Prayers-read by the Lord Bishop of Lichfield.
To ask Her Majesty's Government what assumptions they are currently using about what the scale of the deficit will be on 31 March 2012, and how this compares to what had been predicted by the Office for Budget Responsibility at the time of the last budget.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the Office for Budget Responsibility published its most recent forecast on 29 November 2011. Its forecast for public sector net borrowing in 2011-12 is £127 billion. This represented an increase of £5 billion since the forecast produced for Budget 2011. The OBR attributed the worse economic outlook to three factors: the sharp increase in global commodity prices over 2010 and 2011; the impact of the euro area crisis; and the ongoing structural impact of the financial crisis.
Lord Barnett: Actually, my Lords, I knew that. My Question was about assumptions in the Treasury; surely its officials cannot sit there twiddling their thumbs twice a year waiting for the OBR forecast. Is not the major problem that the Chancellor has concentrated to such a degree on the deficit that he has lost track of where that is taking him? The plain fact is that it is a lack of growth that is doing the damage. Now, as we know, the Chancellor has had to extend the balancing of the budget to 2017, and he may well have to extend that further. Many of the Chancellor's friends who supported him, like the IMF and the OECD, are now saying that if the position deteriorates, as it is clearly doing, then he should be more flexible. Would he consider, for example, something that would help in the short term-namely, finding the odd few billion, which would not be very much in relation to the total deficit, in order to kick-start the privately funded infrastructure plans that he has spoken about previously? Would that not at least help to alleviate some of the problems?
Lord Sassoon: My Lords, I shall try to deal with at least some of the noble Lord's supplementary questions. First, there is a process of exchanging and discussing numbers between the OBR and the Treasury under the memorandum of understanding. The details of all communications between the OBR and Ministers will be published in due course on the OBR's website, as they were in the run-up to last year's Budget.
Secondly, on the question of the deficit reduction plan, it is interesting to look at the recent IFS green budget, which does a comparison between the coalition plans and the relatively sober Alistair Darling plans rather than the Ed Balls plans. The comparison shows that up to 2016-17 the cumulative impact of Mr Darling's policy would have been that debt under a Labour Government was £201 billion higher than it will be under the forecast for the coalition Government. As the markets have made clear this week, if we listened to suggestions about making increased spending commitments now, our interest rates would go sky high and our industry would be crippled. We are sticking to our plans, but the private sector will contribute to significant infrastructure investment of the sort that both the noble Lord, Lord Barnett, and I would welcome.
Lord Lawson of Blaby: My Lords, is it not the case that the noble Lord, Lord Barnett, despite his great experience, needs even at his age to learn a little patience? Is it not the case that if there were some short cut to resuming growth, the Government would take it?
Lord Sassoon: My Lords, it is indeed the case. If my noble friend had such a short cut, I am sure he would have told the House what it was.
Lord Soley: Is the Minister not missing the key answer, which he keeps ducking? The Chancellor has frequently said that the debt burden must be reduced and the Government will reduce it quickly. It is actually increasing. The economy contracted by 0.2 per cent in the previous quarter and will go on reducing for the foreseeable future. What has gone wrong? Never mind what other people say, what has gone wrong with the Government's plans?
Lord Sassoon: My Lords, economic growth has been weaker for reasons that include, particularly at the moment, the ongoing eurozone crisis. Inflation has been high but is now coming down significantly from its peak last September. In those circumstances, the automatic stabilisers apply and expenditure goes up. However, we are getting two very different messages from the party opposite, one implicitly urging faster consolidation and the other asking for more expenditure. Which is it to be? This Government will get borrowing down by £147 billion a year by 2016-17. That is what is important.
Lord Newby: My Lords, on Monday, Moody's said that the UK's triple A rating could be downgraded by,
Does the Minister have any idea what Moody's might have had in mind?
Lord Sassoon: My noble friend probably thinks that Moody's have in mind what I have in mind: the policies of Mr Ed Balls. However, the chances of those being implemented are, fortunately, small. Only yesterday, a respected City broker from BGC Partners said:
"Ed Balls can whinge all he likes but you only have to look at a compendium of 10 year bond yields to know that the UK Chancellor, George Osborne is on the right track. For the Chancellor to take his foot off the gas in terms of cutting the debt reduction would be insanity personified!".
Lord Davies of Oldham: My Lords, when it comes to whingeing the Government take first prize. They spend their time blaming either the previous Government or external forces. When will they take responsibility for the fact that they promised to encourage growth and have failed to do so, and promised to reduce the deficit and are failing on that? How much must the British people suffer before the Government change their policy?
Lord Sassoon: My Lords, these are very difficult economic circumstances, in this country and globally. However, to give one example of where growth policies are coming through, there are 60,000 more people in employment than there were one quarter ago. That takes the total number in employment in this country to 29.13 million-a rise of more than 250,000 in the past 18 months. We must not play down the strength of the private sector in the UK economy.
Lord Forsyth of Drumlean: My Lords, will my noble friend confirm that the reason why we have a problem with growth is the huge level of public expenditure that the previous Government incurred at the height of the boom? Will he give the noble Lord a reality check and tell us how much more than our income we are spending this year, and by how much the debt will have increased by the end of this Parliament?
Lord Sassoon: I completely agree with my noble friend. The point is that we will balance the books only because doing so over the five-year period is a prudent way of doing it. By that point the debt will also have started to come down. That is the way that the Government will continue to do it.
Lord Peston: The noble Lord told us all to be patient. I remind him that the great economist Lord Keynes said:
"In the long run we are all dead".
Is the Government's problem not that, having created this air of disaster for the country, no one in the private sector believes that the economy will get going and, therefore, no one has any intention whatever of investing in new equipment while the Government's policies are in place?
Lord Sassoon: No, my Lords, I do not accept that at all. The only disaster is the mountain of debt-the structural position-left by the previous Government. As I have explained, the signs from the private sector, whether rising exports or rising total employment in the economy, are very encouraging. It is very difficult but we have to do everything we can, including keeping interest rates low, to make business confident enough to invest for the future.
To ask Her Majesty's Government what steps they are taking to boost trade with Commonwealth countries.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): UKTI has teams in 20 Commonwealth countries, which help British companies with business overseas and to partner with Commonwealth businesses. These 20 countries represent more than 98 per cent of the Commonwealth's GDP. In addition, Ministers and officials support the Commonwealth Business Council's events to encourage intra-Commonwealth trade and to promote the UK as a trading and investment partner. For example, my noble friends Lord Howell and Lord Green spoke at the CBC's forum in Perth in October and I have to admit that I am a member of the Commonwealth Parliamentary Association.
Lord Empey: The Minister knows that 50 per cent of our trade is conducted with other EU countries. These economies are mature and under great financial pressure. By contrast, the Commonwealth contains a mix of mature and emerging economies, some with significant natural resources and great potential for growth. Not wishing to have too many of our eggs in the European basket and given our special relationship with the Commonwealth, will the Minister assure the House that a vigorous approach will be taken to growing our trade with Commonwealth countries?
Baroness Wilcox: A vigorous approach is being taken by this country to invest in economies wherever we find them. However, to answer the noble Lord's question, yes we are doing marvellous business with the Commonwealth and continue to do so. The developed markets of the Commonwealth represent very good opportunities for United Kingdom businesses. For example, our trade with India continues to rise: bilateral trade in 2010 was up 20 per cent and was worth £13 billion a year. UKTI's activities through our India network of nine offices are building on this. We are moving resources more and more to high-growth markets, many of which are in Commonwealth countries such as India, South Africa, Malaysia and Singapore. However, half our exports go to EU member countries. We will continue to export and do business with every country that we possibly can.
Lord Anderson of Swansea: My Lords, should we not recognise that, with all its advantages and virtues, the Commonwealth is not, and cannot be, a trading bloc because of its very diversity, from the Maldives, with its current turmoil, to India, which has just bought French aircraft over British aircraft? To be realistic, should we not look a little more productively at bilateral relations with India and Australia but also with China?
Baroness Wilcox: Yes, of course. Exports of goods from the UK to Australia-the example given by the noble Lord-were up by more than 30 per cent last year. We are certainly dealing with the European Union countries, as the noble Lord said, and with as many other countries as we can.
Lord Harrison: What evidence does the Minister have that the Commonwealth Business Council has been doing the job that is asked of it of promoting trade intra the Commonwealth? Will she examine the basis of how it is operating to see that what might be useful and successful is actually so?
Baroness Wilcox: We follow very carefully what is happening in all the organisations. I have a list of organisations to do with the Commonwealth which many Members of this House either chair, have chaired or are part of. Certainly, Commonwealth countries also make excellent springboards into other countries, so we gain not just from the countries that are in the Commonwealth but from the countries that they are close to and can give us introductions to.
Baroness Gardner of Parkes: My Lords, is the Minister aware that the strength of the Australian currency and its marked appreciation mean that it should be possible for us to sell more products to that country? However, countries such as Australia are not a soft touch. They want quality goods from Britain and they expect people to be out there promoting and selling them. Therefore, does she not think that we want to be very much on our toes in making the most of the opportunities that exist in the Commonwealth?
Baroness Wilcox: I would have to agree with my noble friend because she is a fine and proud Australian. As I have just said, exports of goods from the UK to Australia went up by more than 30 per cent last year, so I can only presume that the goods we are turning out are of excellent quality.
Lord Wright of Richmond: My Lords, would the Minister acknowledge the role of Her Majesty's Diplomatic Service at all levels, and not just commercial staff, but from heads of mission down to locally engaged staff?
Baroness Wilcox: It is my pleasure to acknowledge that. Everyone is working together. We are able to place our experts from UKTI in embassies and missions, and we are extremely grateful to them.
Lord Young of Norwood Green: Given the importance that the Government attach to involving SMEs in exporting, can the Minister tell us what progress has been made in this area in relation to Commonwealth countries and what the strategy is?
Baroness Wilcox: Many SMEs look first to the nearer markets in the European single community because of the shared regulatory regime and the proximity of them. Therefore it takes extra effort on our part to
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Lord Dholakia: One of the key factors to emerge at the Commonwealth Business Council conference in Perth in Australia was the greater dependency of Australia and New Zealand on trade with the Asian Pacific zone rather than the West. Has the Minister worked out not the short-term but the long-term implications of how this will affect British trade and the British economy?
Baroness Wilcox: Our exports are up everywhere and we are talking to everyone. I just hope that if my noble friend has any more new ideas that we are missing out on he will let me have them.
Asked by Lord Roberts of Conwy
To ask Her Majesty's Government what steps they are taking to maintain and promote economic growth across the United Kingdom as a whole.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): The Plan for Growth, published alongside the Budget in 2011, set out the Government's plan to put the United Kingdom on a path to sustainable long-term economic growth. We are creating the right conditions to enable growth, driven by investment and exports and more evenly balanced across the United Kingdom and sectors.
Lord Roberts of Conwy: My Lords, I am grateful for that very helpful reply. Are the Government fully aware of the growing economic disparities between the regions of the United Kingdom, accentuated by devolution in the national regions, and do the Government agree that, if we are to maintain the constitutional unity of the United Kingdom, we must present a united front in the regions on investment and economic development, otherwise we shall be in grave danger of drifting apart?
Baroness Wilcox: Yes, I agree with my noble friend. That is certainly not something that we want. The Government's primary objective is balanced growth across the United Kingdom. It is worth remembering that the United Kingdom is still one of the biggest economies in the world and that our combined strength has helped us to weather the recent economic turmoil.
