Special guardianship orders are an increasingly popular “permanence” option for children. However, they remain a relatively new legal status and special guardians are a group about which the Government have limited data. In particular, there is insufficient information about the way in which special guardians adjust to their new caring arrangements and how this may impact on an individual’s ability to remain in the labour market. I hope that I can reassure the noble Baronesses, Lady Massey and Lady Drake, by saying that we believe that it is essential to understand the issues that are faced by this group in order to ensure that they receive the support that is appropriate to address their needs. For this reason, my department, the Department for Business, Innovation and Skills, will undertake research into kinship and friendship carers and special guardians, and their participation in the labour market. We have already started to scope this, liaising with the Department for Education.

I recognise that research is not the same as support, but it is the first crucial step towards understanding what policy interventions would be most appropriate to meet the needs of these individuals. I hope that this reassures the noble Baroness and I ask her to withdraw her amendment.

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Baroness Massey of Darwen: My Lords, I thank the Minister for that response and other speakers for contributing to this short debate. I am delighted to hear that the Minister has instigated research. There is an awful lot of research around already on this issue, so I hope that it will not be too lengthy. A later amendment from my noble friend Lord Stevenson suggests, I think, one year of probing and research. I do not think that we need a year to solve this one. The organisations that we have mentioned already have a wealth of data on the problems, statistics, anecdotes and case studies of family and friends carers. Therefore, I hope that any research will build on the existing research, will be carried out quickly, and that something will be done very quickly for these people who are saving the state lots of money, as has been said.

More importantly, these carers are saving children from disappearing down various plugholes in the system. It is well known that children need stability and love and kinship carers are known to provide this. It is too easy to take a short-term view. Generally, outcomes for children in care are poor—let us face it. They have poor or lower academic achievements, higher involvement in criminal activity and drugs and alcohol and more early pregnancies. This is a sorry story. Family and friends carers are stepping in and trying to mitigate this situation for their grandchildren, nieces and nephews or whoever, often at great cost to themselves, as we have heard. They are saving the state money and contributing to the welfare of children.

We have heard time and again that the Government are sympathetic to these carers. I have also heard time and again that local authorities are encouraged to give support, but that is not statutory support. As I said earlier, 30% of local authorities have no policy on family and friends carers. I agree that there is insufficient information on this and we must understand all the issues, so I appreciate that research will be needed. However, as I say, it must not be lengthy and must not delay help for these family and friends carers who are giving so much to society and the children whom they serve. I beg leave to withdraw the amendment.

Amendment 267 withdrawn.

Clause 93 agreed.

Amendment 267A

Moved by Baroness Drake

267A: After Clause 93, insert the following new Clause—

“Kinship carers’ adjustment leave

(1) A qualifying employee who satisfies prescribed conditions may be absent from work at any time during an adjustment leave period.

(2) An adjustment leave period is a period calculated in accordance with regulations made by the Secretary of State.

(3) The regulations under subsection (2) above shall include provision for determining the extent of an employee’s entitlement to leave under this section but shall secure that where an employee is entitled to leave under this section he is entitled to at least four weeks’ leave, or for a longer period to be prescribed.

(4) An employee who exercises his rights under subsection (1)—

(a) is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he had not been absent,

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(b) is bound, for such purposes and to such extent as may be prescribed, by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and

(c) is entitled to return from leave to a job of a prescribed kind.

(5) For the purposes of this section, an employee is a qualifying employee if he is a family and friends (kinship) carer looking after a child full-time because the parent(s) is unable to look after the child, in the first 12 months after the child moves in.”

Baroness Drake: My Lords, in moving Amendment 267A, I will speak also to Amendments 267B and 267C.

Amendment 267A proposes a new form of unpaid adjustment leave similar to parental leave—a modest entitlement of a one-off period of at least four weeks for a kinship carer during the first year after a child moves in. Often children arrive without notice and it may be unclear how long the child will be staying or whether it will be a long-term arrangement. However, the children have immediate and complex needs. Friends and kinship carers often lack parental responsibility when children first arrive because it takes time to arrange a legal order. Adjustment leave would meet kinship carers’ urgent need for time to adjust to the upheaval in the children’s lives, apply for a legal order, a residence or special guardianship order to secure the care of the child and attend numerous meetings, and would reduce the prospect of the carer being pushed out of their job as a consequence. The challenges they face were well articulated in the debate on the previous amendment.

Adjustment leave would be available for a kinship carer who can demonstrate that the children cannot live with their parent. A qualifying employee would have to meet prescribed conditions and the adjustment leave period would be calculated in accordance with regulations made by the Secretary of State. While they are seeking to secure the necessary legal orders, kinship carers may not fulfil the prescribed circumstances which the Secretary of State may have already, or may in the future, set for access to other statutory employment rights of leave. A modest period of unpaid adjustment leave would give such carers the urgently needed time to act to protect the child. At the moment they are given little or no support. The law recognises the need for an adjustment period for parents but gives no statutory recognition of any kind to kinship carers and no protection against the breaking of the employment contract when they take such urgent leave to care for the child.

The intent of Amendment 267B is to enable those with caring responsibilities—be they friends, family members or grandparents—for a child, a vulnerable adult or an elderly person to take up to two weeks’ leave per year unpaid in order to deal with pressing caring responsibilities. The amendment would give the Secretary of State the authority to define the prescribed conditions for qualifying employees and the period of leave, subject to an entitlement to two weeks’ leave in a given year. Parents of children are entitled to take up to four weeks’ parental leave a year, up to a total of 18 weeks, but many other carers do not have any statutory entitlement even to unpaid leave for a caring need, with the possible exception of a few days’ emergency leave.

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6.45 pm

As a society, we face an emerging care gap in informal care, which arises because of the cost of care, the lack of affordable childcare, more older women working, an increasing dependency ratio and people living longer. An increase in the number of elderly people, government policies and socioeconomic influences, driving an increase in older people’s and mothers’ participation in the labour market, carries significant consequences for the availability of informal care. For example, if the employment rates of older women continue to rise, there may be, in the absence of affordable childcare, a resulting childcare gap, which could adversely affect maternal employment.

More than one in four working families depend on grandparents to provide childcare. According to Grandparents Plus and Age UK, between 2009-10 and 2010-11 the number of children receiving informal care from grandparents went up from 1.3 million to 1.6 million, while the total number of childcare hours went up from 1.3 billion to 1.7 billion. At the same time, grandparents are working longer to address their own economic prospects and the longevity challenge.

London illustrates well the informal childcare gap. Here we have lower rates of grandparental childcare—18% compared with the 32% average for Great Britain. There are fewer grandparents around to help, because of internal and international migration. We also see lower rates of maternal employment and higher rates of child poverty.

