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Baroness Thornton: My Lords, I pay tribute to the noble Lord for his fantastic work in this area. I know that somebody called some amendments to the then Bill “the Williamson amendments”. We are committed to addressing the inappropriate use of adult wards for under-18 year-olds. We are carefully monitoring the use of adult wards and we are pleased to report that there have been significant decreases in recent times. However, until we can say that not one child or young adult has been put inappropriately into an adult ward, we will not have succeeded. We are on target for delivering this by April 2010. Investment is being made, and training provided, to ensure that the right facilities are provided that are age-appropriate for under-18 year-olds.

Baroness Tonge: My Lords, further to that point, we were first officially alerted to this scandal in 2003. In 2006, the then Minister, Ivan Lewis, promised that the problem would be solved by November 2008. We are now in 2008 and, following the report Pushed into the Shadows, commissioned by the Children’s Commissioner, we are promised that this will end by November 2010. How can we have any faith at all in what the Government say?

Baroness Thornton: My Lords, a great deal has been done to reduce the number, and I am very happy to provide the noble Baroness and the House with the figures for 2006-07, which show a dramatic increase. For example, in the first quarter of 2006-07, 75 under-16 year-olds were in adult wards, whereas in the first quarter of this year the number was 16, and that figure is going down. The same figures follow through for 16, 17 and 18 year-olds. However, we do not rest at that. The noble Baroness gave the date of November 2010 but that is not the case; it is April 2010. All health authorities have to inform social services by 3 November what appropriate facilities they have for under-18 year-olds. We will continue working to ensure that no under-18 year-olds are in inappropriate facilities by 2010.

Lord Campbell of Alloway: My Lords, apart from words, what is proposed to protect these children? There is a long history of sad neglect.

Baroness Thornton: My Lords, I hope that I have already told the House that we are absolutely committed to dealing with this matter and that a great deal of action has been taken. For example, something like 70 to 80 new places have been created for these children over the past few months. A great deal of investment is going into this problem and we are determined to solve it.

Baroness Howarth of Breckland: My Lords, I am grateful to the noble Baroness for giving us the number of places. Can she tell us how many children have been inappropriately accommodated, and how many children have been “appropriately accommodated”—so called—and what the definition for that happens to be?

Baroness Thornton: My Lords, I have already mentioned some figures which show that the number of children below the age of 18 in adult wards has come down. Some of those on the cusp of 18 will not

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be inappropriately allocated—some young people are in the right place, but none of the others is. I do not have the figures but I will endeavour to let the noble Baroness know how many places are available within that total.

The Lord Bishop of Southwell and Nottingham: My Lords, in providing the necessary resources for these welcome changes, will the Minister bear in mind the statement in chapter 36, paragraph 74 of the Mental Health Act code of practice about,

children and young people, together with facilities for visits from parents, carers, siblings and guardians?

Baroness Thornton: My Lords, the right reverend Prelate makes a very important point. We want children and young people to be treated as children and young people in the right kind of environment and for them to have access to age-appropriate leisure activities and visiting facilities to enable them to remain in contact with their parents and friends. We expect hospitals to take action to ensure that this objective is achieved for all under-18 year-olds.

Baroness Neuberger: My Lords, given that the NHS now has responsibility for healthcare in prisons, can the Minister tell the House the extent to which age-appropriate services are provided for children and young people in secure training centres and young offender institutions? There are worrying rumours of services being deeply inappropriate for these very distressed young people.

Baroness Thornton: My Lords, the noble Baroness makes a very good point. A number of young people with severe mental problems are indeed being admitted to custody and young offender institutions, for example. I know that the staff there spend a great deal of time working with them and attempting to ensure that they are transferred to age-appropriate environments. I do not have the figures, but I will let the noble Baroness have them. However, I know that that is what is happening in those institutions.


3.24 pm

Lord Greaves asked Her Majesty’s Government:

Lord Brett: My Lords, the Government are introducing the tough, new Australian-style points-based system so that the UK gets only the people it needs, and no more. We have the flexibility to alter the thresholds and are taking expert independent advice on where our economy needs migration. We also take into account the impacts on public services and communities.

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Lord Greaves: My Lords, I thank the Minister for that response, but I remind him that when the Minister, Mr Woolas, was asked on the Radio 4 “Today” programme if he stood by his assurance that the Government will not let the population rise to 70 million or more, he answered rather more directly. He said, “Yes”. Given that population levels over decades depend on birth and death rates, and rates of migration in and out over that period, and that the Government have no direct control over any of those—except in some circumstances—will the Minister advise all of his government colleagues that they really ought not to go on the media making populist announcements about such things? It only makes them look foolish.

Lord Brett: My Lords, for a clearer understanding of government policy and intentions in this area, I commend to the noble Lord a perusal of the debate on immigration controls held in another place on 21 October. I do so because, whether it is a half-page article that can be edited or, indeed, a two or three-minute question-and-answer session on Radio 4, a well debated three-and-a-quarter hour endeavour on the same subject in another place will be quite clear on the Government’s position and will, indeed, help to answer the noble Lord’s question.

