauses for trademarks and designs, I agree that the deletion of “solely”, and clarifying the examples, make the safe harbour that is intended for permitted communications clearer and the accidental triggering of threats provisions less likely. I need say no more on that. I am grateful for the other drafting amendments on numbering and with reference to pending rights, which I raised.

  • My Lords, I am sure we will find when we examine the fine print that there is probably a prohibition in the Companion on making the sorts of speeches we have been hearing. That makes me even more determined to make them. It is right that we should record that the special procedures we went through for the Bill, although recognisably a labour—no pun intended—have generated a very successful outcome. I join others in congratulating our chair, the noble and learned Lord, Lord Saville of Newdigate, who got us through some interesting and tricky evidence sessions with great expediency and, as was said, on time.

    I also congratulate the Minister, who I recall making her first appearance at the Dispatch Box on an intellectual property Bill—“flustered” is perhaps too strong a word, but it certainly was not her natural habitat. But the feathers have grown and the plumage has become much more sleek and groomed, and now we have somebody who is fully equipped to deal with all matters of intellectual property. As has been said, those of us who have been involved with intellectual property Bills before have had not much success in getting changes, but she has come back with a raft of improvements to the Bill. Against the Law Commission, as has been said, you can say no finer than that.

    It was a pleasure having an expert member on the committee, the noble Baroness, Lady Bowles of Berkhamsted. It is always a bit of a worry when you see somebody on a committee who knows a lot about the subject, because you think they may dominate it. She was indeed very powerful in her contributions, but they were to a point and finely judged. We all learned and benefited from that.

    We have done extremely well, and the Minister has achieved a great deal and kept us informed. We had a letter only this week explaining what the proposals were and how they fitted into her thinking, and I am happy to support them.

  • My Lords, I thank the noble and learned Lord, Lord Hope of Craighead, my noble friend Lord Lucas, the noble Baroness, Lady Bowles, and the noble Lord, Lord Stevenson of Balmacara, for their kind and constructive comments. As the noble Lord, Lord Stevenson, said, we all learned a lot. These provisions are indeed an improvement.

  • Amendment 1 agreed.

    Amendment 2

    Moved by

  • 2: Clause 1, page 2, line 33, after “subsection (5)” insert “(a) to (c) for some examples of necessary information”

    Amendment 2 agreed.

    Amendment 3

    Moved by

  • 3: Clause 1, page 2, line 45, leave out “it necessary” and insert “that it is”

  • My Lords, this group of amendments seeks to address concerns raised in Committee about the practical application of the new threats provisions. These changes amend the discretion afforded to judges in applying the new permitted communication provisions and improve the ability to access the defences available. Both these changes particularly help to address concerns expressed about the challenges of working in an online trading environment.

    I turn first to Amendment 3 and its family. The provisions as drafted allow that the courts may treat another, additional purpose as a permitted purpose if that is necessary in the interests of justice. I have now had the opportunity to consider the arguments put forward by the noble Baroness, Lady Bowles, and to reflect further on the evidence given by Mr Justice Birss, Professor Sir Robin Jacob and others to the Special Public Bill Committee regarding the extent of the judges’ discretion in this area. By removing the word “necessary”, these amendments provide additional flexibility to the courts when considering whether a particular communication was made for a permitted purpose. The provisions still give clarity and certainty for those using the system, which is a key requirement for all stakeholders.

    The wider discretion afforded to the courts under this amendment allows them to add to the list of permitted communications when appropriate. This would include treating the use of an online form as permitted, if that is suitable in the particular circumstances. This amendment, therefore, helps to address concerns raised about the use of particular online forms.

    The next family of amendments relates to the defence available to rights holders, whereby they are allowed to send a threat to a trader, or other secondary actor, who is not the source of the alleged infringement, if a search for the primary actor has been unsuccessful. The amendments deal with two issues discussed in Committee. First, there was a concern that the bar was set too high to access the defence, and, secondly, that this was particularly problematic for rights holders dealing with potential infringements in an online trading environment. Under the current patents law, the test is that the rights holder must have used “best endeavours” to find the source, but failed. During the Law Commission’s work, the “best endeavours” requirement was the subject of much criticism. As a result, the phrase “all reasonable steps” was used in the Bill. However, in evidence taken by the Special Public Bill Committee, this phrasing was also described as being too onerous.

