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There were concerns that this process would be a way of screening out parents, particularly parents with care, from the statutory scheme. These were heightened by the potential loss of the statutory requirement to maximise the number of children benefiting from effective maintenance arrangements, which is an obligation of CMEC but is not to carry over to the successor-the executive agency-when that comes into being. Just a few hours ago we received a letter that purports to provide further clarity to the Bill. The noble and learned Lord, Lord Mackay, touched pertinently on that point. I am bound to say that it is regrettable that once again this information is released so close to our Report sitting. A crucial paragraph in that states:

"Therefore, we are now in a position to provide further clarity to the Bill by making it clear that the only engagement required prior to accepting an application to the statutory scheme will be to invite the applicants to have a telephone call with an adviser to discuss their options".

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Like my noble friend Lady Sherlock, I would like better to understand what that means.

If this is the interpretation that the Government put on the two amendments, it will be important to have this on the record. However, I am bound to say that such an interpretation does not flow readily from the wording, which requires the applicant to,

The term "consider" at least implies a more deliberative process than just a phone call. The process being "with the Commission" suggests the two parties having to agree on some sort of basis. However, if this is not what is intended, it would be very important to have that on the record. Given the lateness of this item in our deliberations, we may have to return to this matter at Third Reading.

The cynic might say that this changed position is an attempt to undermine the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, by removing, in relation to Section 9 of the Child Support Act 1991, a requirement for an applicant to take "reasonable steps" to establish whether it is possible to have voluntary arrangements. We would not accept that, and the noble and learned Lord's amendment continues to have our full support and stands separately from these amendments.

However, perhaps the Minister will tell us what the future of the gateway service is to be. To be fair, it was always envisaged that it would start by a telephone offering, but is that now to be its steady state? If not, and if it is to be developed into a more extensive engagement, how would that sit with the new government amendments?

To be clear, we have acknowledged the benefit of voluntary arrangements and the prospects of them being more sustainable. We support the development of family support services. We legislated to remove the requirement for benefit claimants compulsorily to use the statutory system and provide what has become the option service. Our strong concern in doing so was not that thousands would rush to use the free statutory service, but that parents with care would drift out of the system and fail to make arrangements at all.

As to Amendment 62CA, we would support a review of fees regulations. That does not mean we accept the structure of the fees proposed. We would prefer it to be done on the basis of the noble and learned Lord's amendment.

Lord De Mauley: My Lords, I am grateful to all noble Lords who have spoken. Let me turn directly to the issues raised by noble Lords. The noble Baroness, Lady Sherlock, asked, under the amendment, exactly what will happen during the gateway conversation. This also addresses the point made by the noble Lord, Lord McKenzie. We want parents to pause for thought when contacting us, before deciding whether to proceed with making an application to the statutory service.

We believe that the best way to achieve this is for parents to undertake a telephone call with a specially trained adviser. The only requirement on the parents contacting us before entering the statutory scheme will be to engage in this conversation and to discuss whether

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they have considered their alternatives. The adviser will be able to provide advice and signpost the parent to other support available, if required. Parents can then, if they wish, take time to consider the alternatives and discuss collaboration with the other parent. However, I stress that engaging in the conversation when first contacting us is the only requirement to enter the scheme. Everything else is voluntary. There is no question of us seeking to direct parents to take any specific steps. Where a parent identifies during the conversation that they need to make an application to the statutory service, the adviser will help them to do so. I hope that that addresses the point of the noble Lord, Lord McKenzie.

Lord Cormack: Can my noble friend assure the House that the telephone will be answered by a human being and that there will be a direct line to an individual, not to an automated "press this, press that" system?

Lord De Mauley: I share my noble friend's horror at being asked to "press 1" and so on for different things. I cannot absolutely guarantee that the very first answering of the call will not be that, but the key point is that it will be possible to have a conversation with a human being. That is the gateway.

My noble friend Lady Tyler has much experience in this area and I am extremely grateful for her supportive comments, particular about the additional resources.

The noble Baroness, Lady Howarth, also has a lot of experience in this area. I hope that my answer to the noble Baroness, Lady Sherlock, has addressed the nub of what the noble Baroness, Lady Howarth, was asking. Our reforms will mean that maintenance flows more certainly and more quickly. If someone presented and told us that they had an aggressive partner, we would immediately help them to make a maintenance application.

6 pm

My noble and learned friend Lord Mackay asked why we took a power to take reasonable steps in the first place. In bringing forward legislation, we wanted to provide reassurance to parents and parliamentarians that we envisaged a light-touch engagement from the parent as a pause for thought. It was considered at that stage that "reasonable steps" had advantages. In particular, we believed that there were parents who could be clearly identified as having no reasonable steps to take in their circumstances. For instance, for those who had just exited an abusive relationship, there would be no reasonable steps to take to consider a collaborative arrangement. However, we have received representations that made it clear that that left interpretation open as to what we would ask people to do. The amendment makes clear that that will take the form of being invited to consider different options when a parent first contacts us. I look forward to the debate in a short while on my noble and learned friend's amendment.

The Government propose to deliver two key things as part of the amendments. Amendments 62BL and 62BM will ensure that we have constrained our powers in relation to the gateway so that they meet our intended light-touch approach. That will give us the

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opportunity to invite a parent to consider their alternatives when they contact us, but not more. This reflects our original intention, as opposed to any question of dividing parents into two groups-those who have tried and those who have not-with us as the arbiter. Amendment 62CA ensures that we will report back to Parliament with a review and conclusions based on that review within 30 months. That reflects our belief that we have the right approach, but we will evaluate it to ensure that that is the case.

Amendment 62BL agreed.

Amendment 62BM

Moved by Lord Freud

62BM: Clause 134, page 105, line 8, leave out from "(2)(b)" to second "to" in line 9 and insert "invite the applicant to consider with the Commission whether it is possible"

Amendment 62BM agreed.

Amendment 62C

Moved by Lord Mackay of Clashfern

62C: Clause 134, page 105, line 11, at end insert-

"(3) In section 6 of the Child Maintenance and Other Payments Act 2008 (provision to allow charging of fees by the Commission), after subsection (2) there is inserted-

"(2A) Nothing in regulations under subsection (1) shall impose a liability on a parent with care for the payment of fees to the Commission where that parent has taken reasonable steps to establish whether it is possible or appropriate to make a maintenance agreement (within the meaning of section 9 of the Child Support Act 1991), and where, having taken such reasonable steps, it is either not possible or not appropriate for the parent with care to do so.""

Lord Mackay of Clashfern: I move the amendment out of a sense of the need for fairness in these alterations. I should say at the beginning that I am a member of Barnardo's and I thank others in the voluntary sector who have helped me in the work of contacting your Lordships.

After I sent my letter, one of my senior colleagues said to me, "I was surprised to receive a letter from a former Lord Chancellor inviting me to be a rebel". I have thought about that. My primary motivation as Lord Chancellor was to get fairness and justice for our people, and I hope that I have not laid that motivation aside on laying down my robes for the last time.

My amendment is about a very simple matter of fairness. The government briefing dealing with the clause in its earlier form included the statement, which all of us may believe to be true, that,

That is the group I am focusing on, because I do not believe that it is fair to require them to pay charges when they are not responsible for creating the need for the use of the service.

The obligation to maintain children is an obligation between the parent and the child which subsists for so long as the child needs maintenance and the parent lives. The mere fact that there has been disturbance and breakdown between the parents is in no sense a

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reason for not paying maintenance. Therefore, one of the key things that my noble friend Lord Newton and I thought, when this arrangement was being made originally in 1991, was that it was important to separate consideration of things such as contact and other detailed arrangements from the obligation to pay maintenance. That is a clear obligation which, as I said, subsists whatever the relationship between the parties.

My question is simply: is it fair to charge a parent in that group? The suggestion is that the use of charging will create an incentive on both parents to enter into an agreement. I agree that in many cases that will be so, but the quotation I have just given explains that that is not true in every case. I use the example of where the man declines to pay maintenance. It is usually the man as 97 per cent of the cases under the CSA are initiated by the mother as the parent with care. There are one or two where it is the other way round, but I use the mother for illustrative purposes, as long as your Lordships understand that that is not the universal situation. In my view, the only question that arises on application to the CSA-the names have changed once or twice but the name CSA is used in the letter that was kindly circulated this morning-is whether the parent, the father, is prepared to pay maintenance: is he paying maintenance and is he prepared to pay maintenance? That is all. He is not asked anything else.

The idea that I want to have an adjudication of whose fault it was that there was a breakdown is absolute nonsense. Those of your Lordships who have been here long enough will remember that I had some trouble getting through this House a law reform Act of 1996, which introduced divorce without fault. No-fault divorce seemed to me to be the only answer. I do not believe that any tribunal on earth is able to make an absolutely just appraisal of who is responsible for a breakdown in a relationship. I certainly do not want to put that task on the CSA-not at all. I want the CSA to be concerned solely with the question of maintenance, and the obligation of maintenance clearly arises when one is a parent, nothing else. It does not matter what else has happened. As long as I am the parent and the child is still in need of maintenance, the obligation subsists. That is the only question that arises at that stage. The idea that I want to have some kind of quasi-judicial bureaucratic process that will take a great deal of money out of the system is nonsense. I have no such desire.

Those of your Lordships who were here will remember the debate about the Bill-which, as I say, is still on the statute book, not yet implemented. The time will come when it is, probably; at least, I hope so. I am also very keen on what the Government are now saying about the need to try to get voluntary agreement. I am 110 per cent behind that. I believe that voluntary agreement on all the arrangements needed on separation is vital. If we could get that in every case, there would be no need for the CSA and very little need for a good lot of the family court arrangements that we have to have. Sadly, we are in the real world and that is not always possible.

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That is the simple point that I wanted to make. I suggested when I had some of these meetings how this could be handled. My idea is that when somebody applies to the CSA and is serious about it, the application should be taken into account and immediately a letter would go to the non-resident parent-the NRP as we tend to call him-to ask whether he is paying maintenance at the moment or is willing to pay, and giving him something like a fortnight or a month to reply. There is no need for any quasi-judicial function or anything of that sort. That is what I want. On that basis, if he says, "I will certainly pay and set up a direct debit tomorrow", there is no question of the CSA being involved. However, if the CSA is involved to force him to pay, he has the responsibility for bringing that about and the fees should be adjusted. The fees are still subject to discussion. There is no question at present about a strict standard of fee; the fees are subject to discussion. They should take account of the fact that this is the way the scheme operates.

The motivation of the Government for these charges is said to be to try to bring people to voluntary agreement. I am entirely in favour of that. But if that proves impossible, when the woman is at the stage of having nothing more that she can to, she has to pay. What does that do? If anything, it might make her not go to the Child Support Agency at all and the child will lose the maintenance. I cannot see that asking for that is an incentive to do anything that the Government want.

There are other considerations that I would like to mention briefly. As I say, I am entirely in favour of putting as much money and effort as possible into getting people to reach agreement when they fall out-if possible, repairing the relationship, and if not, trying to sort out the consequences of its breakdown. The Government propose an exception to this in respect of domestic violence. I believe that my amendment would take them out of the hole of trying to define domestic violence by reaching the conclusion that where there is the threat of that sort continuing at the time, any kind of agreement between the parties on maintenance is just not possible and therefore not appropriate in terms of my amendment. Your Lordships will notice that the terms of my amendment came out of the terms of the clause before the amendment that was proposed a few minutes ago. It has the full approval of parliamentary counsel obviously, and a very excellent draft it is. This would deal with the question of the exception in favour of those who have been the subject of domestic violence. I do not think that the Government have yet worked out exactly how they will establish that. I have every sympathy with them and offer them an easy way of dealing with the matter.

The statutory provision for charges came in as a result of Sir David Henshaw's report. He makes it clear that he did not want to see charges as a disincentive to the use of the system. At the stage that I am dealing with and for the group I am dealing with, that is the only possible purpose of it. This does not carry the approval of Sir David Henshaw in his advice to the then Government to bring in the power to charge. This seems to be the situation. It is simple and I am extremely sorry to find myself in a position of opposing the Government. I was anxious if possible to reach an

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accommodation with them but so far nothing has been offered to me that would be an explanation to your Lordships of why I withdrew from this very principled position. I beg to move.

6.15 pm

Lord Morris of Aberavon: My Lords, I rise in support of the noble and learned Lord. This is my first intervention in this Bill and it will be brief. I hope that my experience as a constituency MP will be of some assistance to the House. In that capacity I was, I am sure like all MPs, overwhelmed by the number of cases arising from problems of dealing with the CSA. The majority were wives. Mine was a heavily industrialised constituency and industrial workers were not overpaid. The problem was trying to get two family incomes from one pot. All the difficulties arose from that. They were mostly, in fact all in my case, people of modest means. They came to their Member of Parliament because all else had failed. The CSA had failed. It did not have a glorious record. The proposal passed through the House of Commons far too quickly, almost on the nod. It was hardly questioned. It has been relaunched more than once. People at the top were moved but to no avail. From what I heard from the Minister a few minutes ago, this is yet another relaunch. I suspect that the burden on MPs, although I am now out of touch, has not lessened in recent years.

I was aghast when I read the proposal to have a charge. How will it assist people of very modest means before they avail themselves of existing machinery-however bad and unsuccessful it was in many cases? What is the purpose of imposing such a charge on the most vulnerable people? It reeks of unfairness and I support the noble and learned Lord.

Lord Newton of Braintree: My Lords, if anyone wondered why I moved from my earlier position, they would have guessed that it was to stand shoulder to shoulder with my noble and learned friend Lord Mackay. He and I were in cahoots over the attempts to tackle this problem 20 years ago. We were in cahoots with what was said in Committee on this matter, and I have made it clear that I intend to remain in cahoots with him on this amendment.