The squeeze on living standards for low- to middle-income households will be longer and deeper than projected, the causes both structural and cyclical. Dual earning is a source of protection for household income, but female employment has plateaued in recent years. The high costs of formal childcare and lack of high-quality part-time work act as a significant barrier to maternal and second-earner employment. Low- to moderate-income households will increasingly depend on caring support from family members if they are to participate in the labour market. Securing greater involvement of fathers in the care of their children will not of itself be sufficient to solve the care challenge.

These structural pressures are compounded by the increasing numbers of elderly people needing care. Increasing numbers of working adults will be called on to provide informal care for an elderly family member and to remain in the labour market, keeping their employment contract intact. Age UK has estimated that people aged 50 and over make an unpaid contribution to the economy of £15.2 billion per year as carers. Carers UK estimates that, in less than five years, the number of elderly people requiring care will be greater than the number of their working-age children.

Given the emerging care gap, radical thinking is required to secure a sustainable care system in the UK. In-work and informal care policies must support each other. More universal access to unpaid care leave may appear radical, but so was the right to request flexible working and shared parental leave when the EOC, of which I was a commissioner, first proposed them. The imperatives for achieving high levels of labour market participation, increased GDP and sustainable welfare expenditure require radical policies to support informal care.

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The Secretary of State for Health, Jeremy Hunt, recently commented:

“If we are to tackle the challenge of an ageing society, we must restore and reinvigorate the social contract between generations. Uncomfortable though it is to say it, it will only start with changes in the way we personally treat our own parents and grandparents”.

He wants a change of culture. The Ready for Ageing? report of the House of Lords Select Committee on Public Service and Demographic Change states:

“Publicly funded care alone has never met all the needs of older people who are frail, vulnerable, ill or isolated. As our society ages, more informal care from family and friends will be required and more volunteers. The number of disabled older people in households receiving informal care in England will need approximately to double over the next 20 years so the Committee calls for employers to make it easier for employees to provide informal care, and for the Government to promote how crucial this is”.

A statutory entitlement to unpaid carers’ leave would contribute to achieving a sustainable informal care system. To ignore such a requirement is to avoid addressing how you achieve a sustainable informal care system.

Finally, Amendment 267C seeks to clarify the rights of grandparents to take unpaid leave in emergency situations to care for a grandchild. Emergency leave provisions are available to parents and employers must allow a few days, unpaid leave. There is a concern, shared by Working Families, that existing legislation—Section 57A of the Employment Rights Act—does not make clear that grandparents are entitled to take emergency leave.

In Committee in the other place, the Minister, Jo Swinson, said that the entitlement was available for grandparents relied upon for childcare, but ministerial assurances given in Committee may not hold at a tribunal once the legislation is on the statute book. The Minister chose her words carefully when she said in Committee in the other place that this entitlement was available for grandparents relied upon for childcare.

There is no explicit provision for grandparents in the Act or the DTI guidance—I read them both carefully before this debate. The right to take emergency leave must involve a dependant of the employee and a grandchild may not meet that definition. Section 4 of the DTI guidance identifies a dependant as a spouse, child or parent of the employee or someone who lives in the same household, such as an elderly aunt. Any other qualifying dependant, in order to get access to this emergency leave, must reasonably rely on the employee for assistance, leaving open the meaning of “reasonably rely”. Urgent care of a grandchild may not meet that definition, not unless we get the clarification that this amendment seeks.

Many grandparents and employers are unaware of any entitlement to emergency leave. Clarification would benefit families as it would confirm that they have more options as to who can urgently support the child in emergency situations. Impact on employers overall will be minimal as the amendment will spread the impact of employees’ absence across different employers. It will not increase the overall requirement for absence. I beg to move.

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Baroness Massey of Darwen: My Lords, I support my noble friend Lady Drake’s Amendments 267A, 267B and 267C. I will say a word later on Amendment 267BA after my noble friend Lord Stevenson has spoken to his amendment. My noble friend Lady Drake has set out the principles of these amendments comprehensively and I just want to add a few comments.

When children first move into kinship care, the carers and the children need time to settle and adjust to the upheaval in their lives. I know a kinship carer who received three children at midnight because their daughter had died from a drug overdose. That is an upheaval beyond imagination. She said that the children were grieving, she was grieving and they had very little time to do it properly. Children often arrive without notice in these circumstances. For example, a parent may be in hospital or there may be domestic violence or abuse. The proposal is for a period of leave similar to parental leave.

An estimated 60,000 kinship carers have dropped out of the labour market to bring up children. There are many reasons for this, including the high needs of the children and the fact that the carers are not legally entitled to any time off to accommodate the needs of the child, especially at a time of upheaval when everybody is in crisis and needs time to settle down.

Amendment 267 seeks the extension of emergency leave entitlement to grandparents, to enable a grandparent to take reasonable time off work to provide help where a grandchild is ill or to deal with an unexpected event at school, for example a school closure due to poor weather. Some families would prefer a working grandparent to be able to take time off to provide childcare when a child is ill or a school is closed. I—and, I would guess, several people in this room—have certainly taken time off or given up time to look after grandchildren when there has been a crisis in the family.

The amendment seeks to help parents to balance work and their caring responsibilities, and to relieve the pressure on families when a child has a problem. Currently, one in four working families depend on grandparents to provide childcare. Some 70% of all working grandparents say that they look after their grandchildren and 29% of grandparents are working. The impact on employment overall should be minimal as the amendment will spread across different employers the impact of an employee’s absence due to a family emergency, such as a child’s illness, rather than one employer, typically the mother’s, experiencing the full impact.

I was interested that in Denmark, apparently, it is usual when a child is ill for the mother to take the first day off, the father the second and a grandparent the third, which seems very sensible. Again, I support the amendments and I look forward to the Minister’s response.

Baroness Lister of Burtersett: My Lords, I support Amendment 267B, particularly from the perspective of carers for adults, although, of course, I also support it with reference to carers for children. A Carers UK/YouGov poll found that 22% of UK adults had seen their paid work negatively affected as a result of caring, including 2.3 million who had given up work as a result and about 3 million who had reduced their working hours to care at some point in their lives.

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Research has demonstrated that the point at which caring begins to have a significant impact on carers’ ability to work is when 20 hours a week or more is provided, with some analysis indicating that the tipping point may be even lower at 10 hours. Without the right support, millions of workers are leaving work to care and the cost of this to individuals, business and the economy is huge. Recently, research by the Personal Social Services Research Unit at the LSE calculated the public expenditure costs of carers leaving paid work at a staggering £1.3 billion a year, based on the cost of carer’s allowance and lost tax revenues. Additional analysis by Age UK indicates that the economic cost rises to £5.3 billion when lost earnings are taken into account. One quarter of working carers report that they feel they receive inadequate support to enable them to combine work and care and only half think that their employer is carer-friendly. The survey of carers found that nearly two-thirds of carers in work have used annual leave to care, while nearly half have done overtime to make up for taking time off to care.