Lord Touhig: Since the Welsh Government launched their £15 million economic growth plan in December, they have been inundated with requests for help, so much so that they now plan a £40 million fund to encourage SMEs. But Governments can only do so much: the real job belongs with the private sector. However, as we have seen from the figures released this week, the banks are not lending to their targets to SMEs. Will the Minister tell us what the Government are doing to ensure that companies in Wales can access the finance they need in order to invest and grow?
Baroness Wilcox: Wales is certainly receiving all the attention that we can give it. Wales has its own way of behaving and of running itself, and that is how we think it should be. I would of course mention that we are to have the Silk commission on further devolution for Wales soon, and we shall be interested to see that next year.
Lord Elystan-Morgan: My Lords, does the noble Baroness accept that there is no balanced growth in Wales and that, at the moment, income per head in Wales is about 76 per cent of the United Kingdom average? That clearly shows massive need in both real and relative terms. Does she accept that there must be an altogether new approach to initiatives to stimulate growth in Wales?
Baroness Wilcox: I agree that Wales needs attention; that is why we are having this new piece of work done to find the very best way forward. I hope that by next year, the Silk commission will have come back with good suggestions for Wales.
Baroness Kramer: My Lords, I understand the budgetary framework, but does my noble friend agree that staying within that envelope but moving faster towards the target of raising the starting rate of tax to £10,000 would provide a boost to consumer confidence and demand that would stimulate business and growth more rapidly?
Baroness Wilcox: My noble friend is very brave. As she will remember, the Government's plan for growth is to create the most competitive tax system in the G20, and that is the path we are on.
Baroness Armstrong of Hill Top: My Lords, the Minister will be aware that the north-east is a wonderful place to live, to work and to establish businesses, but under this Government unemployment has risen there more than anywhere else in the kingdom. People in the north-east are beginning to feel that the Government simply do not care about the region. What can she say this afternoon that can help us to begin to rebuild and give young people, in particular, a feeling that there is a future for them in the north-east?
Baroness Wilcox: I am sorry that the noble Baroness thinks that we are doing absolutely nothing in the north-east, because we are very aware of areas such as the north-east which have had industries that have closed and all sorts of difficulties to contend with. That is why the national insurance holiday until 5 September 2013 has been announced; it is why the European regional development funds were allocated to the north of England in the current EU finance round of nearly £1 billion; it is why the £1.4 billion of the regional growth fund to support projects and programmes that promote jobs and growth in particular supports areas currently dependent on the public sector, as the north-east has been, to make the transition to private sector-led growth. We are very aware of the difficulties there; we would be a foolish Government if we did not look to see which are the most difficult areas of the country and which need our best help. We are doing our best, and I hope that she will encourage us.
Lord Cormack: My Lords, my noble friend will remember that in the 18th century, Edinburgh was referred to in cultural and intellectual terms as the Athens of the north. Would it not be a tragedy if in the 21st century, Edinburgh came to be referred to as the Athens of the north for economic reasons?
Baroness Wilcox: It will not be. They are a wily lot up there in Scotland, and it is for the people of Scotland to decide their constitutional future. The Government strongly believe that Scotland is better off as part of the United Kingdom, and I do not think that I can do better than quote an English visitor in 1750, Mr Amyat, the King's chemist, who famously remarked:
"Here I stand at what is called the Cross of Edinburgh, and can, in a few minutes, take 50 men of genius and learning by the hand".
Lord Young of Norwood Green: My Lords, with record levels of unemployment, is the noble Baroness concerned about the performance of the Government's flagship growth policy? The regional growth fund was hugely oversubscribed because of the Government's cuts, meaning that it has created more losers than winners. Will she explain why, of the winners, more than a year after the bidding process began and more than 10 months after the successful bidders in the fund's first round were announced, more than 40 per cent of successful bidders are still waiting to receive their money?
Baroness Wilcox: The regional growth fund has been enormously successful. We are very proud of it, as we are about the number of people who have applied for it. I am sure that it is quite obvious to the noble Lord, as it is to me, that the reason for hesitation from some people is that there has to be due diligence on every bid put forward to make sure that we are not taking taxpayers' money and investing it unwisely.
Asked By Baroness Jones of Whitchurch
To ask Her Majesty's Government what consideration they are giving to the implications of Saturday's arrests of senior News International journalists for the future of BSkyB's broadcasting licence.
Baroness Garden of Frognal: My Lords, this is a matter for the police, who should follow their investigations wherever the evidence takes them. Decisions on whether News Corporation remains a fit and proper person to hold a broadcasting licence is a matter for Ofcom, which is taking its responsibility in this area seriously and is in touch with the relevant authorities. The Government have no role in its decisions.
Baroness Jones of Whitchurch: I thank the Minister for that reply. However, given that it was not just journalists but senior management at the Sun who were arrested at the weekend, and that according to press reports it is now possible that the directors of News Corp could be charged with offences under America's Foreign Corrupt Practices Act, is it not time to review the way in which the fit and proper test applies to those holding broadcasting licences so that the Government have the power to intervene as and when events require it, rather than having to wait for a trigger event, such as a takeover or a referral to the Competition Commission, which is the case at present?
Baroness Garden of Frognal: The noble Baroness raises serious issues but she will be aware that the Government have no power to intervene over whether anyone holding a broadcasting licence is a fit and proper person, and there are currently no plans to change this. By coincidence, the Communications Select Committee will publish a report tomorrow on the future of investigative journalism, which will cover these matters in greater detail. Of course, the communications Green Paper is also coming up shortly, when there will be further opportunities to discuss these issues.
Lord Stoneham of Droxford: Given the self-interested approach of leading politicians in both main political parties to media ownership over the past 30 years, does the Minister agree that, unless this matter is properly independently regulated, the Government have as much chance of getting this right as the Football League has of approving a fit and proper person to own Portsmouth Football Club?
Baroness Garden of Frognal: My noble friend asks a challenging question. He will be aware that it has been difficult for Governments to investigate the media in great detail, but we now have the Leveson inquiry, which, it is hoped, will bring many matters to light. As I said, we will also have the opportunity to discuss this through our own communications paper.
Lord Winston: My Lords, given my noble friend's justified concern about this issue, does the Minister not agree that BSkyB has performed a very important function in British broadcasting, increasingly in cultural as well as in sporting and news events, and that it does an important job in challenging the hegemony of the BBC?
Baroness Garden of Frognal: The noble Lord is absolutely right. It is perhaps all too easy to overlook the fact that BSkyB performs a great service in the country and, indeed, that News Corporation has played a great part in media plurality over the years. It is to the credit of News Corporation that it is co-operating fully in the current investigation.
Lord Trimble: My Lords, is there not an overriding public interest in the continued existence of a free press and does this not apply to all forms of media?
Baroness Garden of Frognal: I absolutely agree with my noble friend. It is essential that we have a free press in this country. It is very much valued. We sometimes have to take the rough with the smooth in some of the ideas and media stories that a free press comes up with.
Baroness Scotland of Asthal: My Lords, first, I thank the Government for finally accepting that Section 58(4) of the Enterprise Act can now be amended. Bearing in mind that fact, does the noble Baroness not believe that it will be important to add the fit and proper person test now, as opposed to waiting until the Leveson inquiry has reported?
Baroness Garden of Frognal: I know that the department is grateful to the noble and learned Baroness for the discussions that it has had with her on these points. The point she makes about the fit and proper person test is that it would require primary legislation and we are not currently minded to make changes to the regime. However, as with the other matters, it will be part of the communications review, and of course we will have to take into account the recommendations of the Leveson report.
Lord Martin of Springburn: My Lords, in recent days, leading members of the media have said that in certain circumstances it is all right to give money to police officers for information. Can the Minister confirm that it is a criminal act for anyone, including journalists, to give money to any serving police officer for private information?
Baroness Garden of Frognal: Indeed, my Lords, I can confirm that.
Lord Inglewood: My Lords, I thank my noble friend the Minister for trailing tomorrow's Communications Committee report, which covers in some depth a lot of the issues that are being discussed now. Although I recognise that, on the face of it, some activities of some journalists who have been engaged by News
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Baroness Garden of Frognal: I agree with my noble friend. We must also bear in mind the power of investigative journalism, which has turned up some stories that have been of great benefit to the country as well as a cause of pain to other people.
Relevant documents: 37th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 14 February.
That the order of commitment be discharged.
Lord Laming: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless a noble Lord objects, I beg to move that the order of commitment be discharged.
Protection of Freedoms Bill
20th Report from the Constitution Committee
18th Report from the Joint Committeee on Human Rights
Relevant documents: 20th Report from the Constitution Committee, 18th Report from the Joint Committee on Human Rights.
Clause 64 : Restriction of scope of regulated activities: children
50A: Clause 64, page 51, line 24, at end insert-
"(2C) The reference in subsection (2B)(b) to day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned."
The Minister of State, Home Office (Lord Henley): My Lords, I shall speak also to government Amendments 54A, 54M and 54N; Amendment 50B, in the names of my noble friend Lady Hamwee and the noble and learned Baroness, Lady Butler-Sloss; Amendment 51, in the name of my noble friend Lord Addington; and Amendment 52, in the names of my noble friends Lady Walmsley and Lady Randerson.
Without wishing to reopen the debate that we had last week, I reiterate that we remain of the position that, where individuals can be properly supervised, they should in certain circumstances fall outside the regulated activity and the necessity for barred list checks. We believe that proper supervision should help to reduce both the risk of improper conduct and of inappropriate relationships developing.
As we have previously debated, the Government have said that enhanced criminal record certificates will continue to be available for activities that will be removed from regulated activity and which involve close contact with children when the scope of regulated activity is scaled back by Clause 64. In a school, that will include, for example, supervised volunteers who instruct children. Enhanced criminal record certificates include information on previous criminal convictions and cautions, both spent and unspent, and any relevant police information held locally. Therefore, organisations can, if they judge it necessary, see the information about behaviour that they need to see in order to reach a judgment on whether to use the person in a particular activity.
Even under the original barring scheme, the law did not require checks for various categories of people who were in contact with children. Organisations and communities must share responsibility for keeping children safe. The scheme was never intended to regulate contact with children outside a specified place, such as contact in a faith or leisure setting. Our intention is to provide additional flexibility for employing organisations and to help ensure that individuals are not dissuaded from volunteering. Such organisations as the Scouts and Girl Guiding UK have made the point that they prefer to supervise individuals when they first join, before barred list checks become necessary. However, as I said, there is no compulsion in the Bill for an organisation to provide supervision. Where it is unable to do so, activities will remain regulated and barred list checks must be made.
In Committee, a number of noble Lords expressed unease that the term "day to day supervision" lacked clarity and that, as a result, employers and voluntary organisations would have difficulty in deciding whether an employee or volunteer fell within the scope of regulated activity. We listened very carefully to these arguments and now aim, through the government amendments, to provide greater clarity on the level of supervision required for someone to fall outside the scope of regulated activity. Under the amendments, the level of day-to-day supervision must be such as to be,
By adding this qualitative description of the level of supervision required, the amendments, coupled with the statutory guidance we are already committed to providing, address the points raised in Committee.
At that stage, and again today, we heard about the particular circumstances of various types of sport, where adults often coach children in extensive playing fields or other wide-open spaces. The requirement that supervision must be,
will give sports organisations precisely the discretion they need in order to decide whether, in the circumstances of their sport, a volunteer-or indeed paid-coach or other helper should be supervised. If organisations want to encourage volunteers without requiring them to undergo a barred list check, they may do so, as long as they work out what would be a reasonable level of supervision in their case, and provide supervision accordingly. If on the other hand the organisation decides that the oversight it provides does not amount to supervision that is reasonable for child protection, it may conclude that the coach is not supervised and so is in regulated activity.