Lord Lawson of Blaby: My Lords—

Lord Tomlinson: My Lords—

The Minister of State, Department of Energy and Climate Change & Department for Environment, Food and Rural Affairs (Lord Hunt of Kings Heath): My Lords, shall we let the Labour Benches go first, and then the noble Lord, Lord Lawson?

Lord Tomlinson: My Lords, will my noble friend concentrate on what is at the heart of immigration policy, and say what is happening with the new UK Border Agency in securing the borders of the United Kingdom? That, surely, is the fundamental question.

Lord Brett: My Lords, I thank my noble friend for that question and, recognising the remonstration to be brief, I will splatter your Lordships with statistics. Since 3 April, 700 dangerous weapons including firearms, stun guns and knives have been prevented reaching the streets; 12,000 individual attempts to cross the Channel illegally have been prevented; 248 foreign criminals coming to the UK have been refused entry or arrested; a search of half a million vehicles has taken place, looking for illegal migrants; and illegal drugs worth £172 million, plus 1,000 forged documents and 465 million cigarettes worth perhaps £87 million have been seized. The list goes on: it is a success.

Lord Lawson of Blaby: My Lords, while I welcome the noble Lord as a refreshing addition to the ministerial Benches in this House, will he in return welcome the relatively recent report on immigration by the Economic Affairs Select Committee of this House, instead of giving it the brush-off that it had when originally published? It made precisely the same point that Mr Woolas has refreshingly made.

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Lord Brett: My Lords, I fear that there may be something less than totally complimentary in the term “refreshing”, but I will take it in the spirit that I intend it to mean. First, I do not think that demeaning is the right term: there was a helpful contribution to the difficult and ongoing debate about how we deal with legal migration and illegal or clandestine migration. Your Lordships have, as ever, made a valuable contribution that will be part of the debate taking place. It is, of course, part of the reasoning taking us into the new five-tier system that replaces a much more complicated one. It is fairer on migrants and on the country.

Baroness McIntosh of Hudnall: My Lords, what has been the impact of on-the-spot fines imposed on employers found to have employed illegal immigrants?

Lord Brett: My Lords, in my previous life as a trade union leader I was certainly concerned about the exploitation of illegal workers. The Government’s new initiative has resulted in—if I can find it, for Ministers have to learn the task of paper juggling. That is obviously beyond me for the time being, but I will find it. It is a success in terms of the amount of money raised, if I could find that, but I cannot. I think that it is some £850,000 in fines: I will find that and come back on it. If somebody asks another question, I will try and find a way of putting this answer into the next one.

Lord Avebury: My Lords—

Lord Pearson of Rannoch: My Lords—

Lord Hunt of Kings Heath: My Lords, shall we hear from the noble Lord, Lord Avebury?

Lord Avebury: My Lords, as Mr Woolas obtained the figure of 70 million from a population trends projection published in 2006, would that figure not have to be reduced sharply to take into consideration the reduction in the number of people arriving from EU accession countries and the number of asylum seekers coming to the UK? Before the Minister makes any claims about the likely benefits of the points-based system, would he not agree that the catastrophic rise in unemployment that is likely over the next 12 months is more likely to act as a disincentive to people arriving here to work than any changes in the immigration system?

Lord Brett: My Lords, taking the latter point first, it must be the case that the attraction of the United Kingdom for prospective migrants will diminish if the economy provides fewer employment opportunities. I doubt that many people from whatever part of Europe, or beyond, are coming to Britain for the weather. I agree entirely that those issues will be a reducing factor. At the moment, our unemployment register has too many members, because we want full employment, among whom some 8 per cent are from the migrant workforce. There has not been a disproportionate effect so far, but it is important that we put in hand timely endeavours to control the immigration factor as we go into difficult times. By sheer coincidence—and on the basis of my previous excuse—I can tell the House that 850 fines, worth some £8 million, have been issued since 29 February 2008 to employers of illegal workers.

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Bank of England (Amendment) Bill [HL]

3.31 pm

Lord Saatchi: My Lords, I beg to introduce a Bill to amend the objectives of the Bank of England in relation to monetary policy. I beg to move that this Bill be now read a first time.

Moved accordingly, and, on Question, Bill read a first time, and ordered to be printed.

Parliamentary Broadcasting Unit Ltd (PARBUL)

The Chairman of Committees (Lord Brabazon of Tara): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That Baroness Bonham-Carter of Yarnbury be appointed to the board of the Parliamentary Broadcasting Unit Ltd (PARBUL) in the place of Lord Thomson of Monifieth, deceased.—(The Chairman of Committees.)

On Question, Motion agreed to.

Pensions Bill

3.32 pm

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord McKenzie of Luton): My Lords, I beg to move that the Bill be now further considered on Report.

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

Baroness Noakes moved, as an amendment to Amendment No. 78B (moved on Monday, 27 October 2008 at col. 1441), Amendment No. 78TA:

78TA: Before Schedule 9, leave out lines 140 to 144

The noble Baroness said: My Lords, I shall speak also to Amendment No. 78TB. These probing amendments concern the implications of acts taken as a group. First, there is a disparity between the way acts or failures are grouped for the purposes of issuing contribution notices and for the defence. By virtue of paragraph 8 of new Schedule 9, the regulator has to look at whether the material detriment test is met in relation to a series of acts as a whole. However, in new Section 38B, in the statutory defence for a group of acts, sub-paragraph (9) requires that the person has to conclude that his actions were not detrimental in respect of each act.