    As the BBC explained in its evidence, in the face of high-volume, low-value online infringements, the requirement to use “all reasonable steps” would be disproportionate and burdensome. It was therefore suggested that the word “all” should be left out. Compelling arguments were also put forward also by the committee’s distinguished chairman, the noble and learned Lord, Lord Saville, the noble Viscount, Lord Hanworth, and the noble Baroness, Lady Bowles. On reflection, I agree that “all reasonable steps” does place the bar too high. The amendment would instead require the rights holder to simply take “reasonable steps” to find the source of the infringement. What is reasonable will depend on the circumstances. The assessment can take account of what it is reasonable for the rights holder to do in an online environment, and what is reasonable in the economic circumstances of the case.

    There is a balance here. We need to ensure that we restrict potentially damaging unjustified threats but also that rights holders can take action to tackle infringement online when they need to. I beg to move.

  • My Lords, after being on the committee entrusted by the House with scrutiny of this Bill, I am only too fully aware of what a complex area of law intellectual property is—it is crucial that we get it right. We must ensure that we create a climate as positive as any in the world for businesses to innovate and grow, especially after we leave the European Union.

    I thank the Minister for her clear thinking and her ability to make me understand exactly what was going on. I thought when I started that I would never get to the end of it all. However, it was quite amazing: with her experience as a fine civil servant who then transferred over to work in the wild business world, she came back with all kinds of straightforward thinking that I could understand and comply with.

    I am confident that the Bill will make a valuable contribution to achieving this goal. It will make it easier for businesses to make legitimate threats to protect their intellectual property and for those businesses subject to unjustified threats to protect themselves. I am particularly glad that the Bill will harmonise the law across different types of intellectual property and make it simpler and cheaper for businesses, especially small businesses, which can often be the most intimidated by threats, to seek legal advice and negotiate before there is a need to involve the courts. The greater clarity created by the new category of permitted communications is most welcome in this regard. The Bill is therefore a significant improvement on the current law and has the potential to make a real difference for businesses in practice.

    As a former small business owner who has been subject to threats to sue for intellectual property infringement, a consumer protection representative and a Minister for Intellectual Property, I also understand, however, quite how impenetrable intellectual property law can be for businesses. This is especially the case for small and medium-sized enterprises, which often struggle to understand complex legal points and are least able to afford expert legal advice when they encounter difficulties.

    When I was running my small business, I was once contacted by a well-known company in the same industry alleging that I had fringed its intellectual property rights. It turned out that it did not have a leg to stand on from a legal point of view. Nevertheless, the whole episode still caused me and my business a great deal of disruption. While I recognise that I would have been a primary actor for the purposes of this Bill, and therefore not protected by the threats provision, I empathise wholeheartedly with those businesses for whom these are crucial protections but for whom intellectual property law is incredibly hard to understand.

    For this reason, getting the legislation right is only half of the battle. Just as important—perhaps even more so—is how we seek to ensure that businesses understand what is in the Bill and how it helps them in practical terms. If we do not do this properly, we might as well not pass the Bill at all.

    While I know from my time as a Minister that the Intellectual Property Office works hard to help businesses understand intellectual property, it needs to ensure that it keeps improving its efforts in this area. It would be unacceptable and a tragedy if even one start-up or SME capitulated to an unjustified threat to sue for intellectual property infringement out of a lack of awareness of the provisions of the Bill once enacted.

    I was grateful to the Minister for her comments in Committee on how the Government intend to proceed to make sure that the provisions of the Bill are communicated to business, especially SMEs, so that it has the positive impact in practice that it ought to. However, this is one of things about which we cannot ever have too much information or too many reassurances. I therefore continue to press the Minister to assist the House and businesses with further reassurances, wherever she can, on this matter.

  • My Lords, I am sure the noble and learned Lord, Lord Saville of Newdigate, would wish me to thank the Minister for moving these amendments.