I have already mentioned that we will supplement the provisions of the Bill with statutory guidance, which will further contextualise what we mean by day-to-day supervision. Clause 77 already places a duty on the Secretary of State to provide such guidance, and we are committed to consulting on the form of the guidance. I had hoped to circulate a first draft of the guidance before today, but alas that proved impossible. I hope that the House will understand that it is important to get the guidance right rather than to rush it. We will certainly seek to get a draft out for consultation as quickly as possible.
The Criminal Records Bureau is also committed to producing clear and specific guidance on the new updating service for registered bodies, employers and applicants. While I cannot specify the precise timescale, we have started engaging with stakeholders to understand their requirements, and will continue to work with them to ensure that the guidance produced meets their needs and is communicated effectively. This will be complemented by guidance being developed by the Criminal Records Bureau, which will include advice on just how the current service may be used and an online tool which will enable employers and applicants to understand when a criminal records check is appropriate. In addition, the Government will also be issuing guidance on the broader safeguarding issues.
Given what is already in Clause 77 and the commitments I have made, I shall say a brief word or two about the amendments tabled by other noble Lords that we will also be discussing. I hope that my noble friend Lord Addington will not mind if I anticipate his remarks about Amendment 51 and put it to him that, in relation to that amendment, the ground is already sufficiently well covered. The provision in Clause 77 goes further than Amendment 51 as that clause also places a duty on regulated activity providers and personnel suppliers to have regard to the guidance. In relation to the other guidance to which I have
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I move on to Amendment 50B, tabled by my noble friend Lady Hamwee. She is seeking to probe what we mean by "in all the circumstances". The intention of this wording is that local managers judge the appropriate level of supervision based on the risk of harm to children in a particular setting. Where they judge that risk is lower, they may supervise less. Where it is higher, they would supervise more. That is what is meant by "in all the circumstances". Managers on the ground should always decide in the first instance what to do in any particular case. This phrasing supports them by offering a yardstick for making that decision. It also prevents them using scarcity of resource as a reason for supervising less than would be deemed reasonable in their case, so it is,
which is quite a change from "reasonable" on its own.
I would also like to say a word or two about Amendment 52, tabled by my noble friend Lady Walmsley. It seeks to bring within the scope of regulated activity all those who work in a further education college where any children are studying. It is important to bear in mind that all teaching and non-teaching staff in establishments, including FE colleges, that wholly or mainly provide full-time education to children remain within regulated activity and therefore will undergo a barred list check at entry. In addition, unsupervised teaching, training, instruction, care and supervision of children in FE colleges remain regulated activity, even where the college is mainly for adults. This amendment would go further and bring into regulated activity all work by any staff in FE colleges which provide education to even a very small number of children. As I said in Committee, we believe it is disproportionate and unnecessary to require such individuals to be subject to the same level of checks as those working in an institution wholly or mainly for the full-time education of children, such as a primary school or a nursery.
The Government do not consider it proportionate for the state to require or allow barred list checks generally on activities that entail only incidental contact with children. My noble friend will, no doubt, have more to say about this in due course, but I appreciate the legitimate concerns of the FE sector that it needs suitable safeguarding arrangements. The precise boundaries of eligibility for enhanced criminal record certificates in FE colleges have yet to be finalised, and we will certainly consider ensuring that staff with access to children in FE colleges will be eligible for enhanced certificates. This can be achieved through regulations in due course. It should ensure that employers in FE colleges can continue to receive relevant information on which to make an employment decision, as enhanced certificates detail all criminal convictions and cautions and any relevant local police information.
My noble friend's amendment possibly goes a little too far. I hope that my noble friend will agree that the steps we have taken and are considering are a more
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Obviously it will be for my noble friends to consider their amendments when they come to move them. At this stage, I would like to move the government amendment and listen to the comments from my noble friends and others about both the government amendments and their own amendments. I beg to move.
Baroness Hamwee: My Lords, as the Minister has explained, my Amendment 50B seeks to understand precisely what is meant by his Amendment 50A. I welcome the direction in which the Government are moving, and I hope that I will welcome the guidance as well. As he said, this issue caused some unease among noble Lords in previous debates, and there were some very powerful and very knowledgeable contributions on the last occasion.
My amendment would take out the words "in all the circumstances". There has been reference not only to unease but many times to balance, which in a number of places in this Bill has been the approach taken. However, concern has been expressed that balance in this context may be more dangerous than we would like to think. I am not clear what is meant by "the circumstances" here. Is it a balance between what is required for the protection of children and the burden on those who are supervising?
The Minister has said that it means more than simply "reasonable", and qualifies it-of course, "reasonable" is a qualification in itself. My concern, as he has anticipated, is that to add "in all the circumstances" would reduce the degree or quality of supervision required. It must mean something, otherwise it would simply say "reasonable". I do not think it adds; I fear it may detract. He has explained that it requires local managers on the ground to judge the risk-I think I am right in saying-in the circumstances of the particular activity. It still seems to me that "reasonable" alone would do the job. My amendment looks for confirmation that "in all the circumstances" is not a reference to the burden on those who supervise or who might supervise.
I started by saying that I welcome the direction in which the Government are moving, and I would hate this phraseology to take us backwards from that. I beg to move.
Baroness Butler-Sloss: My Lords, I have put my name to this amendment to the amendment. First, I apologise to the House and the Minister for not having been here at the beginning of his explanation. I share the concern of the noble Baroness, Lady Hamwee, about the use of the words "in all the circumstances". Either it is reasonable or it is not reasonable. People will wonder whether "in all the circumstances" adds something to "reasonable" that might not be entirely clear.
Lord Addington: I shall speak to Amendment 51, which stands in my name. Unfortunately, my noble friend Lady Heyhoe Flint is unable to be here. I am afraid that she is going through a learning curve on this Bill and has learnt the great rule about parliamentary procedure in the Lords that it does not matter how late you stay, sometimes the proceedings just will not get to your amendment.
I thank the Government for what they have said. They have listened to the concerns brought to me through the Sport and Recreation Alliance, which represents all the major sporting bodies. Its concern will probably be mirrored in every body that deals particularly with children and virtually any vulnerable group: that is, we do not exactly know how much authority a person will have over a child, which will change with each sport or activity over a period of time. If you are helping a dancer with flexibility or strength work, it is slightly different from assisting with strength work for a young shot putter. There will still be a very intimate level of interaction and a degree of authority.
Giving those bodies in charge the chance to interact with the Government and to make sure that there is a two-way dialogue means that there will be a better chance of getting this right. I thank the Minister for what he has said and for all the work that he has done on this. However, will he give an assurance that this will be updated periodically? Training techniques in virtually all sports change. Philosophies of engagement with groups of youngsters have certainly changed dramatically and will probably change again. A degree of change and a continuation of flow of information would be good, and what the Government have done is good. It addresses virtually all our points.
Baroness Sharp of Guildford: My Lords, I regret to say that my noble friend Lady Walmsley is unable to be here today and has asked me to speak on her behalf on Amendment 52. The Minister has already mentioned this amendment. I take it from when he talked about the fact that the situation in further education colleges has yet to be finalised, and that the precise application can be ensured in regulations, that there is still some room for manoeuvre.
I should like to take up the two letters that the Minister wrote to my noble friend on 11 February and the other to my noble friend Lady Randerson on 1 February. I believe that it has been circulated to noble Lords. We are anxious that further education colleges should be treated in the same way as schools and that every full-time, and to some extent part-time, member of staff should be subject to the same vetting and barring rules. We were arguing that the staff should have a statutory CRB check. My noble friend has made the point many times as to the illogicality of the two types of institution being treated differently, but I will not dwell on that.
In his letter to my noble friend Lady Randerson, the Minister says:
"We do not consider it is right that, apart from special circumstances such as those applying to fostering and adoption, barred list information should be available in respect of posts
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My noble friend Lady Walmsley and I do not agree that this information is not relevant to the post. We believe that it is relevant to the post if the employer thinks it is: in other words, if the employer thinks that the post, albeit not a regulated one under this Bill, would give the employee an opportunity to develop a relationship of trust with a young person.
Perhaps I may set out a fairly recent example of this, which has been sent to us by the Association of Colleges, involving a caretaker,
"Dismissed for unacceptable conduct towards students aged under 16 years. The issue was reported to the College by the parent of a student who had been told by her child about a man who was known as 'the pervy caretaker' among students at the College. The conduct included inappropriate communications with students on social networking websites; inappropriate text messages to students; meeting-up with students to 'hang out' with them, including in pubs where the students were drinking under age. After an investigation the caretaker was dismissed and the matter referred to the Independent Safeguarding Authority"
This illustrates a point that came up in our discussion last Monday on the amendment tabled by the noble Lord, Lord Bichard. Someone who does not necessarily have teaching contact with children may nevertheless have daily or near daily contact with them. The children see the person around the place and develop trust in them. That person can then pursue them in other circumstances.
Towards the end of the same letter to my noble friend Lady Randerson, the Minister tries to reassure us by telling us that in those circumstances, when appointing someone to a role that used to be in a "controlled" category but is not now, the employer will be able to get hold of the enhanced CRB check. The Minister emphasises that this check will contain not only criminal records information but local police information. That is all very well, but only if previous employers with sufficient cause for concern to refer the matter to the Independent Safeguarding Authority had at the same time informed the police. However, the Minister will know that that does not always happen.
More seriously, I point out to my noble friend that, in providing this information to the employer and leaving the decision to him, the responsibility for a decision that is currently made by expert members of the Independent Safeguarding Authority is transferred. People are trained and appointed to the authority especially for their ability to analyse the risk inherent in the behaviour that is reported to them. There is a considerable risk in leaving it to the employer. Not all employers understand these things as well as the expert members of the Independent Safeguarding Authority. Indeed, what was then the Independent Barring Board was set up in the first place to take these decisions away from Ministers who, until about 10 years ago, had to take the decisions themselves but who did not have the expert knowledge to do so. The decision-making was given to people who do have that knowledge.
Now the Government want to hand these decisions over to people who are amateurs, and, not satisfied with the transference of responsibility, they also plan to transfer to the employer the decision as to whether the supervision of such an employee, to quote the Minister's own amendment,
If that is so, it could be suggested that most college employers will decide that it is simply not possible to provide that level of supervision since the majority of abuse does not take place on the premises but elsewhere-what is called "secondary access". The employer cannot be vigilant in the youth club, the sports shop or the leisure centre because he is not there. If an FE college employer decides that in the light of the opportunity for secondary access he is not able to provide supervision that,
can he designate the role as a regulated one and therefore ask for and be given the barring information as well as the enhanced CRB check? If that is the case, the Association of Colleges, which is so concerned that it has asked us to pursue Amendment 53 through to Report, may be satisfied, even though it is being asked to be as expert as the IBB.
Will the Minister clarify his initial statement about there still being some flexibility in regulations, and answer the specific question as to whether there is some ability on the part of the employer to ask for the enhanced CRB check and the IBB information?
Lord Bichard: My Lords, I do not want to detain the House by repeating any of the points that I made in speaking to Amendments 53 and 54 the other evening, but I do not think that we have yet reached an entirely satisfactory outcome on these issues. I welcome the Minister's commitment to further discussions, which he has repeated to me since that debate. I hope that we will able to have those discussions before Third Reading, because I think there is continuing unease about this issue within the House and among children's charities and the wider public.