I have not been at the meetings, but I have had a number of conversations with Ministers and I give them credit for being willing to talk to me as well. I think that my noble friend in front of me will acknowledge that I have consistently said that if they could satisfy my noble and learned friend, I would not seek to push it, but if they could not satisfy him, I would stick with him. Essentially, I share his views. I do not think that it is fair, right or productive. The letter that presumably went to everybody in the House was mostly convincing. I have no problem with the case for reform or the desire to cut the costs. I have no problem with the desire to encourage people to collaborate voluntarily. What I have a problem with is that I do not think that those general points connect to the conclusion that my noble and learned friend's amendment is wrong. I shall vote for it if he decides to press it, following what has been said.

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It is a simple position. I will not rehearse his arguments or seek to elaborate them. I shall make only one other point which relates to the 13-month review. I am in favour of a review, but the case for reviewing it after experience is stronger on the basis put by my noble and learned friend than on the basis put by my noble friend the Minister. If there is evidence that it is discouraging sensible, voluntary arrangements in the interests of children, we can look at it again then. I do not believe that it will-and this would need to be shown before we changed from the basic, fundamental proposition that it is not right, fair or just for a parent with care to have money deducted on these grounds from the money paid for her children.

Baroness Butler-Sloss: My Lords, in the family courts the welfare of children is paramount. It is particularly important to remember that in relation to the amendment that the noble and learned Lord moved, which I very strongly support. I have absolute, practical experience as a family barrister and judge, from long before the CSA came into being and took that work from judges. I have vivid recollections of a certain group of parents, principally fathers but occasionally mothers, who absolutely would not pay. There was no point in even asking them-although I understand why the Minister thinks that they should be asked. They would do everything in their power not to pay. The only way they can be got at now is through the commission. It can only do a better job than the CSA, which profoundly failed at the task it was set.

These parents will not pay, and the idea that a mother in very poor circumstances, left with young children by the father, may find herself having to seek social benefit from the state, which she may not have sought before, when the father may have money while she has nothing that the state does not provide, and may then have to pay a fee to try to get money for the welfare of her children, particularly where she has no money and the father may have some, is profoundly unfair. I respectfully and strongly support the noble and learned Lord, Lord Mackay of Clashfern, and hope that the House will support him, too.

Lord Cormack: My Lords, I, too, very much hope that the House will support my noble and learned friend. I hope that those on this side of the House who are inclined to support him will not consider that they are acting as rebels against the Government. This does not knock the central plank out of the Government's Welfare Reform Bill, which I am proud to support. I listened to what my noble friend Lord Newton said on Monday and wish more noble Lords had heard it. He spoke eloquently in support of the principles of the Bill. His speech was widely and rightly commended. However, here we are dealing with something very different. We are not torpedoing the Bill. We are injecting a little bit of extra fairness into it.

The noble and learned Lord, Lord Morris of Aberavon, spoke as a former constituency Member of Parliament. I was in the other place for 40 years and saw countless women who came to me in great distress, who would have regarded a fee as a deterrent and who considered that this was further evidence that the system was

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against them. They often came in despair and because they were in true need; but also because the child for whom they were responsible, and for whom the father was responsible, was in need. We are talking here about children, who are not party to whatever dispute might have divided the marriage, relationship or whatever else. Saying to a woman who comes in distress and despair, "Fill in form X and pay your fee", would be nonsense. What they need is help, contact with human beings-which is why I made my brief intervention on the Minister's speech a while ago-and support.

The noble and learned Baroness, Lady Butler-Sloss, was quite right to say that some people have no intention of owning up to their responsibilities and paying. The Government's general philosophy is one that I hope that most Members of the House can support. We all know that our welfare system is in need of overhaul and reform and it is a courageous act to face up to that. However, this does not mean that everything in the Bill is right, and this clause needs amending in line with what my noble and learned friend said. He is a man of infinite wisdom and great experience, and is held in the highest respect in all quarters of the House and all parts of the country. He is no rebel; he is a man of common sense and compassion and he deserves support.

Baroness Howarth of Breckland: My Lords, I will make a simple and straightforward intervention. I will not repeat what I said earlier, but the points I made then were pertinent. I wholeheartedly support the noble and learned Lord, Lord Mackay, and will make two points. It is right that when the noble and learned Lord brought forward legislation that separated maintenance from contact, it took us forward. However, the two things are not separate. A man-it is mainly men; only 3 per cent are women-may feel that he should have contact with his children despite the fact that he has been found not to be safe, not only in relation to domestic violence but to child protection issues. He may believe that he has a right to contact. However, if the court has said, "No contact", he will definitely not feel that he has to make any payment whatever. One cannot separate the two issues.

I have one further question. Being of a practical turn of mind, I am still trying to work out how the system will proceed. There will be a telephone call with a human being. I do not know whether the human being will have any training or understanding of the issues; where they will come from; or what their background will be. These situations are extraordinarily complex. In the children and family court service, our staff make this kind of assessment when cases come through to ensure that there are no protection issues. They are our most experienced staff; not the least experienced or the clerical staff. Who will do that in future?

After the phone call, who will make a decision? What sort of assessment will be made, in cases of violent marital dispute and child protection, to determine whether someone has to pay? I have not gone into all the issues that were eloquently put forward by other noble Lords around the House about the justice of the matter. Women who may have been abandoned after

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horrific incidents with men will find themselves being held responsible. As the noble and learned Lord, Lord Mackay, said, this will not affect everybody but only that group. How will we identify them and who will make the assessment?

6.30 pm

Baroness Howe of Idlicote: My Lords, I remember listening to the noble and learned Lord, Lord Mackay, upstairs in Grand Committee. I immediately saw the sense in what he said and backed him. Upstairs, the situation was limited. Here, one sees a fascinating cross-section of all sides of the House thinking that this is the right way forward, and that there is no way the charge should be levied when we all know the dangers that this group of women-I am thinking of what my noble friend Lady Howarth said-may find themselves in. As we have heard, some 97 per cent of those who go to the CSA are women. Many of them are suffering and none of us should be prepared to make them suffer further.

I was sent many letters at that time. I remember particularly an extract from one of them. I will repeat a tiny bit of it because it is also to do with the CSA, which we have heard being criticised and equally we have heard is doing a good job, even though it has had to be reformed several times. She wrote:

"When the payments finally started coming in via the CSA-you cannot imagine the weight that was lifted off my shoulders. I finally felt I could plan ahead for school trips, clothes and other essentials. The relief has been immense. The truth is that the proposals will only penalise the children the CSA is meant to help. Women generally only turn to the CSA when they have exhausted all other avenues. It's an act of desperation".

She ended:

"My message to the government is this: you will be hurting the very people you are trying to help. And, I fear, partners who only receive a small payment will just give up altogether. It will be their children who suffer".

I congratulate the Government on the efforts they have made and on the £20 million that they are going to be putting aside. I am not critical of that at all and I think that their intentions are in the right direction. However, a very interesting cross-section of the House still wishes to continue to support the amendment moved by the noble and learned Lord, Lord Mackay. That is not just a good example of what this House represents and of the wisdom and sense it represents, but it is also the right thing to be doing.

Lord Brooke of Sutton Mandeville: My Lords, I was sitting next to my noble friend Lord Boswell of Aynho, who was the seconder of my noble and learned friend's amendment, when my noble and learned friend moved his original amendment in Grand Committee. I rise to explain that the reason that we have not heard from my noble friend Lord Boswell is because he is on separate duty in the Council of Europe today.

I hope my noble and learned friend Lord Mackay of Clashfern will understand that I think that on our side we have an obligation to listen very carefully to what the Minister says, and I propose to do that, but the fact remains that a very powerful case has been made in the opposite direction.

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Baroness Sherlock: I came across a quotation from the Committee stage:

"For even though marriages may break down, parenthood is for life. Legislation can't make irresponsible parents responsible. But it can and must ensure that absent parents pay maintenance for their children".

That was said by the noble Baroness, Lady Thatcher, in 1990. She went on to talk about setting up the CSA. We have heard a lot about the failings of the CSA, but more than £1 billion changed hands last year through it. Before it was set up, lone parents had only the option of going to the courts to try to enforce maintenance, and in the vast majority of cases, they could not afford to go and could not afford to enforce it if it happened.

There are two very simple reasons for backing this amendment, which is why my name is on it. The first is simple compassion. There is no good reason why a single parent should have to hand over to the state not only £100 up front but up to 12 per cent of the money that is currently going to her children simply to have what is owed to her in law paid.

The second is a question of justice. If the Government's intention is to change behaviour and to make sure that the absent parent pays up, they should charge him. What can the lone parent possibly do, other than ask, to make him pay up? Yet she will be penalised for his failure to pay. There is no behaviour change that she could possibly undertake, other than to ask nicely. She cannot do anything. That is why she has gone to the state in the first place. She has come to the state to ask for the help that the noble Baroness, Lady Thatcher, recognised all those years ago and set up an agency to give. We must not fail her today.

The Lord Bishop of Manchester: My Lords, many of my parish priests would endorse the kind of things that we have heard of this afternoon, the many cases where single parents-97 per cent of them mothers-are placed in a most cruel and unfair position. It is only recently, I think, that the Prime Minister said that our society must do more to make fathers understand and take responsibility for their paternal aspects which they have taken on by becoming fathers. What I do not think he said but, unfortunately, what this Bill does is that the mother who is left on her own without any financial backing from that father should therefore pay this huge penalty. That is what this Bill is requiring at the moment. It seems to me that what the noble and learned Lord, Lord Mackay, is putting before this House is a very sensible and compassionate way of undoing an injustice which I do not believe the Government really intended in the beginning. I hope that the Minister will see his way forward to recognising the great power of opinion that he must surely have heard this afternoon in this House.

Lord Stoddart of Swindon: My Lords, I say right away that I have no hesitation in supporting the amendment of the noble and learned Lord, Lord Mackay of Clashfern. I remember, as I am sure he will remember, the debates we had during the day, and in the watches of the night, over the original CSA Bill. We had certain disagreements at that time, but we have no disagreements this afternoon. Time is getting on,

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but the point I really want to make is that the Government, in imposing charges, are, in fact, undermining what they want. If there are no charges, the Government are in a win-win situation because it will not only help them financially but it will help family life, particularly for women, and will also give encouragement, perhaps, to the absent male, the absent father, to take a greater interest in the family if he is making a contribution towards the upbringing of the child. I appeal to the Government for their own sake to accept the amendment moved by the noble and learned Lord, Lord Mackay. It is a very sensible amendment that has been supported on all sides. There has been no criticism from any part of the House. I feel sure that if the amendment is put to a vote, the Government will suffer another defeat, and I am not at all sure that politically that is very wise.

Lord Mawhinney: My Lords, politicians regularly claim to have fairness on their side. It is sort of part of the trade, and it creates the impression that they are on higher moral ground than the opposition-whether that be the Opposition or the Government-who, by definition, cannot therefore have fairness on their side. In more than 30 years at both ends of this corridor, I can think of very few, if any, debates where we have debated quintessentially just the issue of fairness. It is always linked with a policy, and this is linked to a policy as well but, as has become clear during this debate, what we are really being asked to take a decision on is fairness.

I make no apologies for saying that I had the pleasure, some years ago, of working closely with my noble and learned friend Lord Mackay of Clashfern. I have no embarrassment in saying that I learned from him and benefited from his integrity, wisdom and common sense. If any noble Lords had not had this pleasure and privilege, they will have had this evening. That was as powerful an explanation in simple language of integrity, clarity and humanity as I have heard. I have seldom if ever heard someone put the Government ever so gently but firmly in their place without creating any angst, unhappiness or unpleasantness in the process.

I agree with the noble and learned Lord, Lord Morris of Aberavon, and the noble and learned Baroness, Lady Butler-Sloss: any Member of Parliament can tell stories about the failure of the CSA. The noble and learned Baroness, Lady Butler-Sloss, spoke of her experience of dealing with men who were intransigent beyond persuasion. I cannot be the only former Member of Parliament who has been physically threatened in surgeries by men because I tried to persuade them that I did not have the power to solve their problem. That threat of physical violence stemmed from an antipathy to their former partner which was time and again beyond remedy-in many cases, beyond even consideration.

I have to say to my noble friend the Minister that, just for once, I think the Government have got it wrong. I support what they are trying to do and I know of nobody in either House who would have the gall to stand up and describe the noble and learned Lord, Lord Mackay of Clashfern, as a rebel. They would get laughed out of court if they tried. I cannot

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stand shoulder to shoulder with him, but they would also have a certain amount of difficulty labelling me that way.

If ever there was a time for the Minister to say, "This has been a very good debate, conducted in good humour but with surprisingly impressive intellectual integrity and humanity, and I will take this back and talk to my colleagues and come forward at Third Reading with the Government's considered position, bearing in mind this debate", it is now. I hope my noble friend might take that as a constructive suggestion for the way forward.

I made it clear before I came into the House for this debate that it was not my intention or inclination ever to vote against a proposal moved by the noble and learned Lord, Lord Mackay of Clashfern, my friend, but I did not commit myself on whether to abstain or to support him. Unless the Minister says something wholly remarkable over and above what has so far been said, I will join my noble and learned friend in the Lobby.

Lord Goodhart: My Lords, I do not often vote against coalition policy. I voted for the coalition on Monday, when the coalition was in fact defeated. I voted for the coalition policy then, not because I personally supported that policy but because it was something that I could and should accept as a member of my party and therefore the coalition. This occasion is entirely different. The draft that the amendment replaces has been shown to be very seriously defective. I cannot support that draft. I can and will support the amendment of my noble and learned friend Lord Mackay of Clashfern.