The task and finish group set up by Employers for Carers and the Department of Health states in its final report that,

“the issue of supporting carers to remain in work is not only a problem, but also an economic opportunity. Supporting carers to remain in work can bring considerable benefits to carers themselves, employers and the wider economy”.

This is partly a government publication.

7 pm

I pay tribute to Mr Christopher Jeffery, who has been campaigning for paid carer’s leave for some time. With his permission, I shall quote from a moving statement he made a couple of weeks ago to the All-Party Parliamentary Group on Carers, of which I am a member and whose co-chair is sitting behind me. Mr Jeffrey argued that if a policy of paid carer’s leave were available it would improve the health of the carer and make companies more attractive to carers wishing to return to the employment market. He said:

“In our case my wife has on several occasions been up for more than 41 hours through work and caring needs along with visiting me in a London hospital. She may I add not visited me every day due to travel costs and work pressures when I have been admitted to hospital. On one occasion last year my wife had agreed a work plan with her manager to come in early ensuring there was no loss in output for the department and then be able to leave work and pick me up from hospital. She was told to confirm this by phone when I had been taken to theatre for my operation just in case of any problem. When she did so her department deputy stated on the phone that she knew nothing about it, my wife was shirking and not pulling her weight and letting the company and her colleagues down”.

Noble Lords can imagine what she felt at that point. He goes on:

“Due to further stresses including cancer tests and ongoing urology problems and having to support me through this and ensure that her work was done prior to all hospital appointments and not getting support from her colleagues or company my wife suffered a total breakdown”.

I am not surprised. He continued:

“Through this I have felt a burden to my wife like many other disabled people do when something happens to the person they love and cares for them”.

It is awful that someone in this situation should feel a burden to the wife who is caring for him because of the inflexibility of his wife’s employers. He asks why

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carers cannot be allowed five days’ paid leave—I know this is not what the amendment asks for—for emergencies and so on. He says:

“The day to day routine of caring and trying to remain in employment puts unnecessary pressure on every carer and they have to cope with this yet they are still not allowed any semblance of equality with regards to paid leave in times of emergency”.

I echo his question. Why indeed can carers not be allowed such leave? I believe we are at the beginning of the road of a campaign that ultimately has to be successful. Common sense, the business case and social justice are all on its side. I hope it is not too long a road.

Baroness Howarth of Breckland: My Lords, I simply want to ask a question. During the past Session, we have managed to achieve considerable integration between adult care, the health service and children’s care—looking after children’s carers. Why can the Department for Work and Pensions, or whatever department handles this sort of employment legislation, not also become much more integrated so that the whole package can be assessed appropriately? That may be too great a vision but maybe that should be the road we go along.

Lord Stevenson of Balmacara: My Lords, my amendment, which is part of this group, is rather low-key compared to the sort of debate that we have just had. It seems in vogue, in terms of what has just been said, that we should seek a compromise position that all parties could support in this area. As my noble friend Lady Lister has said, this seems to have all the hallmarks of an irresistible force that is moving forwards. These are pressing and important areas of activity in our social arrangements. They are suffering badly because they have not received the attention they should have done in previous Administrations, including our own, but the benefits of and the opportunities for making something better out of it are so great that the argument surely carries weight and we should be looking very carefully at it.

I do not wish to comment further on that but I make an offer to the Minister: if he would like to see whether a discussion between the parties might help to provide a context in which some of the good will that has been expressed in the Committee today can be taken forward, I would be very happy to participate in it. Obviously, we would need to work out what we were going to do with such an amazing compact, should there be one, but it would at least be a step in the right direction.

Our amendment does not go anywhere near that, except to build on what the Minister mentioned in response to Amendment 267, which was, in his careful phrasing, “a research project” to get some basic material out about this area. Amendment 267BA is looking at a review that would be carried out by the Secretary of State, on the impact of the lack of paid leave on kinship carers and special guardians left in the workplace, so it is narrower. I appeal to the Minister to see in that the opportunity to take another step down this path, which, like my noble friend Lady Lister, I hope is not too long. I hope for a little of his caring and listening mode on this occasion. I thought it was only in response to my noble friend Lady Lister and others that he adopted it, but perhaps this time he could listen to me as well.

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Baroness Massey of Darwen: My Lords, I follow my noble friend Lord Stevenson in supporting this attempt to reach a healthy compromise. There is already a great deal of research and investigation into the plight of family and friends who are carers. I hope that that can be built on. There is a meeting with officials, which I think the Minister has set up for next Wednesday, and I hope that any noble Lord here who is concerned about this could get details of that meeting. I hope that at that meeting we could discuss this proposal for research and who will be involved. I hope, too, that, as the noble Baroness, Lady Howarth, has just said, that involvement will be integrated across various streams of various departments.

Viscount Younger of Leckie: My Lords, modern families come in all shapes and sizes, and it is important that we recognise the extremely valuable contribution that is made by many different individuals. I shall address each of these amendments in turn, beginning with Amendment 267BA. This amendment would require the Secretary of State to review the provision for kinship carers and special guardians, as moved a moment ago by the noble Lord, Lord Stevenson. As I have said in, as he put it, a carefully worded, but, I hope, clear response to the previous amendment, the Department for Business, Innovation and Skills will undertake research into kinship and friendship carers and special guardians and their participation in the labour market in order to ensure that support provided by the Government is appropriate to address these people’s needs.

The noble Baroness, Lady Massey, questioned the length of the research in the previous amendment and stated that plenty of research was already available. By way of reassurance—I hope that she takes it in this spirit—I would say that it is important that we take the time to scope the project properly in advance of starting the research. I welcome the input of the organisations mentioned and, indeed, others that might not have been mentioned. I give this commitment: I shall return to this House with further details on the likely timetable on Report and note some further carefully chosen words. The noble Baroness alluded to a meeting with officials that has been arranged. I confirm that it is set for next Wednesday at 11am. The Bill team will provide further details by e-mail about that meeting. I encourage as many people as would like to attend to come.