    Two simple words are on the paper in front of us—“necessary” and “or”—but they are constraining words and to remove them from the Bill is a significant step to take. I am particularly interested in the extent to which the noble Baroness is prepared to increase the width of the discretion given to the judges. I can think of many cases where Acts of Parliament have sought to restrict the discretion of the judges because they were not trusted. However, in the area of intellectual property, the cases that come before the courts are in the hands of expert judges and I am sure that taking out the word “necessary” and giving them greater discretion is entirely justified and greatly improves the nature of the legislation under consideration.

    I join the noble and learned Lord, Lord Saville, in thanking the Minister for taking this step.

  • My Lords, I again thank the Minister for these amendments. I welcome that “necessary” has been removed from the judge’s discretion provision by way of Amendment 3 and its family of amendments. It was a feature of our discussions with witnesses and in Committee that the court’s ability to exercise discretion was important and that the flavour should be that the judge can do what is reasonable in all the circumstances. This is reflected in the simple words “in the interests of justice” without what might have been an unusually high or inflexible hurdle of “necessary”.

    On Amendment 6 and its corresponding family, we had significant discussion during evidence sessions relating to the status of take-down notices that are sent to digital platforms and then by the platforms on to vendors. Case law had left a bit of a limbo as to whether these are threats and, if they are, whether the defence that “all reasonable steps” have been taken to find the primary infringer is too high a hurdle, especially in the digital environment, where vendors may be in remote places and it is effectively impossible to trace who may truly be the primary infringer and the customers is, in effect, the importer. Did every lead have to be pursued or, if not, how many?

    There is some assistance through the Minister’s amendment that deletes “all”. This makes the defence, if it is needed, a little easier, and the word “reasonable” still retains aspects of proportionality, so the test has not been made too light in other circumstances and can adapt.

    However, the amendment does not solve the lacuna of whether a take-down notice is or is not a threat, with two interim judgments—Quads 4 Kids and then Cassie Creations—indicating it was an arguable point but not deciding. This is left, as I said, in limbo.

    This is a substantive point—again, too substantive for this stage of a Law Commission Bill—and there is an opportunity to pursue issues relating to digital platforms in the Digital Economy Bill. On these Benches, we are interested in doing that for the status of take-down notices, among other things. I know the Minister can give no promises now but at least it, and how it originated, will be no surprise when the issue returns.

  • My Lords, I want briefly to follow the noble and learned Lord, Lord Hope—my noble and learned kinsman—in expressing my thanks for the way in which these points have been taken, but perhaps I may add a little a gloss to what he said. The way he expressed it was that this is going to aid the generic judge in doing their job more efficiently than would otherwise be the case. However, it is worth recalling that the discussion we had in Committee on this—it was prompted by the evidence we received—turned on the fact that this is quite a key point in trying to perceive within the Bill the evolutionary steps that the Law Commission said existed, as this Bill provides a route forward from where we were in previous times to where we might be in the future in the possibility of establishing a more general tort in relation to business ethics and business behaviour, of which it is arguable that unjustified threats are a very unjustifiable part of the business environment. I know that the Minister shares my thinking on this and I agree with her that this is not the Bill in which to take these issues forward, but I think we both hope that there will be an opportunity to come back to this issue in some future legislation.

    The point is an important one. If we see this piece of legislation as a step on a journey towards an alignment that is closer than is currently the case with the Paris convention 1883, we will be in a more satisfactory place to understand and perhaps plan forwards on how these things might happen. Whether that should be in the Digital Economy Bill which is soon to arrive with us, we do not know, because it is not being dealt with in the Minister’s department any more. However, I am sure that she will take a close interest in it, particularly if the words “intellectual property” are flashed around. I am sure that she will be like a moth to the flame coming back to support us. In the interim, we support these amendments.

  • My Lords, I am grateful to the noble and learned Lord, Lord Hope of Craighead, and to the noble Baroness, Lady Bowles, for the welcome they have given to the extension of sensible judicial discretion through these amendments. I also warmly thank my noble friend Lady Wilcox for her very kind words and for her strong support for the Bill, particularly from the perspective of someone who has experienced threats as a small business person. She rightly highlighted the importance of providing appropriate guidance and she may be aware that we have already published some guidance to business. The IPO has got up early in terms of what the reforms could mean in practice. I have copies of the guidance if any noble Lord would like one.