6.45 pm

Baroness Berridge: My Lords, I have not spoken previously in your Lordships' House on this Bill, but I briefly practised as a family barrister and as such I hold the noble and learned Lord, Lord Mackay, in the greatest esteem. However, what initially looked attractive when I received his letter has given me pause for thought.

As a barrister, I witnessed how unresolved issues concerning the breakdown of a relationship get played out in matters concerning money as well as children. Although much has been said on behalf of mothers, who are in the majority in this situation, of course it is not as simple to say that just because the mother has the care of the children she is not sometimes at fault for the fact that maintenance is not paid. I would like to put on record before your Lordships the perspective of fathers, which I think is best described in the lyrics of Professor Green's "Read All About It", one of the most popular downloads last year. He was referring to his mother when he said:

"After all, you were never kin to me.Family is something you have never been to me.In fact making it harder for me to see my fatherWas the only thing you ever did for me".

It is a heart-rending rap about a child caught in the animosity of a break-up. As I am sure your Lordships will agree, avoiding conflict in the courts or in any other forum helps to limit such animosity, greatly to the benefit of the children.

25 Jan 2012 : Column 1100

Will there be rare cases where the lack of payment is entirely the mother's fault? Yes. Will there be cases where the lack of payment is entirely the father's fault? Yes. However, in the majority of cases it will be to some extent both people's fault. If I were convinced that this amendment would address only the concerns outlined by the noble and learned Baroness, Lady Butler-Sloss, I would support it. Unfortunately, I believe that the unintended consequence of this amendment would result in the adjudication of matters that would not assist or encourage amicable ongoing relationships between the parents, which are of the greatest value to the children at the end of the day.

I am afraid it is not as simple as just catching the cases outlined; nor unfortunately are parents always able, in my experience as a barrister, to separate their role as a parent from the issues of the breakdown of the relationship. I would be grateful if my noble and learned friend could please outline how there will be a determination as to whether or not someone has taken reasonable steps without some kind of judicial process, and how introducing any form of fault-based assessment of the parties' conduct in relation to the payment of money is possible without inadvertently-and I accept it is inadvertently-providing a forum in many cases for the outstanding relationship issues to be unhelpfully vented. I am afraid I am not convinced by the noble and learned Lord's amendment.

Lord Kirkwood of Kirkhope: My Lords, I will just take two minutes to deal with that, if I may.

First, I have encountered the break-up of marriage at a variety of levels. I was involved in consistorial legal work before I was elected in 1983, and I spent most of my time in the House of Commons as a spokesman for my parliamentary group and then as a chairman of a Select Committee which endlessly looked at the 1991 Act and all the bits and pieces that flowed from it. It has been quite clear to me as a result of all that experience that if anybody tries to take some lessons and principles from the cases that are conducted in the High Court of the land, dealing with many thousands of pounds at a very high level, where things are fought over and the big silk hanky brigade of the legal establishment makes lots of money, they are a million miles away from ordinary people whose families break up week in, week out. I do not think it is safe to start contemplating the amendment tabled by the noble and learned Lord, Lord Mackay, and its consequences, when seen from that perspective. That is not what this is about.

I mentioned Select Committees. I just want to draw noble Lords' attention to the fact that the current Select Committee in the other place recently produced a report on this which recommended that where parents with care had taken all reasonable steps to investigate a private arrangement but that was not possible or appropriate, no charges should be made. In my view, there has never been an established case made for charging either parents with care or non-resident parents.

The Henshaw report was an extremely scrappy piece of work. The noble and learned Lord, Lord Mackay, rightly pointed to the fact that even the Henshaw committee, upon which most of the Government's

25 Jan 2012 : Column 1101

case is made, clearly said that it did not want any disincentive effect to be imposed as a result of charging. It made a different case altogether. Incidentally, the Henshaw committee report was as clever as to say that we should close down the CSA and have a residual body to chase debts. That is about how sensible some of the recommendations in the Henshaw committee report were. As far as I am concerned, it is true that it was discredited before the ink was dry and it went for ministerial consideration.

This issue is about whether charging will assist collaboration and co-operation between separating parties. I can see no understandable circumstances that charges would make it easier for people to stay together longer. I do not see how that case can be made or that it has been made.

The system we are setting up for 2014 will be much cheaper for a variety of reasons. From an administrative point of view, there is no need to put money into the system because the assessment process, the computer systems and so on will make the whole administration of this, if it all works, a lot easier. It is entirely affordable. The way in which some Ministers have been rubbishing the system is disgraceful. It is not a perfect system but it supports 870,000 children-I repeat, 870,000 children. This is not an insignificant institution which could be done without. Nudging 50 per cent of single parents with care get something like only £20 a week. That is the extent of the money that they derive from the system, but it is essential for those who use it.

Quite simply, collaboration between the parents who are separating will not be assisted by charging. It would inevitably result in less money flowing to the children in the charge of the parent with care. There is no case whatever for charging, so I am compromising greatly in supporting the entirely reasonable amendment moved by my noble and learned friend Lord Mackay. Speaking for myself, I would scrap the whole idea and not give it house room. I hope that the House will come quickly to a resolution and I encourage noble Lords to support the amendment in the name of the noble and learned Lord.

Lord McKenzie of Luton: My Lords, this has been a powerful, passionate and extremely well informed debate. If the debate has not been quite unanimous in support of the noble and learned Lord's amendment, one thing on which there has been unanimity is the esteem in which he is held. On charging and the Henshaw report-which the noble and learned Lord mentioned, as did the noble Lord, Lord Kirkwood-as the report made clear, any charging regime should not dissuade vulnerable and low-income parents with care from seeking maintenance in the first place. That was translated into a White Paper of the Labour Government, which said that charging should be based on three clear principles: it should incentivise non-resident parents to meet their responsibilities; the clear burden of charging should fall on the non-resident parent and not the parent with care; and cost recovery via CMEC should never be prioritised over payments to parents with care.

A host of points have been made. I agree with what the noble Lord, Lord Cormack, said-supporting this amendment will not torpedo the Bill. If it would, I

25 Jan 2012 : Column 1102

would doubly support it. But even on the basis that it will not, it should be supported. We have heard testament from a number of noble Lords, particularly the noble and learned Baroness, Lady Butler-Sloss, about the complexity and possible difficulty of people's lives. We have to recognise that people just do not live tranquil, routine lives where you can easily come to agreement. As someone who briefly had ministerial responsibility for the CSA, I saw some horrendous cases about non-resident parents, mostly men, who would do anything to avoid meeting their obligations.

The history of the CSA/CMEC has evolved, and this is perhaps not the occasion to rehearse it. The fundamental point that the noble and learned Lord made was that this is about fairness; it is not about seeking to attribute blame to the challenges that couples find themselves in when they separate. I thoroughly agree with that. I am aware that the noble and learned Lord does not press this matter lightly. As we have heard, he has endeavoured to persuade his colleagues at the highest level in government on the proposition that he is advancing today. We should be guided by what is best for children and whether supporting this amendment would make it more likely that they will benefit from maintenance arrangements. We consider that it will, which is why we support it.

I suggest to the noble Lord, Lord De Mauley, that it would be really good if he could accept the amendment, particularly because so many noble Lords from his own Benches have spoken in favour of it. The clear and overwhelming view of the House is that the amendment should be accepted, which would be the right thing to do, without having to reinforce that with what would clearly be an overwhelming vote.

Lord De Mauley: My Lords, I have enormous respect for my noble and learned friend Lord Mackay, which I know all noble Lords, including the noble Lord, Lord McKenzie, share. I am grateful to him for his amendment and to all noble Lords for their contributions. I have listened carefully-and not, I have to say, without trepidation-to the detailed points made by my noble and learned friend and all other noble Lords who have spoken. I am glad that we have also had a debate within the debate about charging.

I emphasise again that the Government's reforms and particularly charges need to be seen in the wider context. Perhaps I may start by setting out some of the historical contrast. When the Child Support Act was taken through Parliament in 1991 one of its primary aims was to recoup the money that the Government spent on benefits. This was achieved by reducing lone parents' benefits by the sum that we were able to collect from non-resident parents. Parents on benefits had to use the scheme in order to further this aim. That was a scheme of its time and was set up with the most noble of intentions, namely reforming a court-based system that was not working.

Today we start in a different place. Lone parents no longer have their benefits reduced at all when child maintenance is received and this Government have been proud to announce that we will extend this to universal credit. We have greater ambitions. We see a key part of the reforms as expanding the support for

25 Jan 2012 : Column 1103

parents to collaborate. We no longer require parents to use the CSA. We do not want it to be the default option. Where they can collaborate, we believe that that is fundamentally better for parents and children. That is why we cannot accept my noble and learned friend's amendment.

The proposal would set up a system where the state would be obliged to try to arbitrate. We specifically think that that is what will happen if we use the reasonable-steps test, which surely requires some sort of judgment as to whether an applicant has done all that could be expected to reach a family-based arrangement with the ex-partner.

We cannot see any way to collect hard evidence to show that a parent with care had taken reasonable steps without an inappropriate degree of intrusiveness. We do not believe that the state should try to monitor whether a conversation has taken place about collaboration between two private individuals, the parents. We cannot see how to make this work, not least because parents could quite fairly challenge the state's discretionary decisions, leading to delays in maintenance flowing and acrimony in the system.

7 pm

Baroness Howarth of Breckland: My Lords, I find that surprising when, on a daily basis, the guardian ad litem in a court case can be expected to make similar sorts of judgments between two people as to whether contact should be awarded to one parent or the other. These are the same families, so surely there must be some way in which this kind of assessment could be made. Indeed, it has to be made because the noble Lord said previously that there would be some discretion in relation to marital violence and child protection. How are those assessments going to be made if no assessment is made at all?

Lord De Mauley: Perhaps the noble Baroness will permit me to come to her specific questions in a while.

My noble and learned friend proposes that this could be handled by allowing a CSA staff member to make what I am suggesting would be a subjective decision, and for that decision to be appealable. I ask your Lordships to consider whether legislation that confers on officials a subjective decision and then asks for an appeal system to police those decisions is the right way forward. It is not the Government's position that that is the case. It would add to the costs for the taxpayer and complexity for parents and staff. One lesson we have learnt since 1993 is that legislation, with the best of intentions, will not work if it is highly complex or subjective in delivery. This approach with its subjective decisions and appeals again risks conflict, and surely none of that is in the interests of the child.

However, to offer your Lordships some views on the costs involved, we have also looked at an alternative approach to delivering the amendment. This would be based on a self-declaration from the applicant that reasonable steps had been taken. This is obviously a porous test that could be open to false reporting. Even then we estimate that the amendment would increase costs in the statutory schemes by over £200 million

25 Jan 2012 : Column 1104

to the end of March 2019, making these reforms unaffordable. I hope that my noble and learned friend will therefore understand that, in our view, there is a tension at the heart of the amendment. It applies either a test we cannot police or a test that everyone can pass because we are not able to police it. Further, however the amendment is applied, it undermines the core of why we want to introduce charging. To reform the system and maximise the number of effective child maintenance arrangements, we must have an affordable but clear financial incentive on both parents to collaborate. We discussed in Committee what the noble Lord, Lord McKenzie, also mentioned, which is that the concept of charging was introduced in the 2008 Act.

Parents who can collaborate outside the statutory scheme will be provided with the help and support they require. Correspondingly, an application charge for all provides a clear incentive for parents with care to consider collaboration outside the statutory service, with all the benefits that has for children. Without a financial incentive in the form of an application charge, we risk recreating the CSA caseload we currently have, with parents using it despite ultimately telling us they could collaborate. The evidence is clear that we have a system at the moment where 50 per cent of parents using the CSA believe they could make a collaborative arrangement with the right support.

The ongoing collection charges will promote collaboration both outside and within the statutory scheme, and will create a real incentive in the non-resident parent to pay the parent with care direct, in full and on time. If, under Clause 135, the non-resident parent chooses to use this option, which is known as maintenance direct, neither parent will pay collection charges. Furthermore, the parent with care can be safe in the knowledge that if payments are not made, their case will be brought straight back into the full statutory enforced collection service.

The Government also believe that following the introduction of a demonstrably better future scheme it is fair to ask for a contribution to the costs of what, as I explained in the last debate, is a heavily subsidised service. To reiterate, I mentioned that the cost of a typical CSA case is up to £25,000, and that can rise to £40,000 where we need to take substantial enforcement action. It is a system that on average costs around 40p to move every £1 between parents. Furthermore, we will not start collecting charges until the scheme has been running for at least six months to allow the new system to demonstrate that it is delivering an improved service for parents.

We have had a fairly spirited debate on the principle of charging. However, I hope that noble Lords will reflect on the principles I have described and the assurances I have given. We do not want to return to the days when the state was encouraging parents to blame each other since we know that is the worst thing for children. We have a coherent package of reforms starting from a very different place to the 1993 CSA, and charges have a role to play within it.

I turn now to the questions raised by noble Lords. I shall paraphrase what my noble and learned friend said: "I do not want an adjudication. I just want a test of whether the father will pay". I accept the intentions

25 Jan 2012 : Column 1105

of my noble and learned friend, but his plan is for a letter to be sent to the father to ask if he will pay outside the scheme. That would be costly and complex. We have over 100,000 applications each year, and the most difficult element is finding the father. Mothers often do not have the father's latest address, and often that is not the father's fault, so importing the trace aspect of the application is costly and complex, and will delay us being able to start to process applications for those who need it most.