Turning now to Amendments 267A and 267B regarding adjustment leave for kinship carers and leave for carers, as I am sure noble Lords will agree, carers play a vital role supporting and caring for their children or loved ones, and they reduce the need for state funded care. These points were made with great passion today by a number of noble Lords. These individuals can often struggle to balance their work and caring responsibilities effectively and without support may not be able to stay in work. It is important that we recognise this contribution and provide carers with the support that they need to remain in the workplace. From time to time, carers may need time off to manage emergencies or breakdowns in care. Many kinship and friendship carers also experience a period of adjustment when a child comes to live with them. The noble

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Baroness, Lady Massey, gave the Committee a rather heartbreaking example of an occasion when a parent died of a drug overdose. If I read her correctly, the child appeared on someone’s doorstep.

Changes in living circumstances can happen suddenly and families may come under great strain to adjust quickly to the caring needs of a child who may be facing many complex issues and emotions. The right to time off for dependants enables them to take time off to make arrangements for their care. Once the child is living with kinship or friendship carers, he or she becomes their dependant, and any carer who is an employee will be entitled to time off. This enables the carer to take a reasonable period of time off work to take the action necessary to deal with specified short-term emergencies, and this is a day one right that is available to all employees. The employee does not necessarily need to give their employer advance notice of their intention to take leave under this provision as long as they inform their employer as soon as is reasonably practicable. This is because emergencies rarely come with notice, and again examples were given earlier in this debate.

The right to time off may not meet the needs of all individuals in all circumstances. Many employers provide additional forms of leave for compassionate reasons to enable employees to deal with sudden and often traumatic changes in circumstances. Caring is often a long-term responsibility. All carers, including kinship and friendship carers, may need to consider long-term changes to do with their changed circumstances. The Government believe that the right support for carers is to allow them to change how they work to better accommodate their caring role on a long-term basis.

Carers are already eligible to make a statutory request to work in a flexible way under the current legislation. However, the extension of the right to request flexible working in Part 8 of this Bill will drive a culture change which should mean that flexible working becomes more widespread and better integrated into standard working practice. My department, the Department for Business, Innovation and Skills, has been working closely with the Department for Work and Pensions and their private sector working group to encourage more employers to consider flexible working practices when they are designing and advertising jobs. They have developed, for example, a strapline to use when advertising jobs: “Happy to talk flexible working”. This should increase the availability of jobs that can be done in a flexible way, thus enabling more carers to remain attached to and re-enter the labour market.

Extending the current right to request to all employees will enable more people, including those who have more informal or infrequent caring responsibilities such as kinship or friendship carers, to retain an attachment to the labour market when they have experienced significant changes in their personal circumstances. The noble Baroness, Lady Drake, raised the issue of supporting grandparents to remain in work when they provide childcare. The Government agree that it is important to support the needs of older people and grandparents, and to help them stay in work, especially when they have caring responsibilities.

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This has been a key driver behind the extension of the right to request flexible working, and it will help these groups to balance work and care commitments on a long-term, sustainable basis. It will support the informal caring that is often provided by grandparents, about which I will have a few more words to say later.

I turn finally to Amendment 267C regarding emergency time off for grandparents. We have heard many examples of the invaluable practical and emotional support provided by grandparents to their children and grandchildren, an issue raised particularly by the noble Baroness, Lady Drake. I welcome this debate as an opportunity to pay tribute to the vitally important role that grandparents play in supporting families to juggle work and childcare responsibilities.

The issue of emergency time off for dependants was debated during the passage of this Bill in the other place. The Minister for Employment Relations and Consumer Affairs outlined the qualification criteria for this type of time off, and for the benefit of noble Lords I shall do so again here, albeit fairly briefly. This provision is intended to give employees a statutory entitlement to time off work to deal with an emergency involving a dependant. The qualification criteria for this type of time off are deliberately broad, and this is to ensure that any employee on whom a person reasonably relies to make arrangements for the provision of care is able to qualify for this type of time off in circumstances where there has been an unexpected disruption or termination of care arrangements. It is important to emphasise that the legislation enables all employee grandparents who are relied on to make arrangements for the provision of care for their grandchildren to qualify for this time off in such circumstances.

7.15 pm

Employers and employees must be able to understand the law in order to apply it in the real world. Guidance plays an extremely important role in ensuring that individuals who are legally entitled to this time off are able to take it. When this issue was debated in the other place, it became evident that the guidance on the Gov website was limiting the amount of time off that employers were enabling employees to take. The guidance stated that in most cases “two to three days” should be sufficient to deal with an emergency involving a dependant. In fact, the legal entitlement is to a “reasonable” amount of time off. The definition of “reasonable” will depend on individual circumstances, and in some cases a longer period of time off may be appropriate. I reassure the noble Baroness, Lady Drake, that for this reason the Government have amended that guidance to reflect the statutory entitlement to “reasonable” time off. In addition, the “Your Rights” section has also been amended to include “grandchild” in the example list of potential dependants. That change makes it clear to employers that grandparents may qualify for this entitlement.

I understand that noble Lords may wish to amend the law in order to clarify the rights of grandparents. However, it is important to remember that the crucial factor that gives rise to this entitlement is the nature of the relationship between the employee and the dependant. It is right that employees who are relied on to make arrangements for the provision of care are entitled to

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time off to deal with the unexpected disruption of care arrangements for a dependant, whatever their familial relationship to that individual. As I have mentioned, grandparents who are relied on to make arrangements for the provision of care for their grandchildren will qualify for this time off.

We therefore believe that it is not necessary to change the law, but it is important to clarify current entitlements for the benefit of employers and employees. Guidance is the appropriate way to achieve that. I hope that the recent changes made by the Government that I have outlined have provided sufficient reassurance to the noble Baronesses, Lady Massey of Darwen and Lady Drake. I hope that the clarifications of current entitlements and commitments that I have made have reassured the wider Committee, and I ask noble Lords to withdraw their amendments.

Baroness Drake: I thank noble Lords who have spoken in this debate. I thank the Minister for his response, and I shall respond to some of his points. Obviously, it is welcome that the Government are looking at the issue of kinship carers and employment but, like my noble friend Lady Massey, I have to ask how long that will take. The issue is now pressing and urgent, and it is not a new one; the question of the lack of protection for this group of people was well aired during the Welfare Reform Bill.

I hear what the Minister says about scoping the project, but a lot of work was done by the noble Lord, Lord Freud, and the DWP team to identify this community and the challenges that it faces. Hopefully, that is banked and does not have to be repeated. The issue here is that, at the moment, maybe with the exception of getting a bit of emergency leave, the statutory provisions in this country do not protect individuals by giving them a statutory right to leave and an ability to keep their employment contract in place. It is welcome that the Government are going to return with a likely timetable before Report.