    In our debate in Committee I happily committed to communicating to businesses the changes and benefits being brought by the introduction of this Bill. They will form an important part of the IPO’s work and its outreach programme. I know that my noble friend is keen to learn what this would mean in reality so I can say that the IPO will go the extra mile for SMEs. It will update its popular online tools, publish guidance, add information on the new threats provisions to the range of IP educational materials as appropriate and include presentations about these changes at its outreach events, many of which are of course aimed at SMEs. It will also update businesses via social media channels and signpost users to the relevant guidance. It is crucial that the material produced is clear and accessible, and the IPO will road-test the guidance in draft with small business representatives to ensure that it is understandable. These changes will be communicated direct to SMEs by the IPO as well as by others who provide advice and support to small businesses, which is equally important. The IPO will work with representative bodies to ensure that their members are aware of the reforms. Emails will be sent to those stakeholders who have signed up to receive updates, which will ensure that sources of IP advice such as the patent library network, growth hubs and professional IP advisers are best able to help our SMEs.

    The noble Baroness, Lady Bowles, repeated some of the concerns that we discussed at length in Committee. I continue to believe that to include online notifications automatically as a permitted purpose would completely undermine the protection from threats which is at the heart of these provisions. It cannot be right that retailers and others lose all protection from threats simply because those threats are made via a particular medium, in this case online. As I have said, submitting an online form normally results in a listing being taken down, so making online forms permitted would not encourage parties in dispute to talk first since the rights holder could, justifiably or not, prevent at a stroke any further trade in an item. The amendments proposed address the issues in the most appropriate way. The wider discretion that we have given to the courts, which I started with, is useful because it allows the law to evolve as, for example, technology moves on so that over time it can be applied in a clear, fair and appropriate way. In addition we have made defences more readily available to rights holders who need to approach a secondary action.

    The noble Baroness and the noble Lord, Lord Stevenson, talked about online and reference was made to the Digital Economy Bill, which all being well will come before this House on 13 December. We have two amendments today to improve the online situation and I feel that we have addressed the concerns raised in Committee and by the BBC. The amended clauses should therefore be allowed to run. Further, it is only fair to say that we do not have any plans to revisit the issue in the Digital Economy Bill when it comes to this House.

    We have made some significant changes to the Bill in response to the concerns that were well expressed in Committee and I hope that noble Lords will feel able to support the amendments before them.

  • Amendment 3 agreed.

    Amendments 4 to 8

    Moved by

  • 4: Clause 1, page 3, leave out lines 6 and 7 and insert “If any of the following information is included in a communication made for a permitted purpose, it is information that is “necessary for that purpose” (see subsection (1)(b)(i))—”

    5: Clause 1, page 3, line 29, leave out “(T)”

    6: Clause 1, page 3, line 30, leave out “all”

    7: Clause 1, page 3, line 30, leave out “T” and insert “the person”

    8: Clause 1, page 3, line 34, leave out “T” and insert “the person”

    Amendments 4 to 8 agreed.

    Amendment 9

    Moved by

  • 9: Clause 1, page 4, line 6, after “the” insert “specific”

  • My Lords, I am grateful to the noble Baroness, Lady Bowles of Berkhamsted, for joining me in tabling this amendment and its parallel amendments in later parts of the Bill. I am sure that the Minister, when she comes to respond, will point out that, as phrased, the amendment does not achieve what I hope to draw out from her in the discussion. In that sense it is a probing amendment, which is probably inappropriate, but nevertheless it was the only way we could think of to get this thing up at this stage.

    As the Minister said in Committee, the tactic of suing a professional adviser for making a threat has been used to disrupt negotiations and hamper legitimate client-adviser relationships. A professional adviser should not have to become personally involved in a threats action when they act only on behalf of their client. I accept that the Bill as drafted restricts the protection available to professional advisers to those who are regulated by a statutory regulatory body or entitled to legal professional privilege, but we already have in the Bill provisions under which the professional adviser may rely on the safe harbour provisions to avoid personal liability. Maybe there are other ways that other safeguards could be built into the Bill, such as when it is clear that the threat is speculative and when the principal and the adviser are clearly adopting a game of bluff with the alleged infringer, and so should, by rights, be at risk. I would certainly be happy to engage in discussions with the IPO and the Minister on this point if there was willingness to take it further.