My noble and learned friend referred to Henshaw's intentions. The Government agree that we do not want to dissuade those who need it from accessing the scheme. That is why we are carefully considering the level of the charge. But Henshaw was clear in recommending that charging should be introduced to users of the administrative scheme because it,

The noble Baroness, Lady Howarth, asked a number of searching questions. She referred to the risk of the non-resident parent demanding contact as a condition of maintenance. That is a key part of what we have been addressing and we agree entirely with her. If a case enters the system we will use data, for example, from HMRC. There will be no need to obtain this direct from the non-resident parent. A calculation will be made based on that data and he will be required to pay, if necessary by order on his bank account or from his benefits. There will be no requirement, particularly for victims of domestic violence, to have any contact or to reveal their contact details.

The noble Baroness asked about the people who take the calls. Advisers will be using training which has been developed with the input of a large number of voluntary and community experts. Self-declaration of domestic violence will be sufficient, and no application charge will need to be paid. The noble Baroness also asks who will arbitrate on whether the non-resident parent has to pay. What I am trying to get across is that there will be no need for arbitration. The non-resident parent will have to pay based on the calculation. She intervened to ask about discretionary decisions. As I have said, there are around 100,000 applications each year and the nature and scale of the judgments are issues which, I am afraid, fundamentally flaw the amendment.

I am grateful to my noble friend Lady Berridge for her intervention, and of course I contend that she is absolutely right. I do this with trepidation, but I ask my noble and learned friend to consider withdrawing his amendment.

Lord Mackay of Clashfern: My Lords, I am grateful to all those who have supported me, as well as to those who have spoken but who have not supported me, of whom the number was fairly small. I pay as strong a tribute as I can to my noble friend Lord De Mauley, who, as I said, has been with me at all the meetings in recent times. The noble Lord, Lord Kirkwood, and I had a meeting with the Minister in the Commons, Maria Miller, way back in July. I intimated then, to the highest level of the Government, that I intended to table this amendment, so there is no question of an ambush or anything of that sort.

25 Jan 2012 : Column 1106

I re-emphasise that the question that we are debating is whether the non-resident parent will pay maintenance-that is the only question-and the simple way to find out is to ask him. I do not for a moment want to adjudicate on who is to blame for non-payment-that would be idiotic. Apart from anything else, it would be very difficult, just as it will be difficult to police agreements in domestic violence cases unless the Government kindly accept my amendment as a way of doing it. The amendment proposes a very simple, straightforward way of doing it, because, under it, a factor would be whether it was "appropriate" to make a maintenance agreement.

I thank all noble Lords who have supported me, particularly those who have put their names to my amendment. I thank also my noble friend Lord Newton of Braintree, who made it clear in our discussions with the Secretary of State that many of his views were based on constituency representation, of which I have none. Fortunately, three of my ardent supporters have a great deal of such experience.

I regret that I have no real option but to press the amendment. If one is a supporter of a coalition, as I am thoroughly of this one, one has a duty if there is a slight deviation from the norm to do one's best to bring the situation back on to the correct pathway. It is in that spirit that I invite the House to give its opinion on the amendment.

7.12 pm

Division on Amendment 62C

Contents 270; Not-Contents 128.

Amendment 62C agreed.

Division No. 2


Aberdare, L.
Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Alton of Liverpool, L.
Andrews, B.
Armstrong of Ilminster, L.
Arran, E.
Ashton of Hyde, L.
Avebury, L.
Bach, L.
Bakewell, B.
Bassam of Brighton, L.
Beecham, L.
Berkeley, L.
Best, L.
Bhattacharyya, L.
Bilston, L.
Blackstone, B.
Blair of Boughton, L.
Boateng, L.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brennan, L.
Brittan of Spennithorne, L.
Brooke of Alverthorpe, L.
Brookeborough, V.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Butler-Sloss, B.
Cameron of Lochbroom, L.
Campbell-Savours, L.
Carrington, L.
Carter of Coles, L.
Chidgey, L.
Clancarty, E.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Colville of Culross, V.
Condon, L.
Cormack, L. [Teller]
Corston, B.
Cotter, L.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.

25 Jan 2012 : Column 1107

Dean of Thornton-le-Fylde, B.
Denham, L.
Desai, L.
Dixon, L.
Donoughue, L.
Drake, B.
Dubs, L.
Dykes, L.
Eames, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foulkes of Cumnock, L.
Fraser of Carmyllie, L.
Gale, B.
Gardner of Parkes, B.
Geddes, L.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Glasman, L.
Glenarthur, L.
Golding, B.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greaves, L.
Greenway, L.
Grenfell, L.
Grey-Thompson, B.
Grocott, L.
Hall of Birkenhead, L.
Hanworth, V.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Hattersley, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Higgins, L.
Hollick, L.
Hollins, B.
Hollis of Heigham, B.
Hooper, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Aberavon, L.
Howe of Idlicote, B. [Teller]
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hussain, L.
Hylton, L.
Imbert, L.
Irvine of Lairg, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Jenkin of Roding, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kakkar, L.
Kennedy of Southwark, L.
Kerr of Kinlochard, L.
Kilclooney, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Knight of Weymouth, L.
Laming, L.
Lawson of Blaby, L.
Lea of Crondall, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Liverpool, E.
Low of Dalston, L.
Luce, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
MacGregor of Pulham Market, L.
McIntosh of Hudnall, B.
Mackay of Clashfern, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maclennan of Rogart, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Manchester, Bp.
Mar, C.
Marks of Henley-on-Thames, L.
Marlesford, L.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Mawhinney, L.
Mawson, L.
Maxton, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Hendon, B.
Monks, L.
Morgan, L.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Myners, L.
Neuberger, B.
Newton of Braintree, L.
Northbourne, L.
O'Cathain, B.
O'Neill of Clackmannan, L.
Palmer, L.
Pannick, L.
Parekh, L.
Patel of Bradford, L.
Pitkeathley, B.
Plant of Highfield, L.
Prashar, B.
Prescott, L.
Prosser, B.
Puttnam, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Reay, L.
Reid of Cardowan, L.

25 Jan 2012 : Column 1108

Rendell of Babergh, B.
Ribeiro, L.
Richard, L.
Richardson of Calow, B.
Roberts of Conwy, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Sandwich, E.
Scott of Foscote, L.
Sewel, L.
Sharp of Guildford, B.
Sherlock, B.
Simon, V.
Slim, V.
Smith of Basildon, B.
Smith of Clifton, L.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Soulsby of Swaffham Prior, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strasburger, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tonge, B.
Tordoff, L.
Touhig, L.
Trenchard, V.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wakeham, L.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Wigley, L.
Wilkins, B.
Williamson of Horton, L.
Wills, L.
Wilson of Tillyorn, L.
Winston, L.
Worthington, B.
Young of Norwood Green, L.


Addington, L.
Ahmad of Wimbledon, L.
Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Attlee, E.
Ballyedmond, L.
Berridge, B.
Black of Brentwood, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bridgeman, V.
Brinton, B.
Brougham and Vaux, L.
Browning, B.
Buscombe, B.
Byford, B.
Cathcart, E.
Cavendish of Furness, L.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Crathorne, L.
De Mauley, L.
Deben, L.
Dholakia, L.
Dixon-Smith, L.
Doocey, B.
Eaton, B.
Eccles, V.
Faulks, L.
Feldman, L.
Feldman of Elstree, L.
Fink, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Framlingham, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Garel-Jones, L.
German, L.
Glentoran, L.
Gold, L.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Home, E.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussein-Ece, B.
Inglewood, L.
Jenkin of Kennington, B.
Jopling, L.
King of Bridgwater, L.
Kirkham, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lindsay, E.
Lingfield, L.
Loomba, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
McNally, L.
Maddock, B.
Mancroft, L.
Maples, L.
Mar and Kellie, E.
Marland, L.
Montrose, D.
Morris of Bolton, B.
Murphy, B.
Naseby, L.
Neville-Jones, B.
Newlove, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.

25 Jan 2012 : Column 1109

Parminter, B.
Patten, L.
Perry of Southwark, B.
Popat, L.
Randerson, B.
Rawlings, B.
Rennard, L.
Risby, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Sassoon, L.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Shackleton of Belgravia, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Spicer, L.
Stedman-Scott, B.
Stephen, L.
Stewartby, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Trimble, L.
True, L.
Tugendhat, L.
Tyler, L.
Verma, B.
Wallace of Saltaire, L.
Walmsley, B.
Warsi, B.
Wei, L.
Wheatcroft, B.
Wilcox, B.
7.26 pm

Consideration on Report adjourned until not before 8.27 pm.

Policing Protocol Order 2012

Motion to Regret

7.27 pm

Moved by Lord Hunt of Kings Heath

Lord Hunt of Kings Heath: My Lords, noble Lords will be aware of the concerns on this side of the House about the introduction of elected police commissioners and the risk of politicisation of our police forces. Rather like the NHS reforms, the Government are bizarrely set to draw a service up by its roots when it should be focused on meeting huge challenges. At the same time as these changes are taking place we are seeing 20 per cent front-loaded cuts to police budgets impacting on front-line services, forcing the retirement of some of the most experienced officers currently serving and the closure of many police stations. As we see from the latest crime figures, crime against the person has gone up by 11 per cent and there has been a 10 per cent increase in robberies involving knives. It is therefore extraordinary that, at this time of major challenges for our police services, the Government are pressing ahead with arrangements for elected police commissioners.

We have had extensive debates on this issue and I do not intend to go over those matters. It is good to see the noble Baroness, Lady Browning, in her place. She, of course, spent a great deal of time helping your Lordships with the legislation.

The order before us is one of many. The noble Lord, Lord Henley, kindly sent me a letter a few weeks ago containing a list of approaching 20 orders which

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will need to pass through Parliament in a fairly brief space of time. The reason for the rush is that the Government wish to proceed speedily in relation to London, with elections in the other 41 police authority areas in England and Wales taking place on 15 November this year.

I have some concerns about the implications of the speed with which the Government are pushing orders through your Lordships' House and the other place. We can see from the report of the Select Committee on the Merits of Statutory Instruments the problem with that in relation to this important order, which embraces, essentially, the relationship between the elected police commissioner and the chief constable. It is clear that such a protocol should receive robust scrutiny. Noble Lords will know that the Merits Committee identified the relatively short timescale in which the protocol had been developed. It considered that a full consultation might have provided a more complete road test of the robustness of the protocols. Will the Minister respond to that point?

I also refer the Minister to the clarification that the committee sought. Appendix 1 of the committee's memorandum shows the responses of his department. He will note that the committee remained concerned at the possible ambiguity of some of the drafting of the protocol. The Minister may like to comment on that point as well.

As I have said, elections are due to take place on 15 November in 41 police areas in England and Wales. That is not perhaps the best time of year to hold an election, with dark nights and little public interest so far. There is a real fear that the turnout could be low in these elections. The problem of low turnout is undermining the legitimacy of the elected police commissioners. Whatever one's view of the principal legislation, now we move towards its implementation I am sure that we all agree that a large turnout would be a good thing, so that the police and crime commissioners have as much legitimacy as possible.

The protocol is important because there is real fear that the operational independence of chief constables could be undermined by political interference by police commissioners. The fact is that, whatever the protocol says, if you as a police commissioner have a hire and fire power over your chief constable and overall budgetary control, in the end what use is the protocol? All the levers are really with the police and crime commissioner.

What happens if a police commissioner is elected on a manifesto which has explicit operational pledges? That may be to abolish speed cameras, which the chief constable might believe save lives and are in his or her operational competence. There will be other examples where the election may be fought over what I am sure we would regard as operational issues. The moment a successful police commissioner comes into power on that manifesto, they will expect the chief constable to implement it. The chief constable may resist that and could perhaps point to the paragraph in the protocol that makes it clear that there should not be interference. We have a situation where almost all the power lies with the elected police commissioner, as I have said, with few checks and balances in the system.

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The noble Baroness and I have debated at length the powers of the police and crime panels. She made some modifications in terms of the voting that applies to vetoes exercised by the panel. Overall, the powers of the panels are weak. It is really not clear in the protocol how they will enforce a regular check on the performance of the police commissioner, as set out in paragraph 14. I have no doubt that the noble Lord, Lord Henley, will say that that is surely a matter for the panels themselves. Given that the police and crime panels have so few levers, I would have thought it helpful to outline in some detail the powers that the panels might have to check on the performance of the police commissioner.

One of my fears about the new system is that chief constables will be subject to greater insecurity in their jobs and that we will tend to have a rapid turnover of them at the hands of police commissioners. We know that that happens in the US, which is where the idea came from. I know the health service rather better than I do the police service. I know the problems that have arisen when you have such a rapid turnover of chief execs. At one point there were so many restructurings-I am afraid that both parties have been responsible for that-that you had the ludicrous situation of the average chief executive spending no more than two years in the job. That does not create stability. My concern is that, in the run-up to a re-election for a police commissioner, the temptation will be very present to pick a fight with the chief constable and sack them.

I also raise the point raised by the Merits Committee on paragraph 3.1 of the Explanatory Memorandum. This is about the fact that the protocol is not drafted in legal language. That point was raised by honourable and right honourable Members in Committee in the other place when it considered the protocol. If the protocol is not drafted in legal language would it stand up in a court of law? The Minister might wish to comment on that.

Finally, in bringing this matter to the attention of noble Lords, I know that it is the intention of the Government for the protocol to be reviewed. Would the Minister commit to reviewing this after a period of 12 months-at the end of 2013-so that it can be done in the light of the first year of experience of relationships between elected police commissioners and chief constables? He may say that a system needs longer to bed down but, in view of this being-for me-the most important aspect of the whole architecture of the new policing system, it would provide considerable reassurance if the Government agreed to a review within very quick time. I beg to move.