Most noble Lords here are familiar with the emergency leave provisions, but those do not address the kind of fundamental challenges that kinship carers face when they take on a child at very short notice, with all the complexity and problems that go with that, and subsequently become confirmed as the permanent long-term carer of that child. It is a little drop of a contribution and does not really start to tackle the fundamental challenges that many of them face. It still does not address the glaring imbalance between the support provided to prospective adopters, parents and surrogate parents when it comes to statutory protections. They are the Cinderellas and, consequently, so are the children they look after.

Flexible working proposals are clearly welcome. They are very important in allowing carers to balance their relationship with whoever they are caring for and to stay in work on an ongoing basis, but they do not of themselves provide the statutory right to leave, which is the essential issue for many people when they are either facing a pressing caring need or taking on a child in urgent circumstances. The flexible working arrangements do not necessarily address the immediate problem of the requirement for leave while allowing the employment contract to stay in place.

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I hear what the noble Viscount says about grandparents. I have read the statutory provisions and the guidance—I must go and read them again. I worry that the phrase “reasonably relies” will have to be defined by case law. Therefore, there is a hurdle that grandparents have to first meet before they can say, “I will be the one that goes and helps the child. I am a person who that child reasonably relies upon for care in an emergency situation”. If the Government want grandparents to be supported and enabled to take emergency leave to provide that support for families, I struggle to see why one does not simply deal with it straightaway by a simple, modest little provision that would remove any ambiguity on that point.

The issue of statutory leave for kinship carers is not going to go away. So many people feel so strongly about it, and I am sure we will come back to it. I beg leave to withdraw my amendment.

Amendment 267A withdrawn.

Amendments 267B and 267BA not moved.

Clauses 94 to 97 agreed.

Amendment 267C not moved.

Amendment 267D

Moved by Lord Knight of Weymouth

267D: After Clause 97, insert the following new Clause—

“Parental bereavement leave

In the Employment Rights Act 1996, after section 57A there is inserted—

“57AA Parental bereavement leave

(1) The Secretary of State must make regulations entitling an employee who satisfies specified conditions—

(a) as to duration of employment, and

(b) as to relationship with a child,

to be absent from work on leave under this section in consequence of the death of a child.

(2) Regulations under subsection (1) shall secure that, where an employee has a right to leave under this section, he or she is entitled to a leave period of at least 2 weeks.

(3) Regulations under subsection (1) shall secure that an employee who exercises his or her right under subsection (1)—

(a) is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he or she had not been absent,

(b) is bound, for such purposes and to such extent as may be prescribed, by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and

(c) is entitled to return from leave to a job of a prescribed kind.

(4) In subsection (3)(a) “terms and conditions of employment” includes—

(a) matters connected with an employee’s employment whether or not they arise under his or her contract of employment; and

(b) terms and conditions about remuneration.””

Lord Knight of Weymouth (Lab): My Lords, Amendment 267D, which would add a new clause after Clause 97, is about parental bereavement leave. The amendment seeks to give the Secretary of State a

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power to make regulations entitling an employee to be absent from work on leave as a consequence of the death of their child.

It may come as a surprise to many that there is no statutory entitlement to such bereavement leave, but that is the reality. The other elements of the proposed new clause are there for your Lordships to read. The current legal position, for those who do not know it, is that at present parents may be entitled to time off for dependants—there is a legal right to unpaid leave to cope with family emergencies, to which some reference has been made. There is no upper limit to the amount of time specified. It should be “reasonable” and should be only the amount that is sufficient to deal with the situation. The government guidance says:

“There is no set amount of time allowed to deal with an unexpected event involving a dependant—it will vary depending on what the event is … In most cases, one or two days should be sufficient to deal with the problem”.

Clearly the bereavement of a child is a problem that would need more than one or two days. Everyone’s grief is different, so quantifying this is slightly challenging, but I contend that we need to give everyone some certainty that they are entitled to a minimum amount of leave on a paid basis. In my mind, that is two weeks, which I will talk about in a moment.

Having said all that, I also want to pay tribute to Lucy Herd, who I first met two and a half years ago when recording an edition of “The Politics Show” in the BBC’s Southampton studio—occasionally, appearing on these shows does some good. Lucy, who I talked about in my contribution at Second Reading, suffered the loss of her child, Jack, in an accident in the garden. He drowned in their garden pond. Her husband, who at the time was in Australia, was given the opportunity to fly back. Obviously it takes a while to fly from Australia to Cumbria, but he was not able to stay around for very long because his employer needed him back at work within a week. As a result of that experience, Lucy started campaigning, supported by the Lullaby Trust, Bliss, Cruse, Child Bereavement UK, the Childhood Bereavement Network and others. She has discovered that hers is not an isolated example of people suffering from unsympathetic employers. I think the vast majority of employers are reasonable, but clearly there are examples where some are not. I am grateful to the Minister for meeting Lucy last month to discuss this, and to my noble friend Lord Stevenson for accompanying her. Unfortunately, because of my caring responsibilities—I listened to the debate on the previous amendment with care—I was not able to attend.

Recently, in the course of her campaign, Lucy put up a petition on the Change.org site. I looked through the comments that people are allowed to leave as they sign these petitions. There are many moving comments, two of which really stood out as examples that demonstrate that this is not an isolated case. The first was from Karen from Birmingham, who said:

“I got only 6 days compassionate leave when my 6 year old daughter died. A day for every year she lived. Disgusting! And that was the ‘caring’ NHS!”.

The NHS was her employer. Also from Birmingham was Ian, who said:

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“I lost my daughter Megan on the 13th September 2010. She had a brain tumour. The work (the Queen Elizabeth Hospital Birmingham) gave me 6 days companionate leave which was good I thought then told me to go off sick until my grieving eased. When I returned 4 weeks later I was called to a meeting with my manager and the personnel department and given a written notice for being off after my daughter’s death”.

That is how in some cases the NHS might treat people who are suffering in this circumstance.

I contend that this is not an isolated case. I was pleased today, following Prime Minister’s Questions in the other place, to hear that this was raised by Tom Harris MP, who asked the Prime Minister whether or not he would commit to amending the Employment Rights Act 1996 to at last give British parents the legal right, and the time, to grieve. I was pleased at the Prime Minister’s response:

“The hon. Gentleman raises an important issue, and I am happy to look at that, having suffered that experience myself. As a Member of Parliament, it is possible to take a little bit of time to stand back and come to terms with what has happened, because colleagues and the people who help us are ready to step in and do what they can. He has raised an important point; let me look at it and get back to him”.

So the Prime Minister gives us some encouragement. As I understand it, he took two weeks’ bereavement leave. In informal conversations, the CBI, which does not have a formal policy on this, has suggested that two weeks’ paid leave might be reasonable.