    I accept that exempting professional advisers from the threats provision has long been called for and that it would help stop game playing. However, to my mind this is a step too far. The Bill delivers an exemption that provides for the first time in English law that an agent would not be liable for following the specific instructions of his or her principal. I beg to move.

  • My Lords, I tabled the amendment with the noble Lord, Lord Stevenson. I have a few additional comments that bear some relationship to what the effect of the word “specific” would be in this position.

    The fact that advisers could themselves be liable has been, at least in some circumstances, a gatekeeper to check on the appropriateness of communications concerning infringement of intellectual property rights. It has also created other problems, hence the exemption that has been put forward in the Bill. We took evidence to establish that at least in the UK there are disciplinary provisions for wayward professionals, which assists in that gatekeeping, but here we are exempting advisers worldwide. I remain a little concerned as to whether the definition of “exempted adviser” is too widely drawn, but it seemed that there was another way to ensure some element of the gatekeeping is there to make sure the instructions to the adviser are specific.

    An adviser overstepping the mark or not warning their client of the consequences of an unjustified threat could well be on the receiving end of a negligence action, but it is a bit grey as to what that instruction might need to be. Could it be a blanket instruction to “go get ‘em”, or to be trigger-happy without discussion about a whole portfolio of rights? The amendment aims to make it clear that specific, conscious instructions are needed, and that due care and attention to that takes place whoever and wherever the adviser may be. It also carries with it the flavour—this needs to be said and recorded—that the exempting of advisers is a particular exemption, not a “get out of jail free” card. Care still has to be taken over the composition and sending of letters or notices that allege infringement.

  • My Lords, I am fairly new to this argument as unfortunately I was not able to be present as a member of the committee. Judges faced with the nature of this clause, in looking at the word “instructions”, would give the word a purposive meaning and would tend to look for a specific instruction as a necessary condition even if the words were not expressed in the Bill. For the avoidance of doubt, I respectfully suggest that the amendment moved by my noble kinsman has great force behind it. One would want to put the matter beyond doubt. For what it is worth, I support the amendment.

  • My Lords, I understand that this is an area of concern. I welcome the amendments from the noble Lord, Lord Stevenson, and the noble Baroness, Lady Bowles. I very much appreciate the noble Lord’s constructive approach to the Bill and his commitment to careful scrutiny. I think he said the amendment was probing in nature. I will start by setting out why I remain convinced that the exemption for professional advisers is so necessary, before talking about the specific amendment.

    The Law Commission’s consultation demonstrated that the tactic of suing a professional adviser for making a threat has been used to hamper the legitimate client-adviser relationship. This causes problems not only for the adviser but for the client, who may as a result need to find a new adviser. I believe we heard convincingly during the evidence stages that this is a significant and common issue. It leaves rights holders in the position of having to pay indemnities before a legal adviser will write an entirely justified letter on their behalf. SMEs are more likely to be asked for such indemnities and are most affected by them.

    I am aware that there were concerns regarding such an exemption, which might give rise to an increase in the use of unscrupulous threats. However, I do not agree for the following reasons. Where the professional adviser is exempt, the instructing client will remain liable. This ensures that recourse is available to those damaged by threats. A legal adviser who advises their client badly, leaving them liable for threats, risks a negligence action. The exemption does not prevent this. The exemption has been carefully and appropriately limited in its availability. The amendment would restrict the protection available for professional advisers to just those who are acting on “specific” instructions from another person.

    In an increasingly global market—that was mentioned —we need to capture the many different types of foreign and domestic IP legal practitioner who may risk facing a threats action under UK law. As discussed in Committee, this should clearly include those in private practice as well as “in-house” advisers. For that reason, I do not agree that the exemption principle should apply only to the very limited category of circumstances envisaged by the amendment.

    In practice, instructions come in all shapes and forms, written and oral. It is therefore unclear what would be required in order to demonstrate that an adviser was acting on a “specific” instruction. Such lack of clarity about “specific” instructions would be particularly problematic for in-house legal advisers, who are often acting on a general mandate to protect their company’s IP rights. The Law Commission agrees that the amendment risks leaving in-house advisers without protection. I apologise to the noble Lord, Lord Stevenson: I think that that is the response that he was expecting in relation to the amendment.