Although I know that we trying to reduce bureaucracy, I am beginning to worry that we are in danger of making an extremely complex system even more confusing by the way in which we are distinguishing between places, whether they are specified or not, and organisations -we have heard the distinctions drawn between colleges and schools and between paid and unpaid workers. I hope that we can perhaps move to a much simpler statement. The amendment may not be the right form of words, which is why I welcome the further discussions, but I would like to think that we could say quite simply that all organisations employing adults, whether paid or unpaid, to work regularly with children, in whatever settings, should be able to carry out enhanced CRB checks, and that should be recommended by the department as good practice. Regulated activities and the barring system are an additional protection, but we should have a basic position which ensures that anyone working with children regularly can be checked by the organisation, because that is the only way in
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Lord Harris of Haringey: My Lords, I want to say how much I agree with the noble Baroness, Lady Sharp, but I would want to go a little further than she did. She was applying her remarks very much in the context of colleges and so on, but the principle applies to a younger age group as well. I hope that when the Minister responds to the noble Lord, Lord Bichard, and, I hope, indicates that further discussions can take place before Third Reading, he will consider the points that have been very clearly made.
The Minister has talked about the importance of proper supervision in reducing the risk of improper conduct. He said that it would also reduce the risk of improper relationships developing. The real difficulty in this category is that there will be individuals who have not been checked who will be in close, regular contact with children. They will be supervised, so nothing untoward can happen in that context, but something may happen elsewhere. A relationship may build up. The noble Baroness, Lady Sharp, talked about relationships that were pursued in pubs, with underage drinking, but with younger children the context could be very different. It could be a kick-about in the park or whatever. That is where the difficulty arises.
When we debated these issues the other night, the Minister talked about the proper role of parents. I do not think anyone here doubts that parents have an incredibly important role in this, but parents' main message to children is about stranger danger, and these individuals are not strangers. They are individuals whom the child or young person meets in the context of what is regarded as a secure and safe setting. When the Minister responds, I hope that he will address that issue and how we might take it forward. Can he give us some indication as to whether his concept of supervision includes some means of ensuring that contact is not developed outside, whether by way of e-mails, Facebook or anything else?
Also, there has been a lot of discussion that has muddied the waters about enhanced CRB checks and checks using the information available to the Independent Barring Board. The reality is that 20 per cent of those who are on the lists maintained by the Independent Barring Board have not been through the criminal justice system, so they will not show up through those criminal record checks. The point that has been made about providing a facility whereby colleges, schools or youth clubs can ask if they think it is appropriate for those checks to be made does not necessarily go far enough unless you are able to take on board the issue of the information that is held by the barring authorities.
Nobody is pretending that these are simple issues, but I hope that when the Minister responds he will recognise that they are issues that need further work and that we can try to get this right before Third Reading.
Baroness Randerson: My Lords, the amendment that stands in my name refers to further education colleges. I am afraid that it is an inadequate amendment because it refers to FE colleges and to children. The principles that I will talk about refer equally to sixth-form colleges, which are a separate category, and to vulnerable adults. The principles are exactly the same there.
I thank the Minister for the careful consideration that he has given to the issues that my noble friend Lady Walmsley and I have raised with him. I also thank him for his very helpful letter. I am grateful that he has agreed to a further meeting before Third Reading. My noble friend has already quoted extensively from that letter.
When I met the Minister, I used two examples of people who would not be in a position of supervision, but who would be in a position to build up a relationship of trust, as the noble Lord, Lord Harris, has just mentioned. One would be a learning assistant. Such assistants are in constant contact, but they are virtually never in a position of supervision. It was pointed out to me by the Minister that if they were dealing in any way with care for young people and vulnerable students, they would be subject to vetting and barring. But not all are in that position by any means.
My second example was used extensively last week in debate here in the Chamber-that of IT assistants. Noble Lords need to understand how teaching and learning take place in a modern further education college. I spent 23 years teaching in further education. It is not a simple, classical situation. A great deal of learning takes place, for example, in a learning resources centre, where there might be between 50 and 100 computers. There would be a supervisor-who would be the librarian or the learning resources administrator-but there would be an IT technician there to help. I can assure noble Lords that young people aged 14 to 16 develop a close relationship with IT technicians and regard them very highly indeed. It is that kind of position that could be exploited. Young people do not understand who is in charge-they relate to the people who are friendly with them, have a lot of contact with them and help them. They could not care less who is the boss in the set-up. We have to be very clear that, as the noble Lord, Lord Bichard, mentioned just now, that makes the situation very complex when we are dealing with this kind of problem.
The Government offer reassurance that enhanced criminal records checks and certificates will be available for posts previously covered by the definition of regulated activity but that now fall outside it. I am very pleased that the Government have agreed to consider including staff in further education colleges dealing with children as requiring enhanced certificates. If they decide to do that, it will be in regulations in due course. However, that does not by any means solve the whole problem. It does not deal with the basic point, which is that schools, sixth-form colleges and further education colleges should be treated in the same way. There is no logical reason why they should not be, because there is such an overlap between them.
If schools, for example, have a more stringent regime than colleges, the clever and devious people who target young people will look to the colleges to get the kind of employment that will enable them to establish a position of trust with vulnerable young people, rather than working in schools. This puts colleges at a disadvantage.
In his letter to the noble Baroness, Lady Walmsley, the Minister points out that employers will still be able to request enhanced CRB checks, and that in most cases this will contain the information that led to any barring decision. However, we know-as the noble Lord has just reminded us-that there is no police record in one in five cases of barring. Therefore, the enhanced CRB check will not throw up that situation. In the example my noble friend gave just now, the "pervy caretaker" does not have a police record, so it would not come up on an enhanced CRB check.
The Minister said in his introduction that it would be disproportionate to put this burden on further education colleges because they deal primarily with adults. However, they deal of course with many vulnerable adults, who should be considered in the same category as young children. They also deal with many thousands of children. Further education colleges are extremely large-although you might say that only 0.5 per cent of their students are 14 to 16 year-olds, that is a very large number of young people. I have done a little asking around in the last few weeks, and found that most colleges have at least 100 young people in that category coming into their premises on a weekly basis. That number is larger than for many primary schools, yet we are saying, "Of course, primary schools have to have this protection", while young people in further education colleges will not have the same level of protection.
I urge the Government to take these issues on board and to think again. The noble Lord, Lord Bichard, proposed half a solution. There is further work to be done, but it is a very good start to how we look at this for the future, and I look forward to the opportunity of meeting with the Minister prior to Third Reading.
Baroness Royall of Blaisdon: My Lords, I am grateful to the Minister for his amendments. The Government have taken some steps towards what is needed, but as has been clear from the well informed discussion that we have had this afternoon we are, as the noble Lord, Lord Bichard, said, not there yet. All the arguments have been made powerfully. The own experience of the noble Baroness, Lady Randerson, is invaluable and I was going to say that I very much supported Amendment 52 but, as she herself said, it would need to include vulnerable adults and not just children. I would simply ask the Minister two things. First, in relation to his own amendments, the Minister mentioned guidance. I realise that the guidance is not ready yet, but when it is forthcoming it will be extremely important for the safety of our young people and children. How will this House be consulted, and will we have an opportunity to debate and discuss that guidance?
More importantly, I was very taken by the suggestion of the noble Lord, Lord Bichard, with its very simple solution to a complex problem. Will the Minister
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Lord Henley: My Lords, I thank the noble Baroness the Leader of the Opposition for her remarks, particularly for her endorsement of our search to strike a balance. We are trying to do that. I echo her comment that we are not there yet and I would endorse that. We had quite an extensive debate on this late on 6th February, and no doubt we will have further discussions on this matter at Third Reading. I want to make it clear that I look forward to those discussions. Also, in response to the remarks from the noble Lord, Lord Bichard, I would certainly welcome further discussions with him and others between now and then. It is important that we get these things right in due course and make sure that the right Bill becomes an Act on the statute book, and that we get the right guidance. I give an assurance that there will be further discussions and that my door, as Ministers always say, will be open as much as possible.
I also agree with the noble Baroness, Lady Royall, that it is very important that we get the guidance right. However, I cannot give any assurance as to when we will get it, and I am not sure whether I will be able to get it before Third Reading. As for how this House will be able to debate that, I imagine that the noble Baroness and the usual channels will find a means of ensuring that it is debated in the appropriate manner in due course.
I shall deal with some of the points relating to the three amendments, having given those introductory remarks following my moving of my own amendments. First, Amendment 50B was moved by two lawyers, my noble friend Lady Hamwee and the noble and learned Baroness, Lady Butler-Sloss, who questioned the use of "in all the circumstances". Getting such eminent legal advice thrown back at me causes me some alarm. I am asked just what the phrase means. I think back to the days when I did my Bar exams-the stuff about "reasonable", "the man on the Clapham omnibus" and all that. It seems quite obvious that "in all the circumstances" qualifies "reasonable" in a manner that should be suitable for the people who have to operate this Act, as it will become.
If I may put this in a sporting context, to make it easier for my noble friend Lord Addington, obviously the circumstances will vary whether you are supervising rugby training over a whole area of different rugby pitches according to the different forms of training that are necessary or whether it is boxing. The circumstances will change according to what is being supervised.
The Lord Bishop of Chichester: My Lords, the problem with the phrase is entirely in the word "all". The Minister mentioned the man on the Clapham omnibus. "In all the circumstances" sounds very different from "in the particular circumstances". We are striving to tailor the application of the principles to particular cases. "In all the circumstances" sounds as if it weakens the case.
Lord Henley: My Lords, with all due respect, as one always says to right reverend Prelates, I think that "in all the circumstances" sounds better than "in the particular circumstances". However, I am prepared to take advice from parliamentary draftsmen and other lawyers on whether they think the two expressions have a different meaning or whether "reasonable" on its own would be different. I have a sneaking feeling that we have set a fox running here that we are getting overly worked up about. I see the noble and learned Baroness, Lady Butler-Sloss, laughing at this; if she were interpreting this in a court of law, she would find that "in all the circumstances" was relatively easy to understand and was quite a good qualifier of "reasonable". I certainly do not think that it detracts from the word "reasonable". I hope that the House will accept the amendment, but if others want to come back to it at Third Reading, I am more than happy to continue that debate. I hope that that deals with the probing amendment, as I understand it was, from my noble friend Lady Hamwee.
I turn to the amendment from my noble friend Lord Addington. Again, I was grateful that he welcomed what we were doing. I think that he wanted some assurance that the guidance will be kept updated in due course. I can give that assurance; there is no point in having guidance that stays cast in stone for many years, like the 10 commandments-although actually, they serve us quite well. Colleagues in the Department for Education and other departments will want to ensure that it is kept updated in the appropriate manner at the appropriate time.
I turn to the amendments in the name of my noble friend Lady Walmsley, to which my noble friend Lady Sharp spoke, relating to FE colleges and the question of why they could not be treated the same as schools. I do not want to repeat everything I said in my opening remarks, but I can give some sort of assurance that we will look again-this is important in terms of further discussions-at the idea of enabling FE colleges to obtain an enhanced CRB certificate. We would not necessarily put everyone who works in an FE college into regulated activity, which we consider disproportionate, but we could consider giving them the power to look at where it might be possible to do that. Again, that could be part of the discussions that I hope to have over the coming weeks. I think it is still a matter of weeks before we get to the Third Reading of the Bill.
With the assurance that discussions will continue and we want to get this right, I hope the House will be prepared to accept the amendments that I have tabled here. I hope that we can have further and profitable discussions. I beg to move.
Baroness Hamwee: My Lords, the short answer is thanks. Discussions will continue. I am grateful for the compliment that the noble Lord paid me by putting
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Amendments 51 to 54 not moved.