Baroness Browning: My Lords, since the House viewed and debated the draft protocol, we now have in front of us the instrument, which has been subject to further consultations. I am very aware that the decision to put it on a statutory basis was influenced by representations made by Members of your Lordships' House.

The consultation that has continued since the Bill became an Act has of course included the Association of Police Authorities, the Association of Chief Police

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Officers and the Association of Police Authority Chief Executives. We can be confident that those who really have a vested interest as well as a professional interest in what is in the protocol have continued to have an input into the document we see before us. Those important relationships, which your Lordships' House has discussed in some detail on more than one occasion, between the chief constable, the PCC, the panel and not forgetting the Home Secretary have been laid out with clarity rather than prescription. I do not think it was ever the intention to prescribe through this document.

Those individual responsibilities and their inter-relationship are extremely clear in this statutory instrument. I clearly heard what was said about it not being in legal language. I am sure the Minister will reassure us in terms of any legal challenge. On reading it, I thought it was rather refreshing. Please God that more statutory instruments appear in language that we can read and understand on first reading. I hope that the Home Office will submit this document for the Plain English Award this year. That would be a first for a government department. I commend that suggestion to the Minister. It is very important not just that those who have to enact this understand it but that the wider public, too, can feel that it is something they can see, read and understand.

Briefly, because the House does not need me to read out the instrument before us, I recall clearly that one matter of great concern was the operational independence of the chief constable. I believe that the language used here clarifies the responsibility of the chief constable for maintaining the Queen's peace and having direction over the forces, officers and staff while at the same time not going into that prescriptive detail that would quite clearly hamper the activities and freedom of the chief constable to take those operational decisions. That very important point has been well measured and found in the document.

I remind the House that police and crime commissioners have a statutory duty and electoral mandate to hold the police to account. All too often it has been the Home Office that has, from on high, sought to do that. This moves the responsibility down to a much more local and operational level. That democratic mandate brings policing so much closer to the people who are being policed while at the same time reminding us through the appropriate section that the Home Secretary still has and may at times need to use reserve powers with regard to policing.

The role of the panel, which we have debated in some detail on many occasions and on which the Government made considerable concessions when the Bill was before your Lordships' House, is very important. I am sure that in practice it will come to be seen as a very important role in holding police and crime commissioners to account.

I commend this protocol. A good job has been done here. I know that my noble friend the Minister will ensure that where and when necessary, with the appropriate consultation, the protocol will be a living document that will be amended as necessary as the years go by.

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Lord Dear: My Lords, when I spoke at Second Reading of the Police Reform and Social Responsibility Bill on 27 April last year, I described the Bill as a crucial step towards a thoroughly modernised police service. I did not say that the Bill would in itself produce that; I described it as a crucial first step. As we all know, the issue of PCCs was an essential element in the Bill. In fact, one could well say that it was the essential ingredient in that Bill, especially in so far as handling police finances and, even more importantly, the operational independence of a chief officer or interference with that.

We all remember and understand the difficulties that we had when Clause 1 was voted off the table, as it were, in Committee, and the difficulties that we had in discussing the role of PCCs in that environment. It was a lengthy and very detailed series of debates, and I will not go into them. They are fresh in our memories. But it became very obvious as we went through that series of debates that there was a need for a protocol to flesh out the detail behind what we meant by some of those terms. I personally welcome it and speak in support of it tonight.

After the General Committee debate, which took place two days ago in the other place, I ran off 23 pages of that debate on my computer and could not find a single word that passed any comment to say that the consultation process was less than robust. The Committee preoccupied itself very much with trying to tease out a definition of proper or improper political interference, which comes very close to what we are talking about tonight. But I could find no trace of any disquiet there about a lack of proper consultation. Indeed, the consultation has involved all the three existing major players; it cannot obviously go to PCCs as they do not exist yet-they have not been elected. But it involved ACPO, the Association of Police Authorities and the Association of Police Authority Chief Executives. I cannot think of anyone else that it could have gone to, and certainly ACPO is satisfied with the procedure and believed that its views were put forward in adequate fashion. I think-although at second hand, and I am subject to correction at this point-that the other two agencies felt very much the same way. So with the greatest respect, I disagree with our own House of Lords Select Committee on the Merits of Statutory Instruments, which said in paragraph 3 of the report:

"Given the constitutional importance of the governance of the police service, the Committee considers that a full consultation might have provided a more complete test of the robustness of the Protocol".

With the greatest respect, I disagree.

7.45 pm

If I had been able to express a view to that committee, I would have said as a one-time senior police officer a number of things. The relationship between police officers and police authorities has always had a potential for discord. It is a matter of a healthy tension between individuals and groups of individuals. Nothing that we do today will change that; it has always been in place. I have experienced some very warm relationships with police authorities and, on occasion, some pretty torrid ones. That was what went with the job, and that

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is how democracy operates in trying to set out a balance. Mostly, of course, good sense reigned and still does mostly; constructive tensions are a good thing, and usually both sides respect each other. If one looks at the history, one can see that the real tensions to date have been few. We have only ever had one-and I referred to it in an earlier debate in your Lordships' House. It concerned Derbyshire, where the balance got so far out of hand in the hands of the police authority that I personally had to declare that force inefficient because it was being starved of funds. So the risks are there, and they always have been there-and of course they will, let us be honest, continue to be there if we have a balance of power shared between the two.

I would have said to the committee that the protocol as drafted, which we are debating tonight, would have been immeasurably useful to me as a chief officer, if I had had that document to hand-and, mutatis mutandis, it would have been just as useful there as it will be in future. I do not think that it can go any further in a description of either political interference or operational independence. That is the view of the practitioners and certainly the view of ACPO.

I refer to two sets of remarks in the House of Commons General Committee of 23 January, first of all very briefly to what Mr Mark Reckless, the MP for Rochester and Strood, said. He said:

"The protocol is a clear and significant document. I should like to put on record my appreciation of all sides of the tripartite, particularly the police".-[Official Report, Commons General Committee, 23/1/12; col. 8.]

More particularly, the Minister for Policing and Criminal Justice, Mr Nick Herbert, said in winding up that it was,

With the greatest respect, I think that that is the correct approach.

There is a pressure point, of course. I do not wish to weary the House with it as it is very obvious and it was obvious all the way through Committee and Report. The pressure point is that when the PCC comes into office he or she will almost certainly ride in on a ticket to address a specific problem or specific problems and will do their best to make sure that they are addressed. The wise chief officer should do his or her utmost to assist that. After all, it is a demonstration of the will of the general public, which all too often has been not exactly suppressed but not exactly clear in the past. Here you have a mandate to address a problem or problems, and so far I have no difficulty with that at all. Presumably, the resources will be put at the disposal of the chief officer but, if that wish or desire by the PCC is outlandish, improper, illegal or ill judged, it is up to the chief constable to try to persuade the PCC to defer from that stated course of action and, if all else fails, to resist it. That is what we have in a democracy, but I do not believe that we are necessarily going to run against that all the time.

I hope that I will not be oversimplifying what I am about to say, but in my professional experience I found that, when push came to shove, political figures drew

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back from getting too close to operational decisions. They will be rubbing shoulders with you when things go well, but when things do not they will be in the background saying in effect, "That is the operational decision of the chief officer". I do not want to oversimplify that, and quite clearly that could be the subject of a debate. However, I make the point in general terms-and perhaps I labour it-that there has always been a constructive tension between chief officers and police authorities and their chairmen, and that should and will continue.

In a sense, I regret that we have to spend time tonight debating this, although I understand entirely why we are doing it. We could hardly fail to do so, given the remarks of our Merits of Statutory Instruments Committee. All I would say is that we should try to let good sense, and a sense of balance and mutual respect, flourish in this projected environment. We know that the Minister will review it, when we have had a chance to see whether it has bedded down. It probably is a meritorious decision to do that at the 12-month point, and perhaps again at the three-year point, to make quite sure that we are picking up problems before they get too large. However, let us try to treat both PCCs and chief constables as mature individuals who can rely on the protocol for guidance, and who know that it can be properly amended, in the knowledge that, so far as we are concerned, the professionals in play today are satisfied with the protocol as it stands.

Lord Imbert: My Lords, you will be relieved to know that my contribution on the Motion will be very brief. I am grateful to the noble Lord, Lord Hunt of Kings Heath, for having secured the time for this debate. I will not go over the ground that he so ably and wisely covered. Suffice it to say that every effort must be made to maintain the global reputation of the British police for being the world's leader in impartial policing, without fear or favour-no matter the colour of a person's skin, their origin, political beliefs or station in life.

So far as the consultation on the protocol for policing is concerned, I repeat the comments that I made when the matter was debated in your Lordships' House many weeks ago. We had been assured and reassured, right from the time when the police reform Bill was introduced, that the fear that the election of police and crime commissioners could be hijacked by political extremists was without foundation. Yet we now find that the Government have had second thoughts, and we now have a protocol setting out the boundaries within which the chief constable and the police and crime commissioner will work. I congratulate the Government on their political courage and good sense in accepting that, perhaps after all, such a protocol is necessary to ensure that a maverick PCC or, indeed, chief officer does not upset the essential balance required for the continued good governance of policing, and that the chief constable's traditional pursuance of non-political, impartial policing is preserved.

I support the regret Motion moved by the noble Lord, Lord Hunt of Kings Heath, but if I may, I will finish with one plea. My final comment is to ask that the Home Office finalise the financial management code-as he who pays the piper calls the tune. I trust

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that this code, after proper consultation, will help to curb any misunderstandings over financial responsibilities and control for all the stakeholders in this new governance structure.

Baroness Hamwee: My Lords, I was a little surprised when I saw the terms of the Motion because having lived through the Bill, as other noble Lords did, it seemed that the issue of a protocol was consulted almost into the ground. However, I realise that there may be a distinction between consultation on the content of the protocol and consultation on the statutory instrument. I should fess up; I am a member of the Merits of Statutory Instruments Committee, but I was not there on this occasion. That committee is always particularly sensitive to the need for consultation alongside there being adequate time for Parliament to consider an order before it comes into effect, so I can understand how this arose.

I wondered whether it may have been that the complaint was not about the time spent on consultation but about the fact that the consultees had not come from a sufficiently wide group of people. I am not sure that it could have been different at the time that the work was going on last year, but the landscape will change. There will be more players in place, and I for one am reassured by paragraphs 43 and 44 of the protocol. Paragraph 43 refers to,

The noble Lord, Lord Hunt, has suggested that that should be a quite early review. That would be useful, because we will then see in office not only the commissioners but the police and crime panels. Police authorities have taken part in the consultation but the police and crime commissioner-I emphasise "crime"-has a wider remit than simply the policing function. I would like to see local authorities, possibly through the panels but in their own right, involved in any further consultation that might take place.

As has been said, this started as a concern about what was meant by "operational". As I understood it from the fringes, there was endless drafting and discussion involving those who were most concerned about it. I heard one of those individuals say that by the end of it he wondered whether there was any need for a protocol at all. However, we have a statutory protocol and, as the noble Baroness has said, that was because there was such a call for it in the House. We are in an interesting position; we have something of a narrative in the order, which is almost a plain English guide to the statute. Regard has to be had to the protocol, but perhaps the Minister can give the House some assurance this evening as to the status of the protocol as against the statute. I assume that the statute must override it if there is any conflict, but I am not suggesting that I have seen any conflict.

As I read this, the protocol deals not just with "what" but with "how". That comes not only from the protocol itself but from Section 79(6) of the Act, which says in the definition of policing protocol that it is a document that makes provision for,

So that has a purpose of its own as well.

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8 pm

One of the players that need to find a way of operating will be the police and crime panels, and I made no secret during debates on the Bill that I would like to see them quite muscular. Their scrutiny role is a function that is being developed across Government and indeed across governance, and I think people's views of what it should comprise are changing-not confined to starkly vetoing an action nor indeed simply holding to account, which probably amounts to getting information into the public domain, but a constructive role. When the noble Baroness was dealing with the Bill, she took that on board and that is reflected in the statute. I would like to see the panels pushing the envelope there as far as they can. The noble Lord, Lord Dear, referred to "constructive tension" and I have written down "creative tension"; I guess it is the same thing.

I use this opportunity to say that I hope the police and crime panels will have sufficient funding to do the job that we expect of them, not be treated as an easy candidate for savings in the police service. They ought to have access to sufficient funding, given that they are succeeding police authorities. They will have a role in budget-making and the budget is intrinsically political-not in the sense of political versus operational but in terms of what it will enable the police service to do.

I, too, wrote down "plain English campaign" in thinking about the approach of the protocol; it can be useful in this incarnation and in future ones, but I do not take the point about lack of consultation.

The Minister of State, Home Office (Lord Henley): My Lords, I appreciate that the motivation of the noble Lord, Lord Hunt, may be a fear of the democratic mandate that the PCC will have but, having said that, I am grateful to him for giving us the opportunity both to have a break from the Welfare Reform Bill and, far more seriously, to consider the finer details of the policing protocol which, last summer and autumn, this House argued was a necessity to secure the operational independence of the police service.

I pay tribute to my noble friend Lady Browning, who took the Bill through this House. We are all grateful for everything that she did then. May I say how grateful I am for the chance to hear her today and how much I wish it were she who was still standing at the Dispatch Box to argue this case? Still, I shall do my best to live up to her standards in dealing with the various questions.