My amendments would mean that where a group of acts was involved, it would be necessary for P to meet condition C if he had concluded that the group as a whole was unlikely to result in a material detriment. For completeness, I should also have tabled an amendment to delete sub-paragraph (10) of new Section 38B, because that, too, requires condition C to apply to each and every act of failure, but I failed to do so. I hope, however, that the Minister will respond on the basis of challenging the need to have regard to each act or failure in a group throughout new Section 38B. I beg to move.

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Lord McKenzie of Luton: My Lords, I thank the noble Baroness for enabling us to talk about these measures and the statutory defence. Before I respond to the amendments in detail, I take this opportunity to deal with some of the issues raised in our debate on Monday, which are also relevant to this group of amendments. I do not seek to resile from the comments about considering this again at Third Reading, if appropriate, but I hope this might obviate or reduce the necessity of further consideration then.

On reasonableness, we had a useful discussion about the concept of the Pensions Regulator’s reasonableness and, in particular, its public law obligations, its duties and the constraints which are intended to ensure that it does not behave unreasonably. Both the noble Baroness, Lady Noakes, and the noble Lord, Lord Lucas, expressed concerns about the extent to which the regulator must consider the employer or connected parties when deciding whether it is reasonable to use its powers. In effect, they were querying whether the nature of the regulator’s objectives gave it something of a get-out-of-jail-free card when it came to behaving reasonably towards employers and other parties. I promised to write on this issue, but I hope that, in the interest of informing the rest of this afternoon’s discussions, I can discharge that obligation now.

I emphasise that there is a legal requirement on the regulator to act reasonably with regard to those who do not feature in the main objectives set out in legislation. The public law obligation on the regulator means that it must not simply act reasonably toward those it was established to protect, but it must also act reasonably to other parties, including those it regulates. Furthermore, there are specific requirements on the regulator in legislation to behave reasonably; for example, Sections 38(7) and 43(7) of the Pensions Act 2004 both contain express provisions to consider the reasonableness of acting against a particular party. It is also important to remember that the regulator’s decisions can be appealed at the Pensions Regulator Tribunal and in the courts. I hope that comment has proved helpful to the noble Baroness. I wanted to place that on the record.

The noble Baroness will also recall that we had some discussion about the operation of the word “might” in the statutory defence. The degree to which a person should consider the potential impact of an act on the pension scheme is a serious question, and it is one that we have considered carefully and discussed at length with stakeholders. The Government intend that the person should undertake a before-and-after comparison of the effect of the act on their pension scheme. We do not intend that the material detriment test and the defence which relates to it should necessitate a broad assessment of almost any adverse possibilities that could befall an employer and their pension scheme over a future period. The defence has been framed to require the employer to make a proportionate consideration of the effect of their act or failure to act.

It may be helpful to talk through the detail here. Condition A, at new Section 38B(3), requires that the person should consider,

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This is not a simple yes or no assessment. It requires serious consideration and contains two concepts: first, what is being considered is the extent to which the act or failure might have a detrimental effect—the key is that there must be a causal link between the act and the detriment; and, secondly, the extent to which there might be such an effect. This should be a standard risk analysis: how likely an event is must be weighed up with its likely impact. The noble Lord, Lord Oakeshott, was correct when he said that this should not be a straight 50-50 test. A 20 per cent chance of a devastating impact on the scheme may be as serious as a 60 per cent chance of something with a more moderate impact. Industry should be comfortable and familiar with this, as it already forms the basis of most due diligence in the realm of pensions.

Further, it does not necessarily require an assessment at the very edges of the possible. The statutory defence was designed, with stakeholders, to deal with concerns about hindsight. Condition A operates with condition C and that latter condition says that the person should make the assessment with regard to the prevailing circumstances at the time. Therefore, that would not include anything that the person could not reasonably have expected.

Thirdly, and briefly, we had an interesting discussion resulting from the noble Baroness’s query on why it was necessary for P to carry out due diligence themselves in circumstances that she described. I want to take the opportunity to expand on the points that I made on Monday. The legislation is clear that P has to undertake the due diligence but this does not mean that they necessarily have to mitigate the detriment themselves. The legislation requires P to take all reasonable steps to mitigate the detriment and it is intended that this obligation can be met by taking all reasonable steps to ensure that adequate mitigation is in place. I hope that that provides further clarity.

Finally on these issues, the noble Lord, Lord Lucas, suggested that the power at line 54 of the proposed new schedule is entirely contained in the power at line 89. That is entirely correct. However, there is good reason for these two powers to be separate. The power in line 54 is a prescribing power to add to the list of factors, providing flexibility to add those factors that should apply in the interests of the employer as well as the pension scheme. It is not a broad power to amend or remove the existing factors in primary legislation, and the list of factors is still constrained by relevance in a particular case. Therefore, in the usual way, regulations made under this power would be subject to the negative procedure.

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