54A: Clause 64, page 52, line 39, at end insert-
"(3BA) The references in subsections (3A) and (3B)(b) to day to day supervision are references to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned."
Clause 67 : Alteration of test for barring decisions
Baroness Stowell of Beeston: My Lords, in moving Amendment 54B, I will speak also to Amendments 54C to 54H, 54P to 54V, 60 and 61. This group of government amendments to Clauses 67 and 77, and the equivalent Northern Ireland provisions in Schedule 7, deals with barring decisions and barred list information.
Clause 67 provides that a person will be barred by the Independent Safeguarding Authority from working with children or vulnerable adults only if that person has been, is or might in the future be engaged in regulated activity. As my noble friend has already made clear this afternoon and at all stages of the Bill so far, in seeking to scale back the disclosure and barring scheme, the Government believe that it is disproportionate to bar a person if they have never worked in regulated activity and have no prospect ever of doing so. However, having listened carefully to the concerns raised in this House and by organisations such as the NSPCC, we have concluded that where someone has been convicted of a crime on the list of the most serious offences-that is, an offence that leads to an automatic bar without the right to make representations-the Independent Safeguarding Authority should bar that person whether or not they work or intend to work in regulated activity. An automatic bar without representation would apply to convictions for the most serious sexual and violent offences, such as, in the case of the children's barred list, the rape of a child. In these cases, there are no conceivable mitigating circumstances-that is why representations are not permitted-and there can be no question that the person is a risk to vulnerable groups.
Amendments 54B to 54E give effect to these changes in England and Wales, and Amendments 54P to 54S make similar changes to Schedule 7 in respect of Northern Ireland. Amendment 60 is consequential on Amendments 54B to 54E, and Amendment 61 is consequential on Amendments 54P to 54S. The other amendments in this group concern the provision of
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The current drafting requires the Independent Safeguarding Authority to provide to the police information only about whether a particular person is barred rather than the whole barred list.
The police have indicated that they need this information in real time-for example, if they were to stop someone driving a school minibus and needed to know whether they were barred. In practice, making requests to the Independent Safeguarding Authority on a case-by-case basis would not always provide the police with the information in the necessary timescale. Amendments 54F and 54G therefore provide that the ISA must provide to the police the whole barred list. The police will then be able to put appropriate flags on the PNC, and will have immediate access to barring information when they need it. Amendment 54H ensures that this requirement to supply the whole barred list does not extend to information provided to the prison and probation services. Amendments 54T, 54U and 54V provide for the same arrangement in Northern Ireland. I beg to move.
Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Baroness for her clear explanation. I wholeheartedly welcome this amendment, for which we have been calling since the Bill was first introduced. As my honourable friend the Member for Hull North said in another place:
"There is a very good reason why someone who commits a serious offence is barred from working with children-because they pose a serious risk to children. That should mean that they are automatically barred from working with them".-[Official Report, Commons, 11/10/11; col. 228.]
I have to say that I was astonished by the Government's original proposal that a man convicted of raping a child would not automatically be barred from working with children. I am grateful to the Government for listening and introducing this amendment which clearly puts right what was, I believe, a miscalculation of risk.
I have one or two questions for the noble Baroness but I hope not to detain her for long. She will know that the amendment which I tabled in Committee not only reinstated automatic barring but provided for an appeals process for individuals. Do the Government plan to review the existing appeals processes-based on written submission by the individual-to allow for appeals hearings in person, as were provided for by my amendment? How do the Government propose to ensure that there will be a consistent and proportionate approach to enhanced disclosures across all police authorities?
Baroness Stowell of Beeston: My Lords, I am grateful to the noble Baroness, Lady Royall, for her support for this amendment. As I said in my opening remarks, we have listened carefully and are pleased to table this amendment. The only thing that is perhaps worth making clear is that the absence of an automatic bar does not give anybody an automatic right. We have
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As regards the amendment tabled by the noble Baroness in Committee and plans to review the existing appeals process, we are ensuring that representations can be considered in advance. The change we are making to the barring and vetting process will mean that somebody who is about to be employed in a regulated activity, and is therefore subjected to checks of the kind we are discussing, will receive the certificate and have the opportunity to challenge any information that is on it before it is made available to the employing body. Therefore, the opportunity for that challenge is at the start of the process rather than after a certificate has been issued to a prospective employer or organisation for which somebody might volunteer. Representations can include oral representations-they do not necessarily have to make their appeals or representations in writing-but at the moment we are not planning any further changes to the appeals process.
On the noble Baroness's final point about the police process, if I understood correctly, the point that she was making was that this system of ensuring availability of the barred list should be consistent across all police authorities. I can confirm that that is the case.
Amendments 54J to 54L had been withdrawn from the Marshalled List.
Schedule 7 : Safeguarding of vulnerable groups: Northern Ireland
54M: Schedule 7, page 148, line 10, at end insert-
"(2C) The reference in sub-paragraph (2B)(b) to day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned."
54N: Schedule 7, page 149, line 2, at end insert-
"(3BA) The references in sub-paragraphs (3A) and (3B)(b) to day to day supervision are references to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned."
Clause 79 : Restriction on information provided to certain persons
54W: Clause 79, page 72, line 16, at end insert-
"120AD Registered persons: copies of certificates in certain circumstances
(1) Subsection (2) applies if-
(a) the Secretary of State gives up-date information in relation to a criminal record certificate or enhanced criminal record certificate,
(b) the up-date information is advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate, and
(c) the person whose certificate it is in respect of which the up-date information is given applies for a new criminal record certificate or (as the case may be) enhanced criminal record certificate.
(2) The Secretary of State must, in response to a request made within the prescribed period by the person who is acting as the registered person in relation to the application, send to that person a copy of any certificate issued in response to the application if the registered person-
(a) has counter-signed the application or transmitted it to the Secretary of State under section 113A(2A) or 113B(2A),
(b) has informed the Secretary of State that the applicant for the new certificate has not, within such period as may be prescribed, sent a copy of it to a person of such description as may be prescribed, and
(c) no prescribed circumstances apply.
(3) The power under subsection (2)(b) to prescribe a description of person may be exercised to describe the registered person or any other person.
(4) In this section "up-date information" has the same meaning as in section 116A."
Baroness Stowell of Beeston: My Lords, I will also speak to Amendment 55 in the names of my noble friend Lord Addington and the noble Baroness, Lady Royall, and to government Amendments 58, 59, 62 to 69 and 72.
First of all, I should say how grateful I am to my noble friends Lord Addington and Lady Heyhoe Flint, who my noble friend Lord Addington has indicated is unable to be with us today, and to other noble Lords-notably the noble Baroness, Lady Grey-Thompson-for the time that they have taken to talk to my noble friend Lord Henley and me about their concerns about the issue of certificates. I hope that, given the amendment that I am able to move today, noble Lords will feel that it is no longer necessary for them to move the amendment in their names.
Although the intended effect of Amendments 54W and 55 is broadly similar-namely, that a copy of the criminal record certificate should be sent to the registered body as well as the applicant after a specified period has elapsed-their actual impact is significantly different, as I have said. We have listened to the concerns expressed about the single certificate provisions, and we are keen to ensure that there are no safeguarding gaps in respect of those individuals already employed. Amendment 54W therefore provides a facility for the Secretary of State to send to a registered body a copy of a criminal record certificate in specific and limited circumstances.
This facility will apply where a registered body uses the new updating service introduced by Clause 83 and is informed that a new certificate should be applied for-in other words, that there has been new information since the most recent certificate. If the registered body informs the Secretary of State that the individual has not sent to it a copy of their certificate within a prescribed period-we envisage a period of some 21 days -and requests a copy of the new certificate, the Secretary of State must comply with that request.
However, a copy of the certificate will not be sent if prescribed circumstances apply, principally when the individual has challenged the information on the new certificate, which is what the noble Baroness and I were just discussing with regard to the last group of amendments. Any such requests made by a registered body will need to be made in a timely manner-there is provision to prescribe a time limit-to ensure the smooth operation of these arrangements.
Our proposed change will be particularly relevant to large organisations which consider certificates centrally, and which will be able to advise their local branches of any issues arising. This applies in particular to the examples that my noble friend Lord Addington will no doubt draw on in his contribution to today's debate.
We recognise that there may be occasional instances in which an applicant delays providing a copy of the certificate to their employer. The amendment provides a way for registered bodies to see a copy of the new certificate in those circumstances, while still ensuring
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We think our approach is more proportionate than that in Amendment 55, as it focuses the registered body's ability to request a copy of the new certificate when the applicant is already working for them or where the applicant is seeking to cite an existing certificate as part of the evidence that they are suitable to fill a specific role. We have already made provision in Clause 79 for registered bodies to establish when a certificate has been issued to an applicant and whether the certificate is clear. We discussed and amended that in Committee, again thanks to contributions from noble Lords. The amendment means that registered bodies will be able to make appropriate checks for those already working with them. The other amendments in the group are either consequential on Amendment 54W or are otherwise of a minor and technical nature.
We have already discussed the statutory guidance today in a different context. Although statutory guidance on the disclosure and barring arrangements will be limited to the issue of supervision, as we discussed, we will be publishing broader guidance on the new arrangements, which will include the single certificate provisions. That guidance will make it clear to those registered bodies that have requested a new criminal record certificate, having been prompted by the new update system, that they can ask the applicant to provide a copy of their new certificate within the specified period after issue. It will also make clear that the registered body can, subject to certain conditions, approach the Criminal Records Bureau or the Disclosure and Barring Service after that point to request that a copy be sent to it. The guidance will contain details on how to do that. Our guidance will take into account the needs of sporting and voluntary bodies. By that, I mean that we are concerned to ensure that the guidance will be developed in consultation with those who will want to use it, so that they can be as robust as they and we want them to be in safeguarding children.
I hope that I have covered all the issues, but I will obviously respond to any issues raised by noble Lords. I beg to move.
Lord Addington: My Lords, first, I thank the noble Baroness and the entire Bill team for our discussions. As she hinted, my amendment was a result of the sports lobby, which deals with a large number of volunteers in a position of trust and power over vulnerable groups, predominantly children. Those groups and bodies are important in delivering a large amount of recreational sporting and other cultural activity within this country, and are dependent on volunteers. It was the relationship of the volunteer with those groups that gave rise to our concerns.
In the Government's recent sports policy, they are encouraging those volunteer groups to get involved in schools. That is a sensible move, because you get the enthusiasm and up-to-date thinking into schools for them to imbibe sporting culture. If we are to have that level of dependency on such volunteers to provide
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The Minister has given us a framework which we can probably work with. If I was being mean, I would say that half a loaf is better than no bread. I think we have three-quarters of a loaf, which is pretty well baked this time. I thank her for that. However, I should like the Minister to take this opportunity to say exactly what is required of the sporting bodies. Will this be made very clear? Will their minimum standards and best practice be stated very clearly in the guidance? If somebody is wheedling their way into your small sports club and making themselves indispensable but you are not quite sure about them or they will not fulfil parts of the CRB check or are delaying it, will it be made clear when you, as a sporting body, should take some action? We do not want to suspend people unnecessarily. We would like the guidance to cover the delicate interaction with people who give up their time for free to support things that are generally regarded as being for the public good. Therefore, can my noble friend give us further assurances about how the process and the framework within which sporting bodies will work?
My own sport-rugby union-like cricket, has laws, not rules, and the people within it are used to passing down authority from on high. They are well positioned to fulfil this role but if the Government would tell them what to do, that would make things easier for them. I think that the Minister is giving us that sort of information-that is, when you should or should not suspend somebody and what procedure you should go through. We have heard that the guidance is going to be upgraded and if we could be given an assurance in that guidance I would be much happier.