I echo the words of the noble Lord, Lord Imbert, when he said that-I hope that I have his words down correctly-we must do all we can to maintain the worldwide reputation of the British police. Yes, that is our aim and it is what was behind the Act as it went through Parliament, which is why the protocol is so important and why we are grateful to the noble Lord, Lord Hunt, for offering us the opportunity to debate it on this occasion.

The noble Lord put a number of questions to me. I counted up to seven; I might have got that wrong, but he will no doubt intervene if I do not deal with all the points that he made. First, he echoed the Merits Committee's complaints about a lack of consultation, and I will get to that in due course. I noticed those

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wonderful words from the noble Lord, Lord Dear: it was with "the greatest respect" that he disagreed with the Merits Committee. I have a great deal of respect for that committee-we created it in the run-up to the 1997 election, it is a great committee and we always take its views with great respect-but I also note that when someone says that they disagree "with the greatest respect", they are disagreeing in pretty strong terms, and I am grateful to him for that.

I also note what the noble Lord, Lord Hunt, had to say about the Merits Committee's view about the ambiguity of some of the wording, and I will get to that on his sixth point, which was about the protocol not being drafted in legal language and whether it will stand up in court. Again, I was grateful for what my noble friend Lady Browning said about how grateful she was that it had been put in plain English. I assure the noble Lord that the courts are pretty good at interpreting things when they are in legal language, but I am sure that if necessary they are equally good at interpreting things when they are in plain English.

On that small point, I assure my noble friend Lady Hamwee about her interpretation of which came first-the statute or the protocol-that the courts would always have to take the statute first, should there be any disagreement between the statute and the protocol. As my noble friend pointed out, though, there will be no problem.

The noble Lord, Lord Hunt, talked about problems with the turnout for November elections. As he will remember, one of the reasons why they are happening is the delays, possibly those caused in this House, that meant that we had to push back that date, but I am sure that we will still have a very good turnout in due course.

The noble Lord spoke of the fear of undermining the operational independence of chief constables-again, that is something that I will get to as I deal with these matters-and about the fear of greater insecurity for chief constables. The noble Lord's seventh point was again on the question of whether it would be appropriate to have a review in due course, and I hope that I will deal with that in my remarks.

I shall start with what was probably the noble Lord's fourth point: operational independence. We have always been clear about our commitment to the absolute preservation of operational independence. As my right honourable friend made clear in the debate in another place, that is not something that can be defined in law but it is a cornerstone of policing in this country. That commitment has been made both here and in another place on a number of occasions.

I turn to the consultation process itself, which seemed to cause concern to the noble Lord, Lord Hunt, although, as the noble Lord, Lord Dear, put it, it did not seem to cause concern in another place, nor does it seem to have caused concern to anyone else here other than the Merits Committee. Again, though, with the greatest respect I suggest that the committee is wrong; as my noble friend Lady Hamwee put it, it has been consulted almost to death.

The order was not drafted in isolation. It relied heavily on the active engagement of the Association of Police Authority Chief Executives, the Association

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of Police Authorities and the Association of Chief Police Officers, the former Deputy Commissioner of the Metropolitan Police Service, and the deputy mayor for policing and crime and his chief executive in their former capacities as chair and chief executive of the Metropolitan Police Authority and the Greater London Authority itself. I have no doubt that once police and crime commissioners are elected, there will be a need to seek their views on the protocol, but I stress that this document was issued by my right honourable friend the Home Secretary and it therefore reflects her interpretation in the context of the Police and Social Responsibility Act of how the policing landscape should operate effectively. The protocol that we have now had the opportunity to debate and consider is the result of determined negotiations between all those stakeholders, who have a broad range of robust views on operational independence. It is obvious to me that such a range of opinions also extends to debates in another place and to those in your Lordships' House.

I appreciate that the noble Lord-I think this was his seventh point-would like to see a further review of that protocol before the end of 2013. My right honourable friend in another place gave no firm commitment about a review date, but he said that the Government would consult the PCCs although, as the noble Lord, Lord Dear, made clear, we cannot do so until they exist. However, he also stressed that the protocol, issued by the Home Secretary and setting out her expectations of the formal landscape, will enable the public to understand the respective roles and responsibilities of all parties. That process is obviously open to review in the future but no firm date can be given.

Thinking again about the wording of the Motion in the name of the noble Lord, Lord Hunt, who talks about the lack of a "robust consultation process", I would also make it clear that this process has not been rushed in any way. We placed in the Library of the House a draft protocol, in which my noble friend Lady Browning invited Members from all sides of the House, whom she later met, to discuss the text. She then acted on the comments that she received. That engagement with Members of the House would not have been possible without the open-at times frank-approach that she took in reaching out to all sides on a matter in which I know she is considered to be above her colleagues. My ministerial colleagues in the Home Office and I are very grateful to her for continuing that process.

I think these numbers relate to the fourth and fifth questions about undermining operational independence and fears of greater job insecurity. I shall say just a little more about that matter for the benefit of the noble Lord, Lord Hunt. As he reminded us, further orders will come before this House so there might be opportunities for other debates on the affirmative Motions and, no doubt, on some of the negative Motions that the noble Lord will seek to find means of debating as well. One of the key themes that has run through the numerous debates that we have had so far on the matter of operational independence and the safeguarding of the officers responsible is the fact that

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it is very difficult, as my right honourable friend made clear in another place, to define what operational independence is.

Primary legislation and common law provide some clarity on the legal principles that underpin the operational independence of the office of chief constable. For example, Section 29 of and Schedule 4 to the Police Act 1996 require members of police forces to be attested as constables on appointment and set out the wording of the declaration that they must make. Case law sets out the important principles that constables act as officers of the Crown in carrying out their duties, but are not to be regarded as servants of any executive authority, and exercise their powers independently at their own discretion. If the noble Lord wanted, I could cite case law going back to 1611 on that issue. I see that he shakes his head and does not require it at this moment. It also sets out the duty on chief constables to secure the preservation of the peace and uphold the law in their areas in the way that they see fit.

Therefore, striking the right balance in setting some clear boundaries within which we expect the day-to-day relationships between the key parties-that is, the PCCs and chief constables-to operate has been a key point of negotiation. I was grateful for the remarks of the noble Lord, Lord Dear, when he talked about there being possible tension on those occasions but that tension not necessarily being a bad thing. I think my noble friend Lady Hamwee described it as a creative tension. I forget the precise wording that the noble Lord, Lord Dear, used; I think it was "constructive tension". However, I think we would all agree that tension can exist without being a bad thing on those points.

I hope that such assurances, including those of people such as the former Commissioner of the Metropolitan Police and his deputy, who endorsed the protocol alongside ACPO, the Association of Police Authorities and the Association of Police Authority Chief Executives, will be sufficient to remind the noble Lord that we have got the boundaries right. The protocol is written in plain English, which seems to disturb him, but perhaps I will hear on another occasion that he prefers them to be written in another manner. I am certainly satisfied that, in setting those boundaries, there remains enough flexibility in the protocol for it to be the starting point for a much more detailed and public-focused discussion of how to reduce crime and how to make sure that we get the policing service that we want and one that, as the noble Lord, Lord Imbert, put it, maintains its reputation of being one of the best in the world.

I hope I have dealt with all the points put by the noble Lord, Lord Hunt, and those raised by other noble Lords. If I have not, I will write to noble Lords in due course.

8.15 pm

Lord Hunt of Kings Heath: My Lords, I thank the noble Lord, Lord Henley, for his response to this statutory instrument debate and his assiduous attention to detail, which we all welcome. The noble Lord, Lord

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Imbert, put it so well when he talked about the reputation of the British police, which is of course a matter of concern to us all.

The Merits Committee has come in for a little criticism. Perhaps I ought to point out that the history of the noble Lord, Lord Henley, is a little misshapen. I remind him that the Merits Committee was set up after the Wakeham royal commission recommended such a committee, and it was under the auspices of a Labour Government that that royal commission was established. I had the honour of being the first chairman of the committee. I think the point that the committee made was in the context of the London situation. The Government are rushing all these orders through because they want to implement the Bill in London in double-quick time. The problem with that is that it gives less time for the general consultation and process to be undertaken in relation to the orders. Already, I see that the Merits Committee has reported on another order, the Elected Local Policing Bodies (Specified Information) Order 2011, which we will no doubt consider in due course. It is a pity that there has not been a little more time to consider these in general.

The noble Lord, Lord Henley, is able to reassure the House about the operational independence of chief constables. All I say to him is that when the police commissioner has both hire and fire powers and powers over budget, his or her abilities to delve into the operational matters of the chief constables will be legion. We will have to see. I welcome what he said in relation to a review-that the Government could not say when such a review would take place. However, it would be better-I am grateful to the noble Baroness, Lady Hamwee, for her support on this-if such a review was undertaken as quickly as possible.

On the question of language, of course I welcome plain English. I agree that the protocol is very well written. The specific question was whether it could still be used in court. The point made by the Merits Committee is that the protocol was not written in usual legal language. That was the point that I put to the Minister. He reassures the House that he does not think it will be a problem. I am not sure that the courts are used to dealing with plain English, so perhaps it will be a challenge for them.

On the question of turnout, it was a bit rich for the noble Lord to say that it was all your Lordships' fault that the election would take place in the dark nights of November. The Government had another choice; they could have brought it in next May. Not only would that have given your Lordships and the other place a little more time to consider these orders in some detail, but we might have been able to knock on doors in the evening in daylight. As it is, the Minister feels that there will be a good turnout. I certainly hope so and we all have a responsibility to do all we can to encourage a high turnout. However, a November election will not necessarily encourage that.

This has been a very good debate and I thank all noble Lords who have taken part. I beg leave to withdraw the Motion.

Motion withdrawn.

8.20 pm

Sitting suspended.

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Welfare Reform Bill

Report (6th Day) (Continued)

8.27 pm

Clause 134: Supporting maintenance agreements

Amendment 62CZA

Moved by Baroness Hayter of Kentish Town

62CZA: Clause 134, page 105, line 11, at end insert-

"(3) Any such steps taken under subsection (2A) should be consistent with any advice relating to child poverty provided by the Social Mobility and Child Poverty Commission."

Baroness Hayter of Kentish Town: My Lords, we form a select few still in the Chamber. I remind noble Lords that the Child Poverty Act 2010, which established the Child Poverty Commission, was passed with cross-party support. We believe that there is now similar support for the proposal to expand its remit to deal with social mobility. We welcome that move. However, our Amendment 62F seeks to ensure that the commission has a duty, an obligation and a right to advise Ministers so that the fruits of its expertise, research, understanding and work are put at the heart of decision-making. This is not to replace the Government's role in decision-making but to input at the appropriate level into the intelligence available to the Minister, as strategies to tackle child poverty are developed and implemented. Amendment 62CZA seeks to ensure that the child maintenance and enforcement policies similarly do not fly in the face of objective, evidence-based advice. The Child Poverty and Social Mobility Commission may be a very valuable think-tank, academic centre of excellence and great publishing venture but without this duty to advise it will not be guaranteed a voice in Whitehall.

We naturally warmly welcome the Government's Amendment 62JA, which appears to meet our request in Amendment 62K, and which enables Ministers to provide the commission with any resources, including research, which Ministers think are required for it to carry out its functions. Perhaps the Minister will confirm that this will enable the commission to request research directly where it believes that there are important gaps in the data available to it. Will the Minister also outline what might happen if the commission believes that such research is necessary but the relevant Minister does not? While we are delighted that the Government have seen the need for such research, it would be useful if the Minister could also say when exactly he expects the new commission to be established, as we need its input. These amendments are needed to strengthen the role of the Child Poverty and Social Mobility Commission. Amendment 62F is central, not an add-on, to the work of the commission. It would restore the duty for the commission to give advice to Ministers on the preparation of their strategy. The DWP note states:

"The Government believes that policy development should be the responsibility of Ministers ... and should not be delegated to arm's length bodies. The Commission's current advisory role

25 Jan 2012 : Column 1123

inadvertently provides a route for Ministers to avoid accountability if the Strategy proves ineffective by shifting responsibility to the Commission".

It goes on to state that the commission will henceforth only be able to give advice on technical issues around the measurement of poverty and social mobility.

We welcome the strengthened accountability whereby the annual report of the commission will report on progress towards the target. Far from being incompatible with the commission providing advice on the strategy, part of that advice comprises being able to input into Ministers' thinking on matters beyond just technical issues around measurement. A serious commission with quality members and staff will be hard to establish if it is denied the existing duty of advising Ministers. What, after all, will be the point of it as opposed to having this work done by a university department? There is no chance that Ministers would simply delegate development of a strategy to an unelected commission. It is clearly Ministers on whom the ultimate duty to eradicate child poverty falls, and who will be answerable in this House and elsewhere for the success of that strategy. Placing on the commission the duty to give advice to the Government would strengthen its role and status, allowing it to provide the independent scrutiny, intellectual challenge and source of expertise that were envisaged in the original Child Poverty Act, which passed with cross-party support. I beg to move.

Baroness Lister of Burtersett: My Lords, I rise briefly to support the amendment of my noble friend Lady Hayter. However, her case was made on the assumption that the commission will have expertise. The original requirement that commissioners must have expertise relevant to the work of the commission has been taken out by this legislation. Apparently, the Government have argued that, because the commission will be a reviewing rather than an advisory body, the expertise requirement is no longer needed in the schedule. However, as End Child Poverty points out, this makes no sense. Reviewing requires just as much expertise as advising.