  • Stakeholders such as the BBC are keen that the exemption properly applies to in-house advisers for just these reasons, but the noble Lord will recall that we have agreed to update the Explanatory Notes to the Bill to reflect the fact that such advisers are covered so as to further reassure stakeholders.

    The solution provided by the Bill seems much clearer and more certain than trying to capture the concept of bluffing and so on. I can understand why some concerns have been expressed, but, in the light of the background I have set out as to why we have drafted the provision in the way that we have and the need for clarity, I hope that the noble Lord will feel able to withdraw the amendment.

  • I thank those noble Lords who contributed this short debate. It is right that we recognise that there are particularities in relation to in-house lawyers and I take the point made by the Minister that the exemption would be particularly useful for them. It does not get round the fact that this could easily be the thin end of the wedge. While that should not detract from the specifics of what we are discussing today, it would be odd if a very small part of a very small part of the law—while I in no sense diminish the contribution made by this Bill to the greater good—was to be adapted to allow this exemption, which then spread.

  • It may be clearer if I make one final point. My understanding is that the underlying law on agent liability is left undisturbed, so no precedent is being set here for other areas of law which concern agent-client relationships. I recall that being a concern expressed by the noble Lord, so perhaps my making that clear to the House will help him in agreeing to withdraw the amendment.

  • Yes. The Minister anticipated exactly what I was going to say. We were all looking for some words of reassurance so that those who had to interpret the provisions later would be better informed. We have not had the chance to see the Explanatory Memorandum in that regard. Perhaps we could receive that in correspondence before the final stages of the Bill, so that I might be more satisfied. On that basis, I am happy to withdraw the amendment.

  • Amendment 9 withdrawn.

    Amendments 10 to 12

    Moved by

  • 10: Clause 1, page 4, line 16, leave out “to 70C” and insert “and 70B”

    11: Clause 1, page 4, line 16, after “include” insert “references to”

    12: Clause 1, page 4, line 17, at end insert—

    “(2) Where the threat of infringement proceedings is made after an application has been published (but before grant) the reference in section 70C(3) to “the patent” is to be treated as a reference to the patent as granted in pursuance of that application.”

    Amendments 10 to 12 agreed.

    Clause 2: Trade marks

    Amendments 13 to 20

    Moved by

  • 13: Clause 2, page 6, line 11, leave out “solely”

    14: Clause 2, page 6, line 14, after “subsection (5)” insert “(a) to (c) for some examples of necessary information”

    15: Clause 2, page 6, line 28, leave out “it necessary” and insert “that it is”

    16: Clause 2, page 6, leave out lines 35 and 36 and insert “If any of the following information is included in a communication made for a permitted purpose, it is information that is “necessary for that purpose” (see subsection (1)(b)(i))—”

    17: Clause 2, page 7, line 11, leave out “(T)”

    18: Clause 2, page 7, line 12, leave out “all”

    19: Clause 2, page 7, line 12, leave out “T” and insert “the person”

    20: Clause 2, page 7, line 16, leave out “T” and insert “the person”

    Amendments 13 to 20 agreed.

    Amendment 21 not moved.

    Amendments 22 and 23

    Moved by

  • 22: Clause 2, page 7, line 44, leave out “to 21C” and insert “and 21B”

    23: Clause 2, page 7, line 46, at end insert—

    “(2) Where the threat of infringement proceedings is made after an application for registration has been published (but before registration) the reference in section 21C(2) to “the registered trade mark” is to be treated as a reference to the trade mark registered in pursuance of that application.”

    Amendments 22 and 23 agreed.

    Clause 3: European Union trade marks

    Amendments 24 to 27

    Moved by

  • 24: Clause 3, page 8, line 20, leave out “to 21C” and insert “and 21B”

    25: Clause 3, page 8, line 24, at end insert—

    “(1B) In the application of section 21C in relation to a European Union trade mark in a case where the threat of infringement proceedings is made after an application has been published (but before registration) the reference in section 21C(2) to “the registered trade mark” is to be treated as a reference to the European Union trade mark registered in pursuance of that application.”