I thank the noble Baroness and the entire Bill team for the work they have done on this. I think that we are in a much better place but I should like to hear a little more about what is going on-possibly even to the point of overemphasis. However, I thank them for what they have done.
Baroness Royall of Blaisdon: My Lords, I was very pleased to add my name to the amendment in the name of the noble Lord, Lord Addington. As he said, it is not a perfect solution to the problems created-it does not address the concern of voluntary organisations up and down the country that individuals with minor and irrelevant criminal histories will be deterred from volunteering by having personally to submit their certificates to organisations, and it could strengthen the concern of groups with a high turnover, such as the care sector, that the bureaucracy caused by eradicating what was a quick and automatic process will mean that key roles are not filled quickly enough. However, I believe that accepting the amendment will provide the best iteration of what will potentially be a messy and bureaucratic process, and I think that the clarification requested by the noble Lord will be important to organisations' understanding of the process.
I also note with pleasure the Government's own amendment. I welcome the fact that, again, they have listened to the concerns of this House. However, I fear that the ultimate result of the changes to the process of CRB disclosure will be a system that is more complex for organisations to administer, and I worry that this could have a stifling effect on our voluntary sector.
I understand that two separate costs will be involved in the new portable CRB checks: a cost for initial disclosure and a cost for an ongoing subscription to update and validate the disclosure on a rolling basis. How do the Government propose to ensure that they do not create a two-tier system in which some individuals pay for only initial disclosure and do not access the new portability benefits by paying for a subscription? Will the Government confirm whether volunteers will be charged for the ongoing subscription, and why are they seemingly preventing the portability of checks between work with adults and work with children? It looks as though employers will have to apply separately for CRB checks and barring information, despite the fact that the Government are bringing the two organisations under one roof through the new Disclosure and Barring Service. Is this the case? Perhaps I am mistaken.
Baroness Stowell of Beeston: I am grateful to my noble friend Lord Addington and the noble Baroness, Lady Royall, for their remarks during this short debate. I start by responding to a point made by the noble Baroness, Lady Royall, about the potential for the new arrangements that we are putting in place to deter people from volunteering or to make the process more complex. I would disagree with that. There is the very clear and simple principle to which I referred a few moments ago that, in putting themselves forward, people will understand that they will be subjected to the necessary checks in order to safeguard young people and vulnerable adults. They will know that they will get the opportunity to see that certificate before it is issued not just to a prospective employer, but perhaps to a small group which is run by people who are volunteers themselves-not a big organisation. I think some people will find comfort in that.
The noble Baroness is right to say that there are some complexities to this wider topic and we have acknowledged that in the course of our debates today. However, we live in a very sophisticated world and I do not think that we should have a system that is not sophisticated enough to ensure that we address those who might put our children at risk. We should also make sure that those who are very able and who would do a really good job working with young children and others are not barred by us having a system that deters them. I understand where the noble Baroness is coming from but I disagree.
My noble friend raised some points about the amendment that we are discussing today. I repeat that we are talking about the single certificate and how a body could check that the person it wants to work with it is suitably cleared. I note what he said about volunteers being encouraged to get more involved in civic society. It could be argued that the new system that we are putting in place will make it easier to
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My noble friend asked again about the guidance that we have referred to already. I absolutely understand the point he is making that the organisations, particularly those that survive on the goodwill of the volunteers who work with them, want clarity in ensuring that they are doing the right thing and know how and when to pursue the checks and how and when to follow them up. I can make it absolutely clear to my noble friend that we will develop the guidance in consultation with the voluntary organisations and the sporting bodies that he has introduced during the passage of the Bill. We will want to outline best practice so that they know when is the right time to pursue an individual and check further for the evidence that they need. For example, if the registered body informs the Secretary of State that the individual has not sent it a copy of the certificate within a prescribed period which we envisage to be 21 days, it would have to wait 21 days before making a representation to the relevant body.
We have listened very carefully to the concerns that were expressed. We want to make sure that the guidance we introduce will provide organisations with the cover that people who are put in positions of responsibility feel that they deserve in order to make sure that they exercise their responsibilities properly. I hope that that provides the assurance that my noble friend seeks.
The noble Baroness asked about costs and charges, and whether volunteers would be charged for updating. I cannot give her a response today, but I will come back to her on that. She asked also about the difference between CRB checks and barring checks. They exist for different purposes. When somebody is employed, about to be employed or is volunteering to do regulatory activity for an organisation, the organisation has a statutory obligation to ensure that an application is made for that person to be checked and for a certificate to be issued. If the activity is unregulated, the organisation can still pursue a check if it wishes. In the process of the application being made, the authorities will determine whether the barring aspect of the check will kick in. It will not be a case of somebody making a specific request for the barring check; it will happen in the course of the process of application. The uncertainty will be taken care of and the decision will be made by those with the necessary information.
I hope that I have answered the concerns and points raised today by noble Lords. I beg to move.
55ZA: Before Clause 102, insert the following new Clause-
"Time limit for decisions involving the public interest
In section 10(3) of the Freedom of Information Act 2000 (time for compliance with request) after "circumstances" insert "provided that it complies not later than the fortieth working day following the date of receipt"."
Lord Wills: My Lords, both amendments in this group were debated in Committee, so I will not detain your Lordships long by rehearsing the arguments again. I am bringing them back because they will improve the Bill by protecting citizens' existing rights to transparency -although they will not extend them-in ways that are consistent with the Government's overall objectives. I am bringing them back also because so far the Government have offered no good reason for rejecting them.
Amendment 55ZA aims to cut down on delays in responding to freedom of information requests, which can often defeat the intent of the legislation. Such delays can be of more than a year. It is in line with the Information Commissioner's guidance that normally an extension should not be needed but where it is, it should not exceed a further 20 working days. Too often, the guidance is ignored. The amendment will make it more difficult to do so.
In Committee, when I withdrew an associated amendment, I asked the noble Baroness, Lady Stowell, to contact the Information Commissioner for evidence about the problems that he had encountered from delays in the process of policing the Freedom of Information Act, particularly in relation to the offence of altering records with intent to prevent disclosure. This is a most serious problem for the Information Commissioner in carrying out his functions in accordance with the wishes of Parliament. I would be grateful if in reply the Minister could tell noble Lords what the outcome of that contact has been.
Amendment 55ZB tackles a consequence of the Localism Act, which will restrict public access to information that the public currently have a right to gain access. As public services currently delivered by local authorities and other public bodies are contracted out-as increasingly they will be under the provisions of the Bill-they will be removed from the scope of the Freedom of Information Act. The amendment would restore the status quo: no more than that. So far, the Government have given no adequate justification for resisting the amendment. The amendment is proportionate. Very small businesses, for example, will not be caught by it. The Freedom of Information Act and regulations already contain exemptions to protect the legitimate interests of business, such as trade secrets or information likely to prejudice commercial interests.
The Government's response in the past-I know the Minister will recognise this-has been that they would prefer to consider these amendments in the light of post-legislative scrutiny of the Freedom of Information Act. I understand that approach. As a delaying tactic, it is pretty good, and on the surface, at least, it looks plausible. However, there are two problems with it. First, the Government's argument would be more plausible if they had not already done what they say they should not do: that is, dealt with transparency in local government piecemeal through the Localism Act and pre-empted the results of post-legislative scrutiny of the Freedom of Information Act. They have done
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The second problem is that, should the post-legislative scrutiny and the Government's response to it conclude that there should be action in these areas, and they may well do that, it is likely to take years before an appropriate legislative vehicle can be found to implement these changes. Your Lordships will be well aware of the complexities of the legislative progress and of how long it takes legislation to come before Parliament. There is no guarantee at all. I will be delighted if the Minister can correct me in her response and tell me that the Government already have plans to bring forward this legislation, but just not in the Bill. I would be delighted if that were the case. The reality is more likely to be that it will take years before an appropriate legislative vehicle can be found. That was certainly the experience of my party when we were in government and I doubt whether it is very different now.
In the mean time, over those years, despite the coalition agreement pledging to increase transparency, the right of citizens to have vital information about public services discharged in their name, for which they have voted and for which they pay, will be weakened, not strengthened. I hope the Government will now take the opportunity that these amendments offer to secure greater transparency in the government of our country for the people we all serve and accept these amendments. I beg to move.
The Earl of Erroll: I shall say a few words because I would have added my name to these amendments if I had been a bit more alert about them. I think they are very sensible. Of the two, I think Amendment 55ZB is probably the more important, although opportunities for delay are always a problem, so I think Amendment 55ZA is sensible.
In the atmosphere we are going into where there is an awful lot of rejigging of authorities and shared services and procurement, there are a lot of shenanigans going on behind the scenes with people trying to wheel contracts this way and that and shuffling them through different routes. The Government might find it quite useful to have some outside eyes keeping an eye on what is going on here and there, not to penetrate commercial secrets or commercial confidentiality, but sometimes some practices are going on that bear closer scrutiny.
I think this could go some way to help open up some areas and possibly to assuage unfounded suspicions. Sometimes people develop conspiracy theories in a completely unjustified way. A freedom of information request could expose the fact that the person is barking up completely the wrong tree, but sometimes it may be justified. I think it is very sensible to include this, or otherwise you will have a raft of things taken outside the Freedom of Information Act that are very useful for keeping an eye on what is really going on in the way that we are putting so much through various other sectors.
Lord Lucas: I quite agree that this is something we need to watch. We have similar problems in the health Bill where, for reasons I entirely approve of, activities
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Lord Collins of Highbury: My Lords, I support my noble friend's amendments, which would make common-sense improvements to the operation of the Freedom of Information Act. I will not repeat the arguments he has made so eloquently, but I would like to raise a few points.
These amendments strengthen the individual's right to freely access public information and the presumption in favour of openness and accountability in public bodies. The democratisation of knowledge and communication through the internet is the most important revolution of our age. People simply do not accept bureaucratic barriers to information any more, and we must have legislation that is alive to responding to new realities. It is therefore essential that the processes for accessing information do not work against the principle that the burden should be on the body providing the information, not on the individual seeking it. This includes the cost of seeking such information and I urge the Government to think again if they are planning to increase charges.
The 40-day maximum cap on complying with freedom of information requests is both simple and workable. As my noble friend pointed out, it comes from the recommendations of the Information Commissioner, who said:
"In cases where the public interest considerations are exceptionally complex it may be reasonable to take longer but, in our view, in no case should the total time exceed 40 working days".
The House has learnt first hand the frustration of delays that can be caused by decisions and successive appeals on the basis of public interest, which no doubt we shall return to when we resume consideration of the Health and Social Care Bill.
We must seize every opportunity to ensure that the process itself never becomes the reason why individuals are denied access to public information. We must also ensure that the principle of public accountability at the heart of the Freedom of Information Act established by the Labour Government is not diluted by changes in the nature of delivery of public services, as noble Lords have pointed out. As my noble friend has said, the public have a right to access information about how their money is spent and I hope the Minister will seize this opportunity to restore the levels of public sector transparency enjoyed before the Localism Bill was enacted.
Baroness Stowell of Beeston: My Lords, I start by making it clear that this Government very much support freedom of information and increasing openness and transparency-there is absolutely no doubt about that. Indeed, I am sympathetic to Amendment 55ZA, moved by the noble Lord, Lord Wills, in relation to the timeliness of public interest deliberations, and his proposal to make the Information Commissioner's recommended best practice a statutory requirement.