Bliss, the charity that campaigns,

“for babies born too soon, too small, too sick”,

as its strapline says, has also been in touch and is strongly supportive of this amendment. Many people think that for children who are stillborn, who die in a cot death or who die early on in their lives, maternity leave can be used, so that this is not such an issue. Bliss has said to me that there are emotional reasons why parents might feel more comfortable taking bereavement leave rather than maternity or paternity leave, because it is a focused recognition of their loss. Removed from the emotional associations of parental leave without a child, they can feel more able to take the leave that they need. Ensuring that they are entitled to bereavement leave would also help them, when dealing with employers and other outside agencies, to be clear about their situation and ensure that they get the appropriate support. Although Bliss has sent me some bad examples, it has also sent me some very good examples of how employers can work sympathetically with people who have been through this extraordinary trauma.

7.30 pm

It would be reasonable for noble Lords to ask whether there is public support for this sort of measure. I am delighted to say that, by happy coincidence, Lucy has received the results of a poll that was carried out by Survation. On my reading of it, it looks like a reasonable sample size—1,508—and the results are clear: when asked whether there should be a national guaranteed minimum entitlement to bereavement leave for a close family member, 70.8% agreed. Although I do not for a second want this to be party political, for those who are interested in the politics of it, 74.5% more women than men agreed and 75.2% of people who voted Conservative at the most recent election agreed, so there may be some electoral and political

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reasons to agree to this. Another question that the survey asked was whether it was unfair that bereavement leave for close family members was unpaid, and of course 62.9% agreed with that too. I contend that this certainly has public support.

The other question that would be reasonable for noble Lords to ask is about the cost. Here I am grateful to Tom Harris MP and his staff—in particular Russell, who is working his final day today and has probably finished by now. Working with the House of Commons Library on this, they came up with some analysis for us, which says:

“In 2012 there were approximately 4,500 deaths of people aged under 16 … a rough estimate for the number of parents in employment who suffer the death of a child is 5,800 per year”.

To simplify costings, they assumed that all were full-time employees, although of course the reality is that full-time employees are only 63% of all people in employment, and that the median gross weekly earnings for full-time employees in Great Britain were £508 as of April 2012. So they would say that the cost to the Exchequer for one week’s bereavement pay would be £3 million to £3.2 million, as a generous estimate. I think that that is a reasonable cost to pay to give the people I have talked about, such as Lucy, Ian and Karen, the certainty that they will be given a bit of time to readjust to what I am sure any of us can only imagine would be the most devastating set of circumstances to affect our families.

My final point in evidencing the cost of this is the cost of relationship breakdown. I know that across your Lordships’ House we are concerned about that. Lucy is not alone in having had her relationship break down following the death of her child; around 90% of relationships break down following the death of a child. That also has to be costed in to our analysis of whether or not this measure is worth doing.

I know that the Minister is reasonable, I have a suspicion that he would have the support of the Prime Minister and I am pretty confident that he would have the support of his coalition partners. I look forward to his response and I beg to move.

Baroness Brinton: My Lords, it cannot be right that it is a complete lottery for a grieving parent, probably in deep shock, in being entirely reliant on the good will of their employer. I shall give a slightly different example from the one given just now by the noble Lord, Lord Knight, and focus on an extended illness of a child. Jane, a junior manager whom I know, had a three year-old with leukaemia. The charity she worked for believed itself to be a caring and reasonable organisation, but the head of the charity objected to allowing further compassionate leave as the child was dying or when the child died, nor did they want to give leave to prepare for the funeral. They said that the parent should take unpaid leave, having used up her annual leave to be with her child in hospital earlier in the year.

It took a little while for this charity to be persuaded that this was not the appropriate course and, some years on, as a result of the organisation changing its view, the junior manager, Jane, is still there. She found support from friends and colleagues absolutely vital, both in the time immediately after the bereavement

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and later when she returned to work. What the family really needed after the death was time—time to prepare for the funeral, time to help other children in the family to understand and time to prepare for a return to an ordinary working life after such an extraordinary event.

I think, despite the story, that this manager was lucky. At the very least we need guidelines for employers, but I have sympathy with the amendment of the noble Lord, Lord Knight. As he has outlined, the costs are not too great either. Fortunately, losing a child is rare, so neither employers nor the Exchequer need worry that this will be a great cost. Also, as important as the humanitarian and caring approach is, parental bereavement leave is likely to help parents settle back into work, which in the long run will help both their employer and the state.

Lord Stevenson of Balmacara: My Lords, it is very difficult to follow the well presented case that has been made for action in this area, but I want to spend two seconds paying tribute to Lucy Herd, who is in the audience today. I was privileged to accompany her when she came to see the Minister and the Bill team and very bravely went through some of the things that had happened to her in her life and how she had coped with them. One wonders whether people really can dig so deep, and yet that is what she did; she turned the tragedy of the death of her deeply loved son, Jack, into a campaign that she is still waging and which we have heard about from my noble friend Lord Knight.

This situation cannot be right. We need to do better than we currently do as a society that says it cares about these sorts of issues. There is clearly a cost, but there are also other things that could be done at least to open the situation for discussion. If this happens to you or to your nearest and dearest, you should not then find during the trauma of what is happening that the rules are so adverse and difficult that you do not know where you stand in terms of your relationship to your employer or to anyone else or their agencies. Given the complications of what would happen and the timescales involved—because if there are inquests and other things they will span over a long period—this situation is clearly unstable and has to be resolved. I hope that the Minister will be able to help us

Baroness Howarth of Breckland: My Lords, I shall be very brief because I know that the noble Lord, Lord Knight, should be speaking elsewhere at this minute, I believe.

Lord Knight of Weymouth: No, I am fine.

Baroness Howarth of Breckland: I support the amendment. I work with an organisation for children who are born with half a heart. Some of them therefore die but, luckily, more live now than did in the past. The variety of responses from employers to those bereaved families is extraordinary; I shall not go into examples because of the timeframe. The Minister might well say that we need a change in culture, as indeed we do, but one way of achieving that is by having something like this on the statute book. I therefore support the noble Lord.

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Viscount Younger of Leckie: My Lords, this has been an important debate on a difficult and moving issue. I am pleased that the issue was raised at Prime Minister’s Questions by Tom Harris MP, as the noble Lord, Lord Knight, mentioned.

The death of a child is an event that no parent should have to experience and it is distressing to hear that some people are not given the time off work that they need. I was privileged recently to meet Lucy Herd, whose experience following the death of her son, Jack, was outlined so eloquently by the noble Lord, Lord Knight of Weymouth, at Second Reading and today. I found her story extremely moving and was greatly saddened to hear that her partner had not been able to take the time off that he needed to be at home with his family after his son had passed away.