    26: Clause 3, page 8, line 26, leave out “to 21C” and insert “and 21B”

    27: Clause 3, page 8, line 31, at end insert—

    “(3) In the application of section 21C in relation to an international trade mark (EC) in a case where the threat of infringement proceedings is made after particulars have been published (but before registration) the reference in section 21C(2) to “the registered trade mark” is to be treated as a reference to the international trade mark (EC) registered in pursuance of those particulars.”

    Amendments 24 to 27 agreed.

    Clause 4: Registered designs

    Amendments 28 to 35

    Moved by

  • 28: Clause 4, page 10, line 2, leave out “solely”

    29: Clause 4, page 10, line 5, after “subsection (5)” insert “(a) to (c) for some examples of necessary information”

    30: Clause 4, page 10, line 19, leave out “it necessary” and insert “that it is”

    31: Clause 4, page 10, leave out lines 28 and 29 and insert “If any of the following information is included in a communication made for a permitted purpose, it is information that is “necessary for that purpose” (see subsection (1)(b)(i))—”

    32: Clause 4, page 11, line 4, leave out “(T)”

    33: Clause 4, page 11, line 5, leave out “all”

    34: Clause 4, page 11, line 5, leave out “T” and insert “the person”

    35: Clause 4, page 11, line 9, leave out “T” and insert “the person”

    Amendments 28 to 35 agreed.

    Amendment 36 not moved.

    Amendments 37 and 38

    Moved by

  • 37: Clause 4, page 11, line 37, leave out “to 26C” and insert “and 26B”

    38: Clause 4, page 11, line 39, at end insert—

    “(2) Where the threat of infringement proceedings is made after an application for registration has been made (but before registration) the reference in section 26C(2) to “the registered design” is to be treated as a reference to the design registered in pursuance of that application.”

    Amendments 37 and 38 agreed.

    Clause 5: Design right

    Amendments 39 to 46

    Moved by

  • 39: Clause 5, page 13, line 13, leave out “solely”

    40: Clause 5, page 13, line 16, after “subsection (5)” insert “(a) to (c) for some examples of necessary information”

    41: Clause 5, page 13, line 29, leave out “it necessary” and insert “that it is”

    42: Clause 5, page 13, leave out lines 37 and 38 and insert “If any of the following information is included in a communication made for a permitted purpose, it is information that is “necessary for that purpose” (see subsection (1)(b)(i))—”

    43: Clause 5, page 14, line 11, leave out “(T)”

    44: Clause 5, page 14, line 12, leave out “all”

    45: Clause 5, page 14, line 12, leave out “T” and insert “the person”

    46: Clause 5, page 14, line 16, leave out “T” and insert “the person”

    Amendments 39 to 46 agreed.

    Amendment 47 not moved.

    Clause 6: Community design

    Amendments 48 to 55

    Moved by

  • 48: Clause 6, page 16, line 15, leave out “solely”

    49: Clause 6, page 16, line 18, after “paragraph (5)” insert “(a) to (c) for some examples of necessary information”

    50: Clause 6, page 16, line 31, leave out “it necessary” and insert “that it is”

    51: Clause 6, page 16, leave out lines 42 and 43 and insert “If any of the following information is included in a communication made for a permitted purpose, it is information that is “necessary for that purpose” (see paragraph (1)(b)(i))—”

    52: Clause 6, page 17, line 21, leave out “(T)”

    53: Clause 6, page 17, line 22, leave out “all”

    54: Clause 6, page 17, line 22, leave out “T” and insert “the person”

    55: Clause 6, page 17, line 26, leave out “T” and insert “the person”

    Amendments 48 to 55 agreed.

    Amendment 56 not moved.

    Amendments 57 and 58

    Moved by

  • 57: Clause 6, page 18, line 8, leave out “to 2C” and insert “and 2B”

    58: Clause 6, page 18, line 12, at end insert—

    “(2) Where the threat of infringement proceedings is made after an application for registration has been filed (but before registration) the reference in regulation 2C(2) to “the Community design” is to be treated as a reference to the design registered in pursuance of that application.”

    Amendments 57 and 58 agreed.

    House adjourned at 8.50 pm.