Public authorities must answer freedom of information requests promptly. They must not be unnecessarily slow in responding, and any extension to the time limit for responding to such requests should only be claimed where absolutely necessary. As I mentioned to the noble Lord when we debated similar amendments tabled by him in Committee, I have some experience-although not in government-of being on the receiving end of FOI requests that are complex and invoke public interest tests.
As I said then, it is certainly the case that, in general, timeliness in responding to freedom of information requests is good. In 2010, 86 per cent of requests were answered by bodies monitored by the Ministry of Justice within 20 working days. It is also worth noting that in central government time extensions for the consideration of the public interest test remain relatively rare and the proportion of requests which have resulted in such an extension fell to 4.5 per cent in 2010.
Lord Wills: Will the noble Baroness confirm that those figures do not cover local government? Will she further confirm that it is her understanding as it is mine that most of the interests that the citizens of this country have are in local authority functions and not central government functions?
Baroness Stowell of Beeston: I can certainly confirm that the figure I quoted for the extension of requests under the public interest test relates only to central government. As to general requests under FOI, these bodies were monitored by the MoJ. I am afraid that I do not have to hand which bodies they are. The figures do not cover local government.
However, I accept that there is room for improvement, especially where the deadline is extended to allow consideration of the public interest test. The Information Commissioner is watchful of public authorities where timeliness is an issue and has taken effective action in this area. In 2011, the commissioner announced that out of 33 bodies being monitored in relation to timeliness issues, 26 had made sufficient improvement to be removed from his watch list. While further action is required from the remaining bodies, it is clear that the Information Commissioner's Office has been effective in improving timeliness.
The introduction of new statutory deadlines is a potential way of strengthening the Freedom of Information Act, as the noble Lord has put forward, provided that it does not lead to hasty decisions that are not fully informed. An absolute limit of 40 days raises some concerns about the potential for such an effect and therefore we need to give the impact of changes of this type full consideration before their introduction. For that reason, I cannot accept his amendment today.
As the noble Lord has predicted I might say, but not for the reasons he suggests, this is something that I strongly believe should be properly scrutinised and considered in the course of post-legislative scrutiny, which is now under way by the relevant Select Committee
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It is also worth pointing out that I genuinely think that the proposal put forward by the noble Lord, as much as it has merits, requires very careful consideration. I will look forward to his contribution to the process of post-legislative scrutiny that is ongoing.
Amendment 55ZB, again in the name of the noble Lord, Lord Wills, seeks to extend the Freedom of Information Act to information held by contractors working on behalf of public authorities about the performance of those contracts where those contracts are worth more than £1 million. The noble Lord has found support today from the noble Earl, Lord Erroll, my noble friend Lord Lucas and the noble Lord, Lord Collins, on this issue. As the noble Lord, Lord Wills, is aware, the Government have extended the FOI Act and are taking steps to extend it further. We have made an order under Section 5 of the Act extending its scope to, among others, the Financial Ombudsman Service. We have commenced consultations with more than 200 further bodies about their possible inclusion through future Section 5 orders and we intend to consult more than 2,000 housing associations later this year in relation to their possible inclusion.
In addition, Clause 103 of this Bill will extend the Act to companies wholly owned by two or more public authorities, thereby removing the anomaly whereby a company is subject to the FOI Act only if wholly owned by one public authority but not by two or more. I hope that the noble Lord recognises that these are significant changes.
I understand the point that the noble Lord and others have made today that as services are subcontracted out, whether by local government or by other public services which have been mentioned today, the public should not be left short of any information that might be needed to assess the effectiveness and efficiency of those services. But as I mentioned to the noble Lord in Committee when we debated this, even when a service is subcontracted out, it is still the responsibility of the public authority in terms of the accountability for that service to the public. It is the relevant organisation which should be held to account. In the way in which the contracts are constructed, it should be possible for the public to receive from the contracting authority the information that is needed in order to ensure that the services being carried out and paid for with their taxes are actually performing as they would want them to.
As my noble friend Lord McNally stressed last year, it is important to ensure that changes to the way public services are delivered do not undermine our pledge to increase openness and accountability, and there is certainly a challenge to be met here. I would like to restate that our continued opposition to this amendment does not stem from any lack of commitment to the cause of increased openness and accountability. We are already considering this issue and it will be further considered in the response to the Cabinet Office consultation on the draft transparency and open data strategy.
I may have covered this point, but I want also to say to the noble Lord that there is a provision in the FOI Act as it stands that extends its scope to public bodies.
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The Earl of Erroll: My Lords, I have a brief question for the noble Baroness. Is she saying that public authorities should be writing into their contracts a provision that would allow for freedom of information requests, and that is what she is relying on rather than it being put into the law?
Baroness Stowell of Beeston: No, I am not saying that. I am not in a position to go that far because it would take us into an area on which I do not have the authority to speak today. I am making two separate points. One is that a public authority is the body which is accountable to the public for any services that it might subcontract out. In the course of its contractual arrangements with the subcontractor I would expect, in order to ensure it is properly accountable, it should ensure that it is able itself to access the information it needs. I do not think it is proper to prescribe the detail in the way that has been put forward by the noble Lord. For example, it is not clear how the £1 million contract threshold would be calculated. How would additional payments which might take the value over £1 million be taken account of? Different public authorities might take different approaches to valuation. If that happens, the approach will not be applied consistently. I worry that the amendment might be attractive on its face but deceptively difficult to operate on the ground. I am not saying that issues such as this are insurmountable; I merely use this as an illustration of why careful consideration is necessary to ensure clarity for public authorities, the Information Commissioner and users alike.
I have also made the point previously that to comply with FOI requests for contractor information public authorities would need to have access to any information held by the contractor that is potentially relevant in terms of responding to the request. Such a requirement to share all such information with the public authority so that the authority might comply with FOI requests could adversely affect the effective delivery of the contract. Again, I am sure that solutions to this issue exist, but they require careful consideration.
I reassure the noble Lord, Lord Wills, that our opposition to the amendments results from the need to make sure that effective and proportionate solutions are developed. It does not result from a lack of a commitment to transparency or the effective operation of the Freedom of Information Act. I therefore invite the noble Lord-
Lord Wills: Before the Minister invites me to withdraw the amendment, will she answer two questions for the purpose of clarification? The first is in relation to the undertaking that she gave in Committee to contact the Information Commissioner. Has such contact been
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Baroness Stowell of Beeston: On the former of his questions, I am not able to give the noble Lord a reply today, but I will follow it up with him in due course. On the latter, I am not proposing any new legislation; I am referring to Section 5 of the FOI Act, in that it gives us the opportunity and the provision, should we need it, to extend the Act to cover new bodies in the way that we are using it right now. I hope that that answers the noble Lord's question and that he will feel able to withdraw his amendment.
Lord Wills: I am grateful to the Minister for a characteristically gracious and thorough response. I am grateful, too, for the support that I have received from all sides of the House for both amendments. I am sorry that the Government have not taken account of the compelling cases made by the noble Earl, Lord Erroll, the noble Lord, Lord Lucas, and my noble friend Lord Collins on the Front Bench. I note what the Minister said in relation to Amendment 55ZB and my fear that any legislation will create a delay. She referred to Section 5. I am afraid that this only makes my point: the extension of the coverage of the Act under Section 5 to which she referred, and to which the Government always refer as a great indicator of their commitment to freedom of information, was, I have to tell the Minister, work put in train by the previous Government. I was the responsible Minister. It has taken all this time. That work was started in around 2008-I cannot remember exactly when. Four years later, this Government are now able to claim credit for that. The extension would not necessarily cover all the areas that should be covered by my amendment, so if the Minister is relying on that as a mechanism for speed in rectifying this problem, I am afraid that she is just wrong.
I hope that the Government will look again at this issue. I hear what the Minister says and I have no doubt about her personal commitment to transparency, but all the noises that we hear in the media as emanating from Whitehall are of the deep hostility of the entrenched, vested interests of the state to this agenda of transparency. All I can say is that I wish the Minister well in her forthcoming battles with those vested interests.
I do not regard it as part of my role in this House to safeguard the position of Conservative and Liberal Democrat Members of Parliament, but the same cannot be said of the Minister, so I am surprised that she continues to resist these amendments. I wonder if Ministers have really thought through what voters and the media will think of a Government who promise to increase transparency and then restrict it. What will they think about the fact that information about services,
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The noble Earl, Lord Erroll, made an important point about what will happen when all these contracts are let out to private sector companies by local authorities up and down the country. He made the case extremely well and I urge the Minister to look to it. What will happen when those Members of Parliament are berated by their constituents because they are worried about what is being done in their name using their money, and they are told that they cannot have information about it because the Government-that Government of Conservative and Liberal Democrat MPs-passed a law that denied them that information? They resisted every opportunity to accept amendments that would have maintained the status quo and given the public that information. What will those MPs turn round and say to the Ministers who let that through? It is not my problem, but I fear for the Minister that it will be her problem and those of her colleagues in the years to come.
I am much more concerned about a Government who have nobly pledged to increase transparency in the government of this country and are conniving either malignly or through inadvertence in a restriction and a weakening of those rights of the citizen.
However, having said all that, I note the general words of sympathy that the Minister offered for the principles of transparency. I really hope that Ministers can now make good on them. This issue may go no further in this Bill, but it will not go away. Ministers will be held to account for any failure to secure the rights of the British public to gain access about public functions for which they vote and for which they pay. With those words, I beg leave to withdraw the amendment.
Clause 102 : Extension of certain provisions to Northern Ireland bodies
55A: Clause 102, page 88, line 35, at end insert "which may set conditions on republication or communication of the data to third parties"
Lord Sutherland of Houndwood: My Lords, the amendment is in my name as well as that of my noble friend Lady O'Neill of Bengarve. She has already given her apologies to the Front Bench. Having sat through two long days on Report, she finds that her commitments can no longer be put off and are subject to the vagaries of how we put our business together in this House. I am sure that noble Lords would have had a much more precise, analytic and forensic speech from her than from me, but I will try to raise the points that I believe she wished to put and express the concerns that I share with her. Those concerns are shared by the wider university community in the UK. I believe that they are grateful to the Minister for the time that he has taken to meet them and to talk to them about some of these issues.
That being so, there is a shift in atmosphere from the previous amendment because I wish to focus on the implications of the Bill for research and research data sets held significantly by universities and public research institutions.
Research is an international and very competitive business. There is a risk that some of the provisions of the Bill may undermine the competitiveness of much of our excellent research in this country. That is unintentional, but I hope that I can demonstrate that there are some difficulties that need to be resolved.
The specific Amendment 55A is a modest suggestion that any licence for reuse of data sets may have conditions attached to it following the comments of those whose data sets they are. That is a modest way of protecting the interests of our researchers and the research community and, more broadly, UK plc.
The impact of the Bill as it stands will be such as to fall on both individual researchers and on institutions. In the case of individual researchers, it will change behaviour. If you change the rules about how research data are to be treated, you will change the behaviour of researchers. They are pretty clever people, so you need to watch out. Beyond that, there are more serious implications.
It may well be that the provisions of the Bill result in activities that are inimical to and, indeed, unintentionally unjust to individual researchers. The data set, for example, may well have been built up over a long period and involve substantial career commitment by individuals. If you spend your time on large data sets in particular, that is a major-or indeed a lifetime-commitment. The data sets may well have been built up involving the distinctive, significant and, on occasion, unique skills of the individual researcher. I am not quite convinced that the Bill has taken that sufficiently into account. It will certainly be inimical to career development and commitment-and, indeed, in terms of the opportunity costs-in respect of the work of individual researchers. They take time, they do this rather than that, and they use the skills they have, which may well be unique and very distinctive.