I should therefore be grateful if the Minister could give a rather better explanation as to why that provision has been taken out, because it is in danger of weakening the commission. I understand that the commissioners will be appointed through the non-departmental public body appointing process. Can the Minister explain how the process will work in this instance? What type of expertise do the Government believe is necessary for the commission, taken as a whole, to have? How will the NDPB appointment process ensure that the commission has such expertise? We are of course talking about expertise on both child poverty and social mobility. It is perhaps also worth considering not just traditional academic forms of expertise but the expertise born of experience.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, at the start of these two groups of amendments on the child poverty commission, I want to make it clear that this Government are absolutely committed to tackling child poverty. Our child poverty strategy, published in April last year, set out the package of

25 Jan 2012 : Column 1124

reforms that we are implementing to ensure that no child faces a life trapped in poverty. As part of this, we want to create a new and more powerful commission that can assess the progress made as reforms are implemented.

Amendment 62F seeks to ensure that the commission continues to provide advice to the Minister as to how to eradicate child poverty. As noble Lords are aware, the new Social Mobility and Child Poverty Commission differs from the original child poverty commission in a number of important aspects. First, it will have a broader remit that will encompass social mobility as well as child poverty. Secondly, it will for the first time have the power to publicly assess government progress. The previous child poverty commission's role was simply to provide advice to government. The new commission is required to produce an annual report that assesses whether the Government are taking the steps that they said they would in their strategy, and it will therefore have the opportunity to hold the Government to account for the steps that they are taking and point out where they are falling behind. This will ensure that Ministers are still responsible for developing the strategy, as is right, but that there is external examination to ensure that it is being implemented.

Finally, the commission will no longer play a direct role in the development of the Government's child poverty policy. This third change is crucial if we are to maintain our commitment to ensure that unelected public bodies are not established unless there is a clear need for their work to be carried out independently of government. This is one of the three key principles of the review of public bodies carried out by the Government last year. It is the role of the Civil Service, directed by Ministers, to develop policy. This is not a job for external bodies.

We cannot justify establishing a public body to provide advice when there is already a wide variety of ways in which government can access such guidance. Indeed, many of the organisations that we might expect to see represented on such a body provided recommendations on the current child poverty strategy via our extensive consultation exercise. Giving a single public body a statutory power to provide advice to government on child poverty policy also risks undermining ministerial accountability. It offers a degree of scope for Ministers to shift responsibility for their policy to an external body. When publishing its report each year, the commission will have the opportunity to advise the Government on steps that they should be taking to implement the strategy. As an independent body, the commission would be able to respond to government consultations and put points to Ministers, alongside other organisations with an interest. It is a fundamental principle of this Government that Ministers are accountable for the policies and strategies they put forward. Therefore, while we will continue to consult widely on this policy area, we do not believe that the commission should be given a special, statutory role in providing advice.

I can tell the noble Baroness, Lady Hayter, that we are committed to establishing the new commission as soon possible, once the necessary legislative changes

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are made. That means, given that I need to define "as soon as possible", that as soon as the amending legislation has been passed we will begin to put the new commission into place.

If the commission thinks research is required but the Minister does not, whether or not a particular request is granted will be a matter for private discussion between the Government and the commission. The commission will be able to request research directly; there is provision for it to do that.

On the issue of the expertise on the commission, raised by the noble Baroness, Lady Lister, we intend that it have the appropriate balance of expertise in child poverty and social mobility and we agree that a commission without specific expertise in these areas would not be effective in carrying out the functions set out in the Bill. How will we conduct the appointment process? All members of the commission, including the chair and the deputy chair, will be appointed using a fair and open recruitment process which meets the standards required by the office of the Commissioner for Public Appointments.

Baroness Lister of Burtersett: I am sorry to interrupt, but I also made a point about expertise born of experience. I sat on the Commission on Poverty, Participation and Power, half of whose members had experience of poverty. It was one of the most rewarding experiences of my career, because the insights of those with experience of poverty were such that I could not bring to the subject. Will the Government be open to such expertise?

Lord Freud: Yes, my Lords. I hope that I was making clear that our intention is to get people who are experts in the area. It is hard to overspecify what that means, but people in that category could provide a powerful insight. I am not going to write the job spec in detail tonight, but clearly those would be attractive sets of experience for the commission.

Amendment 62CZA would require that any steps taken in relation to collecting child support maintenance should be consistent with advice given by the Social Mobility and Child Poverty Commission. I will stick precisely to the point in relation to the commission rather than straying back into some of the discussions we had earlier this evening. Our view is that the commission should not be involved in developing policy. From that it follows that we do not think that it should develop policy on child maintenance. That is something for which Ministers alone should be responsible-or perhaps responsible for alongside the House of Lords.

Moreover, where payments are reliable and regular, child maintenance provides parents with care with a separate income stream that may improve the lives and life chances of some children in or near poverty. We have concluded that child maintenance payments are estimated to have a small, non-reportable impact on the number of families living in relative income poverty as currently measured and with current data sources.

Amendment 62JA, the government amendment, and Amendment 62K, would both create an explicit provision in the Bill for the Government to carry out research at the commission's request if it so wishes.

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We addressed that issue briefly in Committee. I gave assurances that having that provision in the Bill is unnecessary. The Bill already enables Ministers to provide the commission with any resources, including research, which Ministers think are required for the commission to carry out its functions. However, given that the issue has arisen again, we decided to table an amendment to allay any remaining concerns. The government amendment provides that Ministers have the power to carry out or commission research at the request of the commission if they so wish.

Before I ask the noble Baroness to withdraw the amendment, I make it clear that the Government do not consider any of the amendments consequential. I commend Amendment 62JA.

8.45 pm

Baroness Hayter of Kentish Town: I must respond to the Minister's reiteration of the Government's commitment to reducing child poverty. He will be aware that I shall therefore quote from the IFS study and its prediction that the number of children in poverty, having fallen to its lowest level for 25 years, will, under the coalition Government's policies, rise to its highest level since 1999-2000 by 2020, at which time one quarter of all children will be poor. We of course look to the Government to prove the IFS wrong by making sure that that prediction does not come true.

I am interested that it is the move to get rid of quangos that has led to the desire to remove the word "advice". I think that that is wrong. In addition to needing expertise, on which there is some agreement, the commission needs authority to be able to advise ministers. That is not policy-making; it is an input into policy. Describing its advice as being alongside other bodies devalues it, but the Minister has said that he wants this to be a more powerful commission. If that is the objective, clearly, we support it. We like the change of name and remit. I hope that he can hold to that in setting it up. I guess the great bribe to us this evening, having been told that it would be set up when the Bill was through, is for me to sit down as soon as possible and enable the Bill to be enacted so that the commission can be set up.

I hope, however, that even if the word "advice" will not be there, Ministers and future Ministers will take the output of the commission extremely seriously as they develop policy, not simply in the implementation of it. With that, I beg leave to withdraw the amendment.

Amendment 62CZA withdrawn.

Amendment 62CA

Moved by Lord Freud

62CA: After Clause 137, insert the following new Clause-

"Review of fees regulations

In section 6 of the Child Maintenance and Other Payments Act 2008 (fees), after subsection (3) there is inserted-

"(3A) The Secretary of State must review the effect of the first regulations made under subsection (1).

(3B) The review must take place before the end of the period of 30 months beginning with the day on which those regulations come into force.

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(3C) After the review, the Secretary of State must make and publish a report containing-

(a) the conclusions of the review, and

(b) a statement as to what the Secretary of State proposes to do in view of those conclusions.

(3D) The report must be laid before Parliament by the Secretary of State.""

Amendment 62CA agreed.

Amendment 62D

Moved by Lord De Mauley

62D: After Clause 138, insert the following new Clause-

"Standards of decision-making

Section 81 of the Social Security Act 1998 (reports by Secretary of State and Child Maintenance and Enforcement Commission) is repealed."

Lord De Mauley: My Lords, government Amendments 62D and 67A deal with the requirement on the Secretary of State and the Child Maintenance and Enforcement Commission to prepare reports on the standards achieved in making decisions which may be appealed to the First-tier Tribunal. The duty was introduced in the Social Security Act 1998, and only three reports have been laid before Parliament since then. The reports have added little to drive for change within the department to improve standards in decision-making and they have not generated any debates or wider public interest.

In the past, publication of the report has been fraught with delay because of National Audit Office concerns over the quality of data. The department does not directly collect data on decision-making for the majority of the benefits that it administers and the best data available that would be used for this report are already in the public domain. The data which are publicly available include the monetary value for error figures for most Jobcentre Plus-administered benefits. Similarly, CMEC publishes its accuracy statistics every quarter in the publicly available quarterly summary of statistics. Accuracy figures for benefits formerly administered by the Pension, Disability and Carers Service used to be published in the PDCS annual report and will in future be published in the DWP annual report and accounts. Her Majesty's Courts and Tribunals Service is also already publishing its statistics quarterly, including receipt and disposals by benefits types, outcomes of appeals and outstanding caseload. The report referred to in our amendment does not therefore add anything to the sum of knowledge. It will only duplicate the publication of data that are already in the public domain. To produce further new data in support of the report would add a substantial and unnecessary administrative cost and process for very little gain.

Our commitment to improving the quality of decision-making is met in other more effective ways. The department is working closely with HM Courts and Tribunals Service in the joint appeals taskforce to improve standards in decision-making and, as a consequence, reduce the caseload of appeals. Within the department, Jobcentre Plus has introduced the new national checking team, which was rolled out

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nationally on 31 October 2011. This is in response to a commitment to the Public Accounts Committee to extend the existing independent checking teams deployed in the Pensions, Disability and Carers Service. Its accuracy support teams are already deployed to measure attendance allowance, disability living allowance, state retirement pension and pension credit. The checking teams will examine the end-to-end benefit process, covering all aspects of delivery and focusing on improving overall standards. The aim of the checking teams is to identify performance improvement, not to meet number targets. The current NCT is covering IS and JSA new claims and will expand in due course to cover existing IS, JSA and ESA claims. The full national checking team will be in place by the end of June 2012.

On balance, in the light of all the department's other activities, I do not believe that, even if further resources were to be expended, the reports would provide any additional information leading to substantive improvements that are not already being addressed, for example, through work by the department with HM Courts and Tribunals Service to improve decision-making so that there are fewer appeals, taking note of feedback from the tribunal judiciary and training for decision-makers. We know that critical to the success of welfare reform will be the quality of the assessment and the quality and standards of decision-making. A substantial amount of work has been carried out to ensure that that will be the case. For example, for the new personal independence payments we will be thoroughly testing our processes before implementation in a model office, enabling us to see how they affect the administration of the benefit.

We will start with a phased introduction to new claims only until around the autumn of 2013. While we recognise that this will be only a short period of testing the assessment and its associated processes will remain living tools well after implementation, and we will continually monitor and evaluate them. Perhaps I should also remind noble Lords that we tabled an amendment that will require us to conduct two independent reviews into the assessment criteria and processes and that the first report must be made available to Parliament within two years of the implementation of personal independence payment. The same applies to changes to child maintenance under Amendment 62CA, which ensures that we will report back to Parliament with a review and conclusion based on the review within 30 months. That reflects our belief that we have the right approach and we will evaluate it to ensure that that is the case. The department is currently developing an approach to the evaluation of universal credit which will address the key aspects of universal credit delivery and implementation.

I assure your Lordships of the department's continuing commitment to improving standards. I reiterate that I do not believe that this statutory requirement provides any additional benefit, so we wish to repeal this duty. However, our commitment to improving the quality of decision-making and transparency will not diminish. With those reassurances I ask noble Lords to accept Amendments 62D and 67A.

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Lord McKenzie of Luton: My Lords, I thank the noble Lord, Lord De Mauley, for that extensive introduction to the amendment. The effect of it would seem to be to remove CMEC's duty to report on decision-making standards. The Government judge that this statutory duty provides no particular benefit: first, because the majority of the data is already in the public domain; and, secondly, because the reports have not generated any debate or wider public interest. When the noble Lord introduced the amendment, something he said about difficulties with NAO data rang a bell. There are historical issues around that, which I understand and acknowledge.

I have two questions. If the majority of the data is already in the public domain in other forms, what is included in the minority of the data that is not, and therefore that might be missed? Secondly, the noble Lord went through an extensive list of benefits that might be affected. I would like to be clear about this. The amendment removes Section 81 of the Social Security Act 1998. That covers a range of appeals covered by Chapter 1 in Part 1 of the Act, which will include appeals other than those relating to CMEC. Of particular interest are the data on appeals outcomes in relation to ESA, which have been a particular bone of contention. The statistic that 40 per cent of appeals are successful-I think that that is roughly the latest position-has driven a focus on the process. I would like to be clear about this. Perhaps the Minister will expand a bit on the range of benefit appeals that the amendment seeks to cover.

Lord De Mauley: I wonder whether the noble Lord would mind awfully if I wrote to him.

Lord McKenzie of Luton: My Lords, that would be fine, as long as the noble Lord will concede that if we feel, following that and having read the record, that anything is unresolved, we will bring it back at Third Reading-within the rules, I hasten to add, as the Chief Whip is sitting alongside him.

Lord De Mauley: My Lords, I am now informed that there will be nothing in future reports that will not be available elsewhere. At least that answers the noble Lord's first question. Perhaps an answer to the second is coming.

Lord McKenzie of Luton: My Lords, I am happy to have the answer in writing, as long as we can have it a decent time before Third Reading. That would be very helpful.

Lord De Mauley: My Lords, there has been much talk of the cavalry this evening, and mine has now arrived-at least it would have if I could read it. Decision-making in both the department and CMEC will be repealed. This will cover all benefits. Does that help the noble Lord?