The majority of employers respond to such an event with compassion and understanding, offering their employees the support that they need to take time off and to begin to deal with the consequences of the tragic event. I am pleased that the noble Lord, Lord Knight, recognises this. However, I accept that this is not the case for all parents. Even if such refusals of time off are very rare, they are naturally extremely upsetting for the individuals involved. I emphasise that an employer who does not enable a parent to take time off in order to take action that is necessary in consequence of the death of a child is acting unlawfully. The law is clear that the entitlement to emergency time off for dependants enables parents to take time off to take necessary action following the death of a child. The noble Lord, Lord Knight, raised the issue of the guidance on time off for dependants, which states that one or two days is sufficient. I reassure him that, as I mentioned in my response to the previous debate, we have recently amended the guidance to make it clear that the entitlement is to a reasonable amount of time off.

When a child dies, many processes need to be completed. These would be complicated and distressing at the best of times. I am sure that when a parent is trying to deal with shock and grief following the death of their child, this can be extremely challenging. It is right that parents are able to take time off to deal with these arrangements, and the law clearly provides for that. There is, however, no legal entitlement to statutory time off to grieve. Grief is an extremely personal issue and affects people in very different ways and at different times. For some people, returning to work immediately after a death is a distraction from difficulties at home. Others may need time off at a later date. Parents are best placed to understand their individual needs, and good employers will respond to requests made by their employees in the most appropriate and sensitive way. It would not be possible to legislate to accommodate the varied needs of individuals.

Research conducted by the Chartered Institute of Personnel and Development demonstrates that many companies have a policy in place for enabling employees to take time off for special and compassionate leave. In addition to leave available as a matter of policy, further time off may often be taken at the discretion of the line manager. Organisations that do not have a policy in place may find it challenging to meet the needs of bereaved employees at what we can all agree

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is a particularly difficult time. This may be compounded by a lack of understanding about the different religious beliefs and practices of their employees, which often influence grieving and funeral arrangements.

The Government are committed to giving employers the tools and support that they need in all aspects of their relationships with their employees. There is a clear need for guidance to support employers to develop company policies or approaches for time off for bereaved employees. The Government are currently exploring the best way to do this and will bring forward a concrete proposal shortly. I am pleased to announce that the timetable will be available on Report and we can share our approach with the House then.

I am grateful to the noble Lord, Lord Knight of Weymouth, for bringing this important matter to the attention of the Committee. I hope that he and indeed Lucy Herd are reassured by the commitment to bring forward guidance. In the mean time, I ask him to withdraw his amendment.

7.45 pm

Lord Knight of Weymouth: My Lords, I am grateful to everyone who has spoken in this brief debate, and to the Minister for the sensitive way in which he has responded. We can all agree on what we think employers should do. We can agree that employers should have a policy so that, if these tragic things were to happen to a member of staff, they would have tried to anticipate how best to deal with it. We can agree that parents are best placed to make some of those judgments for themselves. However, “reasonable” has a very wide interpretation. We should use this opportunity to narrow that interpretation. I am therefore grateful to the Minister for announcing that he will bring forward concrete proposals about a timetable on Report. We shall certainly return to this issue then, in part to allow him to do so. In the mean time, if he wants to work with me on his own amendment then I would certainly wish to do that.

I remind him that this amendment seeks to give him powers. He could then use his mechanism of a concrete proposal and a timetable to work out how he should consult best to use those powers. Between now and Report, working with my friend Tom Harris in the other place, we shall liaise with the Prime Minister’s office to see how he reflects on this issue. I hope that we can come away with as happy a result out of these sorts of tragic circumstances as possible. I beg leave to withdraw the amendment.

Amendment 267D withdrawn.

Clause 98 agreed.

Amendment 267E

Moved by Lord Stevenson of Balmacara

267E: After Clause 98, insert the following new Clause—

“Review of the provisions of this Part

(1) The Secretary of State must from time to time—

(a) carry out a review of the provisions under this Part;

(b) set out the conclusions of the review in a report; and

(c) publish and lay a copy of the report before both Houses of Parliament.

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(2) The report must in particular—

(a) set out the objectives intended to be achieved by this Part including, the objective of encouraging fathers to share in caring for their children;

(b) assess the extent to which these objectives are achieved for all families including those with premature or multiple births; and

(c) assess, having regard to the objectives set out in paragraph (a)—

(i) the number of families having access to the provisions under this Part and whether this could be increased;

(ii) whether the amount of paid leave available to fathers independently of any shared parental leave arrangements is suitable;

(iii) whether and how shared parental leave could be taken on a part time basis.

(3) The first report under subsection (1) must be published before the end of three years beginning with the day on which this Part comes into force.”

Lord Stevenson of Balmacara: My Lords, in speaking to Amendment 267E and also Amendment 268A, I can be brief because the ground we have covered today has been leading up to a number of the points that I would have made if I had had more time and needed to break new ground. The essence of much of what we have heard from the Minister is that the spirit is willing but the flesh is weak. Often, as I anticipated in my opening remarks, he accepts the arguments for the direction in which we want to travel but he does not feel that the economic circumstances or alternatively the particularities of the individual point are absolutely in tune with the willingness of the Government to move on the point. I am not sure that metaphor will read well in Hansard but you will understand where I am trying to get to. This amendment therefore provides an opportunity for the Government to sign on to what we hope would be a narrowly focused and specific review, not general but tied to the various pinch points that we have encountered in our journey through these amendments today.

For example on the question of paternity pay, could we have a review that picked up the particularity of the point that was made in another place? The Minister’s counterpart in the other place said that the although the powers to allow the extension to paid paternity leave would be in the Bill, there would be a delay in making the extension until flexible parental leave had been fully embedded and we could assess the impact on shared parenting. Okay, let the review assess both whether parental leave has been fully embedded and the impact on shared parenting, tying it in to that arrangement. The question would follow naturally for the review as to whether the objective of encouraging more fathers to take leave had worked, and whether the amount of paid leave available to fathers in their own right was suitable in the light of the objective.

The Government have also said that they will consider making arrangements for working parents who do not meet the qualifying criteria to receive statutory payments, but this provision could not be introduced before 2018 to allow time for development and—a very important point—to ensure that it interacts appropriately with the new universal credit system. As we all know, the new universal credit system is not moving along at

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quite the pace that its originators would perhaps wish, so that may impact on the timing of the review, but I hope that it will not. Again, it would be appropriate to tie this review in to those things.

There are a number of particularities within the debate that we have had today which I offer to the Minister as being exemplars of the reasons to do a targeted review so that we can continue the sort of debates that we have been having here. We have a joint purpose of trying to make this legislation better, and it would be greatly informed if we could agree on the format of a review that would answer the questions that we should like answered.