In the case of institutions, there clearly may well be problems where a home or sponsoring institution has invested significant resources in the data sets or in building them. As head of more than one such institution, I know that huge resources are invested to build appropriate data sets, in terms of time, space-which is very important and expensive-individual members of staff and money. These are the commitments the institution makes, and there is a risk that they would be set back dramatically despite the effort and the commitment involved. Equally-this point has been made in previous discussion but it is still there-the institutions may well have commercial interests in the research and data sets in question. Beyond that, we fund universities in such a way that the research assessment exercise depends very significantly on the uniqueness and distinctiveness of research. If the data sets that are the foundation for these are too easily available, that sets at nought the efforts of those who worked on them; and makes it easy for those who did not to pillage those data sets. Academics on the whole are nice people, but when it comes to this kind of competitiveness, all rules are set aside.
There is one consequence that I am sure is unintended and which relates to the previous amendment-although not perhaps in a congenial way. I declare, unusually, a future interest, which I may have if this legislation goes through. As I understand it, one of the ways of avoiding the data sets moving out too quickly and in an unregulated, uncontrolled fashion is to have co-ownership with some private sector activity, firm or company. My interest would be that I might set up such a company, the sole purpose of which would be co-ownership of data sets with universities and research interests. I could become very rich-but being the chap I am, I would dedicate all the money to a charity to support research in universities. That is one possible way of beginning to avoid the implications of the legislation as I understand it. This is partly jocular but it is more than that. Ingenious people are out there and will find solutions to retain data sets that they, for good reason, believe are important. This is not miserable secretiveness, this is how research operates. This is how the competition deals with those who are involved in research.
Finally, I believe there is a difficulty in identifying what data sets will fall under this Bill as currently formulated, if it becomes law. What will count? I give the House one example, just as a test. In the description, decoding and understanding of the structure of DNA, Crick and Watson did excellent and magnificent work in Cambridge which was properly recognised with a Nobel Prize. Yet the missing piece in the jigsaw was here in London, with Professor Maurice Wilkins and Dame Rosalind Franklin at King's College London. She is now at last being recognised for her part in this. The data sets of material that she had built up using techniques of electron microscopy were, when they were available to Crick and Watson on a shared basis, what put the final piece of the jigsaw in place. The picture became clear to them and they could move ahead.
I do not think that these data sets would be ruled out under the definitions given in the Bill, because they are simply printings that you could look at. They are not analysed or pre-digested and there is no interpretation given. If they had been requested belligerently by Crick and Watson, they could have saved themselves the price of a rail ticket to London. Your Lordships can see the implications. What counts as a data set, when Rosalind Franklin had created this data set that made all the difference to what has changed the course of life for all of us? I believe there are questions about the definition of a data set because the Bill is really meant to deal with other issues initially but, as it so happens, it is now being applied to research and research data sets in some of the best institutions in this country. I beg to move.
Baroness Brinton: My Lords, I shall speak to Amendment 56, but in so doing I start by expressing my support for the amendment tabled by the noble Baroness, Lady O'Neill, and the noble Lord, Lord Sutherland. I will also be incorporating some of the points that the noble Baroness, Lady Warwick, would have made had she been able to be in her place, but for exactly the same reason as the noble Baroness, Lady O'Neill-the unfortunate and substantial delay in getting to this-other commitments have meant that she needs to be elsewhere in the Palace of Westminster.
I also want to thank the Minister for the helpful meetings with him and his officials on the complex subjects of universities, the publication of their research and the implications for the practical working of the Freedom of Information Act. In Committee, I outlined a number of problems that universities face that are not analogous to the use of FOI in non-research areas of higher education institutions, not least because of the size, duration and complexity of many research contracts. Universities are mindful of their duties to respond to FOI requests elsewhere, and in the main they absolutely do. Also, the universities that we have talked to about the problems facing research and FOI are clear that this is not special pleading for the sector as a whole over freedom of information. Nor do they support any institution that does not comply with FOI requests in the mainstream.
The issues here are quite specific. They are about whether the exemptions currently outlined in the Information Commissioner's guidance to the higher education sector can be effectively applied, given the nature of research and whether, in the case of commercial partners, it might give rise to suspicion by those partners that their own confidential data might be seen by others following an FOI request. In Committee, the Minister asked for evidence of where the current exemptions do not apply. Here, from the Information Commissioner's guidance to higher education institutions-which, for brevity, I shall refer to as HEI-are a handful of examples that researchers and their universities have told us really need clarification.
The guidance on Section 22 refers to information intended for future publication. The information is exempt if it is intended for future publication and it is reasonable to withhold the information until that point, subject to the public interest test. While this will certainly apply to research data which an HEI intends to publish, provided that withholding the information is reasonable, it will not apply if there is no intention to publish the results at the time the request is made, which, as the ICO guidance makes clear, is the relevant time for him.
In general, HEIs would expect the data supporting research conclusions to be published, or at least to be available to others, when the conclusions themselves are published. However, in the case of longitudinal studies, the decision to publish may not be made until a late stage in the study, not least because it is not clear what will be reported, or how. Moreover, usually the material is published in the form of a peer-reviewed article, which is often only the tip of a much larger iceberg of data that are not published. I am mindful here of the specific example that my noble friend Lady Sharp gave us at an earlier stage of these proceedings about the very complex data set that she managed for decades, which would certainly fall into that last category.
Would the Minister clarify that the exemption does not specify that the publication needs to happen within a very limited time period? It could apply to long periods, including years, which may be acceptable in some specific cases-for instance, where research is at an early stage.
Will the Minister also acknowledge that in the case of longitudinal studies the decision to publish may not be made until a late stage of that study, not least because it is not clear what will be reported and how? Will he confirm that normally the public interest will favour the completion of research before publication of the data on which it is based, whether that is intended or not?
In another example, Section 36 of the Act is headed, "Prejudice to effective conduct of public affairs", and states:
"Information ... is exempt ... if, in the reasonable opinion of a qualified person, disclosure ... would ... prejudice ... the free and frank exchange of views for the purposes of deliberation, or ... otherwise prejudice ... the effective conduct of public affairs",
subject to the public interest test. Again, while the free and frank exchange of views may be necessary as part of the process of building up research results-for example, where a team of researchers is involved, sometimes over many institutions-and it is an essential part of peer review, as was recognised in McLachlan v ICO and MRC, this does not apply comfortably to research data that have been gathered, perhaps over a long period of time, for the purposes of analysis by the researcher himself as opposed to exposure to others. Nor is it obvious that the carrying out of research by HEIs, which are not arms of government, falls within the "conduct of public affairs".
There are also practical difficulties for HEIs in relying on this exemption. The qualified person is usually the vice-chancellor, and involving the vice-chancellor may be a disproportionate requirement if it is simply understood that research information is entitled to a temporary period of embargo prior to publication of the research conclusions on an as yet indeterminate future date.
Will the Minister explain how a,
can be applied to the collection and generation of research results at a stage prior to peer review or before discussion with third parties is envisaged? His clarification would help to deal with the fact that the current case law on this applies only to peer review. Will he clarify that university research activity falls within the concept of the "conduct of public affairs" and to what extent the vice-chancellor as the qualified person would need to be involved to defend a decision to use this exemption, given that often universities employ many thousands of staff, most of them research staff and teachers? Will he undertake to look at the mechanism underpinning the use of the exemption, subject to the recommendations of the Justice Committee?
Another example is in Section 38, entitled "Health and Safety":
"Information is exempt ... if ... disclosure ... would",
subject to the public interest test. This will apply in cases where disclosure may result in the intimidation of researchers such as those involved in the use of animals in research, which we have seen shocking details of in the press, or harm arising from the public's overreaction to misleading and incomplete
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This debate has shown that the issue is sufficiently important to justify looking more carefully at the legislation at the post-legislative scrutiny stage. Universities should not be required to try to bend exemptions that were not designed specifically for the purpose. Doing so means that universities and individuals are required to spend disproportionate amounts of time and money on expensive advice to try to make arguments to apply existing exemptions. My worry is that this adds up to a potentially disproportionate regulatory burden and, to be frank with the House, a waste of public money, given that most research grants are funded from the public purse. For this reason, I am pleased that Universities UK is calling for an independent review of the operation of the freedom of information in universities. It will form part of its submission to the process of post-legislative scrutiny that is being undertaken by the Commons Justice Committee.
I look forward to hearing from the Minister on the questions that I have raised about the complexities that surround the exemptions for universities, and whether they are met by the guidance from the Information Commissioner.
Lord Lucas: My Lords, before I speak to my amendment in this group, may I first say that I hope my noble friend will treat the points raised by the noble Lord, Lord Sutherland of Houndwood, and my noble friend Lady Brinton with seriousness? It is clear that in an internationally competitive environment it is very important that people have confidence in the proper protection of research databases.
I disagree with both amendments. The amendment moved by the noble Lord, Lord Sutherland, would blow a hole below the waterline of this clause and would certainly destroy all my attempts to get other information out of universities. The amendment spoken to by the noble Baroness, Lady Brinton, misses important points on the other side. It is terribly important that data become available once results have been published. Many of these programmes go on for a long time. Because we intend to use the data in a whole series of publications over the next 20 years, we will never let them go. However, it must be possible for people outside a research group to criticise the results as they are being produced or false conclusions will be dropped into science and never properly got at. To pick one example, given by the noble Lord, Lord Sutherland, the inspiration of Crick and Watson had to be combined with the meticulous work of Franklin. Without that combination and the data being made public, the discovery would not have been made.
Lord Sutherland of Houndwood: On a point of order, it was information shared between research colleagues in two different institutions. In an atmosphere that is perhaps not quite as common today, it was willingly shared.
Lord Lucas: I understand and I remember from reading biographies that that was the case. None the less, the data were shared. To take an example from
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My amendment is not on the same subject; it concerns technical bits of drafting in the same clause. I very much welcome the determination to provide greater access to data sets. It is something that I have struggled with, particularly with universities. All the universities that send me data stick copyright notices on them, which I studiously ignore. They have yet to sue me for it, probably because they have better things to do. Alternatively, I proposed as a remedy to one university that, if it insisted on its copyright notice, I would automatically generate an FOI exemption for every one of my users who wanted to access the data. The university thought that a number of 10,000 users a day was getting a bit large.
It is important that we understand that, when information is released under FOI, it can be passed on and made public; and that the generating institution does not retain some sort of control over it merely on a whim. I can understand why that might be the case if the material comprises something done under a publication scheme and is paid for, but otherwise it is very important that the information can be circulated whether in news media or in publications such as mine -the Good Schools Guide-or in many other applications.
I do not see why the proposals in the Bill do not go further and why they are restricted to data sets. It is common for all kinds of information released under FOI to be accompanied by a copyright. However, it is often obvious from the information that it has no conceivable commercial value to the public authority. A requester may have obtained a policy that he or she wants to publish on a website which demonstrates alleged shortcomings in an institution; for example, it may show that a decision has been taken without proper consideration of the consequences. The requester may want to write to Members of this House about the information that has been disclosed. Why should they be prevented from doing so by a copyright notice? It seems to me that the principles we are setting out in this clause should go further.
My second concern is about the definition of "data set", which I believe is unjustifiably narrow. The Cabinet Office carried out an open data consultation which sets out admirably ambitious objectives for the greater use of data sets. Many collections of data currently gathered by public bodies which may be essential to revealing the inner workings of government do not seem to fall within the legal definition of a data set as set out in Clause 102(2). Any electronic collection of data which is the result of analysis or interpretation
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