Lord McKenzie of Luton: I think that it may, if I understand the scope of it. Does it mean, for example, that the data that we get relating to appeals and ESA-I cannot off the top of my head remember how

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those data get into the system-will be included? That is a very important statistic and is likely to remain so. If it will be taken out by the amendment, how else will it be covered, and how will it flow through into the public domain?

Lord De Mauley: My Lords, it is publicly available.

Lord McKenzie of Luton: My Lords, I am happy to leave it there for the moment. However, I will read the record. I would like to understand how the data become publicly available and whether the amendment will preclude them being made available by this route.

Amendment 62D agreed.

Amendment 62E

Moved by Lord Adebowale

62E: After Clause 138, insert the following new Clause-

"Condition relating to mental health

In section 8 of the Welfare Reform Act 2007 (limited capability for work), after subsection (4) there is inserted-

"(4A) Regulations made under subsection (1) shall provide that a person assessed as suitable for employment and support allowance by virtue of his mental condition but not currently receiving treatment from a mental health provider service shall be immediately referred to an appropriate mental health provider service and the prime provider shall then ensure that the person is already receiving or now receives suitable mental health employment support.

(4B) The Secretary of State shall issue guidance on what constitutes an appropriate mental health provider service and suitable mental health employment support for the purposes of subsection (4A).""

Lord Adebowale: My Lords, at this late hour I will try to be brief. The noble Lord, Lord Layard, who put his name to the amendment, apologises for his absence; he is at Davos. I am aware that the noble Lord, Lord Freud, expressed sympathy with the sentiments of what I am about to say in support of the amendment. I appreciate that and hope that we can move forward.

I start with a shocking fact; more than 1 million people are on incapacity benefit by virtue of mental illness. The condition may not be curable but it is treatable. Noble Lords may be interested to know what proportion of these people are in treatment. The figure is 52 per cent. This comes from the official psychiatric morbidity survey. It is the number of people receiving any form of treatment. Of those, half receive medication only, without any form of counselling or talk therapy. This tells us everything that is wrong with our current situation. We pay people money because they are sick but we do not have a process to ensure that they get treated. There is not a lot in this Bill that we can do to change that-that is the way it is-but if somebody is drawing benefit because they are sick, they should surely either be in treatment for that sickness or immediately be offered treatment. Anything else is a shocking waste of taxpayers' money, apart from anything else.

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9 pm

It is of course true that, in the course of the work capability assessment, the claimant is invited to bring a letter from their preferred health professional. This is a good thing, but it is not adequate for a number of obvious reasons. Above all, that clinician has not managed to make the person better. It is quite possible that even if the person is getting treatment, the treatment is not the right one, and here is the one chance to address that situation. I urge that in parallel with the work capability assessment that is available for people with mental health problems there be also a professional health assessment-a diagnosis. This amendment proposes that such people are put in contact with proven mental health providers that can provide this diagnosis, be it within the generic context of NHS-commissioned mental health services, such as the already available increasing access to psychological therapy services, or within the work programme, where prime providers have access to specialist mental health employment subcontractors, of which Turning Point is one. I should have declared my interest right at the beginning. Turning Point is a subcontractor, among many other not-for-profit organisations, in the work programme. I apologise to the House for not saying that straight away.

For these people, a key benefit of this approach would be that a person with mental health problems would be diagnosed and treated by the same professional. The diagnosis should be compulsory but, as with all healthcare, the treatment should reflect patient choice. I urge the Minister to go further and give this idea serious consideration and, I hope, produce an appropriate response. The statistics speak for themselves, but I will leave noble Lords with one that is quite worrying: mental health conditions are incredibly costly to the economy and are now the most common reason for claiming health-related benefits, with 86 per cent remaining on benefits for more than three months compared with 76 per cent of other claimants. Those figures come from the Department of Health and the Department for Work and Pensions report Working our Way to Better Mental Health: A Framework for Action. Recent estimates put the cost of mental ill health at £30 billion to £40 billion attributed to lost productivity and NHS costs. I beg to move.

Lord Turnberg: My Lords, in the absence of the noble Lord, Lord Layard, I would like to intervene briefly on his behalf. He spoke eloquently in Committee on this matter, and he is now busy saving the world in the economic forum in Davos, much to our dismay. I do not know exactly, but I have no doubt that he would want to point out that people with mental illness form a very high proportion of those who are out of work and seeking employment. They must be among the most difficult to place in work and among those we must strive harder to help. I recognise that the Government have put in place a system that aims to help with prime providers and so on but, as we have heard, this is of only modest benefit. It would be made so much more effective if, at the same time as being assessed for work and support allowance, claimants could be assessed medically for their mental illness and given the relevant treatment. A person whose mental illness is treated must be much more likely to

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get into work and to stay there. As the noble Lord, Lord Layard, pointed out in Committee, it makes no economic sense for the country, let alone for the people themselves, to leave them out of work because they are not gaining access to the relevant diagnosis and treatment that could make them fit for work. This is a marvellous opportunity when they are being assessed for work for them to be given the opportunity to get the treatment that would make them fit for it. I hope the Minister will look at this amendment as a valuable adjunct to the Bill and will accept it.

Baroness Thomas of Winchester: My Lords, I have a great deal of sympathy with this very practical amendment to a very real problem.

We heard a lot on Monday about taxpayers' money, and particularly about how unfair it is for people on out-of-work benefits to be receiving more from the state for doing nothing than many of those who are in work, paying their taxes. However, we seem strangely passive about the problem of thousands of ESA claimants who are signed off work because of mental health disorders, thus costing the state millions of pounds, and who, as we have heard, are not required or even encouraged to seek treatment.

My noble friend the Minister sent us all a very interesting booklet entitled Models of Sickness and Disability Applied to Common Health Problems, written two years ago by Gordon Waddell and Mansel Aylward, a lot of which I have now read, he will be pleased to hear. We know that mental health problems now account for more than 40 per cent of long-term sickness absence, incapacity for work and ill-health retirement. We learn from the booklet that if current trends continue, within a few years they will be the majority; that the problem is mild to moderate conditions such as anxiety-related disorders, depressive disorders and stress; and, as we have just heard, that the cost of mental illness in the UK is estimated to be as high as £40 billion to £48 billion per annum, the greater part of which is due to sickness absence and long-term incapacity. Finally, we learn that about one-third of the working-age population have mental symptoms such as sleep problems or worries; one-sixth would meet the diagnostic criteria for a mental illness such as depression; but only about 6 per cent of the working-age population actually seek healthcare.

No wonder those who have made more of a study of these statistics than I have have tabled this amendment. However, the jury still seems to be out, according to page 39 of the booklet, on exactly which treatments improve work outcomes, although there is strong evidence that various medical and psychological treatments for anxiety and depression can improve symptoms, clinical outcomes and quality of life. Waddell and Aylward conclude that there is an urgent need to improve vocational rehabilitation interventions for common mental health problems, and that promising approaches include healthcare that incorporates a focus on returning to work, workplaces that are accommodating and non-discriminating, and early intervention to support workers to stay in work and so prevent long-term incapacity.

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We now also have the report Health at Work: An Independent Review of Sickness Absence, by Dame Carol Black and David Frost, published in November last year. They mainly focus on those in work who might well be off sick without the right interventions, and make the point that people with health conditions too often do not receive appropriate early support to remain in work, especially those with common mental health conditions.

I am sure that the noble Lord, Lord Adebowale, will not divide on this amendment at this hour but perhaps he will instead seek a meeting with the Minister to discuss how to take forward this important matter, perhaps together with Dame Carol Black and Professor Waddell. I can quite understand why it is tempting to put something prescriptive into the Bill, but I do not believe this would be the right way forward.

Lord Winston: My Lords, I, too, also promised the noble Lord, Lord Layard, that I would chip in briefly on this amendment. As has been said, he is in a very different place-and I think they are probably all mad there anyway in Davos.

This is actually a very serious issue and I feel very deeply about it. It is a very good example of where there needs to be some joined-up thinking between what happens with welfare and the Health and Social Care Bill. This is one of the concerns that we have: more and more people with various mental disturbances-and of course it is a vast range of disease, much of which will probably not be helped by conventional treatment-becoming a particular problem in the workplace.

I support this amendment on the basis that a great deal can be done for mentally ill people, particularly those with anxiety disorders who are not necessarily severely incapacitated. The right support in the community-particularly, living in the community-is of immense importance. There would be a good chance of saving money for the Government if attention is paid to this area. I do not think that we would wish to press this amendment today but it still requires support even at Report stage.

Baroness Howe of Idlicote: My Lords, I have listened to what has been said and there has been quite a lot of support for the amendment. Indeed, some of the figures are very alarming, including the amount that lack of provision costs the economy. My question concerns how much of what we are talking about in the amendment is available within a reasonable distance of where people with these conditions live. If there is not an adequate supply, which I have a sneaking suspicion may be the case, what are the Government's plans to ensure a reasonable regional, at the very least, supply of this form of treatment?

Lord Wigley: My Lords, I support the amendment and I am very grateful to the noble Lord for bringing it forward. It is important that we do not allow this dimension not to have the necessary attention before this Bill completes its passage. Everyone accepts that mental illness is a widespread challenge and we all

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commit to the need for something to be done. Yet, decade after decade, we hear the same noises being made and we wonder whether progress has been achieved.

As has been said by a number of noble Lords tonight, it is not just for the benefit of the individual-clearly it is to the individual's benefit if he or she can remain in work or get into work with the necessary intervention, help and support-as it is also clearly of benefit to society as a whole and to the economy.

Following on from the comments we have just heard about the regional dimension, I should like to add the rural dimension. It is difficult enough for those with mental illness problems in cities but it is sometimes even more difficult in rural areas where there are not the support networks within anything like reasonable distances. In any thinking that the Government may be doing on this, perhaps that also could be taken on board. Even though this proposal may not find its way into the Bill, I hope that the Minister is in a position to indicate to the House the thinking on the way that this dimension can be taken forward.

Baroness Tyler of Enfield: My Lords, I, too, add my support for this amendment, which was moved very powerfully by the noble Lord, Lord Adebowale. As other noble Lords have said, all we need is a little bit of joining up between some of the important work that has been taken forward by the DWP and Jobcentre Plus, the very laudable intentions of the work programme and the work being promoted by the Department of Health. I have looked at the DoH website and its work in relation to increasing access to psychological therapies. It talks about how it is now much more possible to join up the help being provided to those with mental health problems as regards their anxiety and depression, as well as helping them back into work.

One example of which I am aware involves Relate, the charity in which I have a declared interest, working closely with Mind in the Hull and East Yorkshire region and the Humber NHS foundation trust. Working together, the programme that they are providing for people with mental health problems is helping to tackle their anxiety and depression while, because they have an employment adviser on hand, helping to get them back into work and to stay in work. This is the sort of approach that we should be advocating. It just needs a little more joining up, which is exactly the spirit of this amendment. I also hope that it will be possible to have further discussions on these important bits of joining up between the welfare state and providers in the voluntary sector.

9.15 pm

Baroness Hayter of Kentish Town: My Lords, does not Davos sound interesting? I gather that the Prime Minister is there as well as the noble Lord, Lord Layard, but that Mick Jagger decided not to turn up. The advantage in one sense of the absence of the noble Lord, Lord Layard, is that we have had the privilege of hearing the amendment moved by the noble Lord, Lord Adebowale, who is second to none in his experience of working with substance abusers and those with mental health problems. It is good to have him here.

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The subject of mental health is an important one and has featured a lot in our debates throughout the Bill-in discussions on where and whether conditionality is appropriately applied, in looking at the length of time for which contributory employment and support allowance should be available, and in assessing ways of dealing with the caseload for DLA and how best to introduce and assess the new PIP criteria. In all these we have been dealing with the consequences of the increasing mental problems that have been touched on. We know that the diagnosis of mental health problems has been rising. An NHS study in 2007 found that the prevalence of common psychiatric disorders severe enough to need treatment was between 6 and 9 per cent among people of working age. That means that we are talking about between one in 10 and one in 20 of our fellow citizens.

The consequences of that for the Bill and for the DWP are most obvious in the growth of the number of people eligible for DLA. Since 2002 the rise in the number of claims-which the Minister has frequently cited when making the case for reform of the benefit-has been almost entirely accounted for by those with either learning disabilities or mental health conditions. So, ensuring that employment and mental health treatment services are working closely together would have clear benefits not only-although most importantly-for claimants, but also for the department's own efforts to reduce the number of people forced out of work through ill health. Equally vital will be an attempt to work with employers to help them better understand and equip themselves to be able to use the talents of those who, whether on an ongoing basis or for short periods, experience poor mental health.

I hope the Minister will outline in his response not only how employment-focused services, in particular for those on ESA, are working with mental health experts and ensuring that claimants receive the right treatment, but also what his department is doing to encourage employers to put the right support in place and to take a positive attitude towards workers with poor mental health. If he follows up on the excellent suggestion of a meeting, it would be particularly appropriate, along the lines set out by my noble friend Lord Winston, to include the Department of Health in it. Perhaps we will be able to encourage a bit of cross-Whitehall working on this issue.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, I start by thanking the noble Lord, Lord Layard, who is in a better place, and the noble Lord, Lord Adebowale, who moved the amendment, for all their work on mental health conditions. Last month I had a very good meeting with the noble Lord, Lord Layard, on these matters, so there is an active dialogue. I want to put this into some context. This is an area that I have taken an enormous interest in, and I think that we need to go much further. What we need to realise is that we are right at the beginning of the process of even thinking that for people with these kinds of illnesses, work is a solution and not a problem for them. It is early days in our understanding of what to do and how to do it, but in the years to come we will

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have a really good opportunity to try to lock some of this stuff down. It can be done from several directions, which I want to describe.

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