Amendment 268A is slightly different. It is to try to inculcate a change in culture—we have talked about culture a lot in today’s discussions. This is about the move from a labour market scene that is largely dominated by fixed hours and fixed-time contracts to one that would be based on the starting assumption that all employment contracts, in time, could be flexible. If that were to be the case, we would have a situation where a number of the issues that we have raised again in discussing today’s amendments would fall away because the flexibility that would be innate in any job would allow for care concerns, problems around bereavement, issues around changes such as the onset of disability, or the tragedies that happen in families. All those things would be easier to deal with if the basic paradigm for employment were flexibility.

In the sense that this is something where we have a shared purpose that this would be a good thing—indeed, there are many examples I could give of employers that have set out to say that they are filling all future posts on a flexible basis—we would like to see flexible working become the norm, which would allow a number of good things to flow from that. The question is: how would we do that? Could we have a campaign? Could the Government put all posts within government services on a flexible basis? Could they set themselves as a standard bearer for this new approach? The amendment seeks to probe whether there is willingness within the operations of government, and more broadly within the workplace, to get on this bandwagon of moving towards flexible working, which seems to carry with it the seeds of much of what we have discussed today, which we would all find desirable. I beg to move.

Viscount Younger of Leckie: My Lords, the introduction of shared parental leave and the extension of the right to request flexible working are significant steps forward in creating the right environment for modern workplaces. This Government have committed to a policy of regular review of legislation to ensure that laws operate in the way in which they were intended and that they are still relevant. Shared parental leave will be no exception. This review will take place at the earliest opportunity when appropriate data are available. The Government will have to look at the take-up of the policy and the impact it has had on achieving one of the key policy aims of enabling shared parenting in the UK.

I make the commitment in this Committee that the Government will review shared parental leave as soon as appropriate data become available. The review will consider whether shared parental leave has gone far

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enough to encourage fathers to take a more active role in the care of their children in the early months following birth. As I mentioned earlier, the Government are taking powers in this Bill to allow for the extension of paternity pay, which would enable the Government to extend paternity leave and pay at a later date through secondary legislation.

Alongside reviewing the take-up of shared parental leave by fathers, the review will also look at whether the shared parental leave provisions are supporting all families in the most effective way. This may include parents of multiple births, provisions for self-employed parents and whether shared parental leave and pay can be made to work on a part-time basis.

Amendment 268A would require an annual review of the promotion of flexible working to employers and employees. The right to request flexible working was first introduced in 2003. That right has been very effective in encouraging employers to adopt flexible working practices within their businesses. It also reassures employees that their request for flexible working will be taken seriously.

The Government believe that flexible working should no longer be seen as a concession to families and those with caring responsibility. The benefits of flexible working are experienced by businesses, regardless of why an employee wishes to work flexibly, and I applaud the work that the previous Government did in promoting flexible working. Survey data show that, thanks to the existing right to request flexible working, 90% of employees have access to at least one flexible working arrangement. I hope that this will prompt a certain glow on the face of the noble Lord, Lord Stevenson, opposite.

Many businesses across a variety of sectors recognise the benefits that flexible working can bring. The Government have been working with a number of organisations to promote the benefits of flexible working, and will continue working with businesses to increase the awareness of flexible working arrangements.

Clause 106 requires the Secretary of State to review the effectiveness of changes to flexible working legislation made in the Bill and the extent to which the changes achieve the objectives of the policy. The Government will conduct this review within seven years of the implementation of the flexible working provisions of the Bill. The review will include reviewing the effectiveness of communicating with employers on the benefits of flexible working and make recommendations on whether additional communication of the right is needed.

I recognise that seven years is a longer period than the amendment would require. The legislation on flexible working aims to encourage a cultural change in the way that employers and employees work together. Much reference has been made to the question of culture this afternoon. Experience tells us that cultural change does not happen overnight and certainly not within one year. Culture change is best measured through survey data on how employee behaviour and attitudes are changing. For this reason it is right that any review of flexible working promotion gives the legislation the opportunity to change cultural behaviours before it is reviewed.

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Nevertheless, I am grateful to the noble Lord, Lord Stevenson, and the noble Baroness, Lady Lister of Burtersett, for the opportunity to discuss this in Committee. I hope that the commitment for review I have made today will reassure them, and I ask the noble Lord to withdraw his amendment.

Lord Stevenson of Balmacara: I thank the Minister for his comments. The timescale seems incredibly long—seven years is too long—but I will read Hansard carefully and reflect on what he has said, and we will consider our position. In the mean time, I beg leave to withdraw the amendment.

Amendment 267E withdrawn.

Amendment 267EA

Moved by Baroness Pitkeathley

267EA: After Clause 98, insert the following new Clause—

“Welfare of disabled children

(1) The Children Act 1989 is amended as follows.

(2) After section 23A insert—

“23AA Welfare of disabled children

Regulations, subject to approval by resolution of both Houses of Parliament, shall provide for those who care for disabled children to have the same entitlement to a carer’s assessment as young carers and adults caring for adults.””

Baroness Pitkeathley (Lab): My Lords, I begin by apologising for being such a latecomer to this Bill, over which so many of your Lordships have laboured long and hard. The reason is simply the clash of commitments that we so often have to contend with in your Lordships’ House: I was very involved with the Care Bill, and it is on the subject of the Care Bill that I now rise to speak.

Your Lordships will know that the Care Bill enshrines in legislation many more rights for carers than hitherto. Adult carers featured strongly in the Care Bill and thanks to the Government being willing to listen and amend the Bill—and to what we might call a pincer movement between the Care Bill and the Children and Families Bill—young carers have similarly been well recognised. However, in spite of much effort—much of it focused in this Bill by many noble Lords and noble Baronesses present today—the rights of parent carers remain weaker than those of other carers.

When I moved a similar amendment to the Care Bill, the Minister was kind enough to say that he recognised my concerns and would consider them. The outcome of those considerations was that the proposal would sit better in this Bill and it is for that reason I am moving it today. Briefly, as I know that many noble Lords are familiar with the issues, the purpose is to strengthen the rights of those who care for a disabled child to receive an assessment of their need for support in line with the assessment rights of adults caring for adults and of young carers.

It is vital that the rights of parent carers to assessment and support are not lost in the current legislative reform of carers’ rights and that their rights are enhanced along with those of other carers.

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Like other carers, parents of disabled children already have an existing right to request a separate assessment of their own needs, which is in addition to having their needs assessed as part of their child’s assessment under the Children Act 1989. The existing rights for parents to have their needs assessed separately were introduced in three Private Members’ Bills, with which I was involved and which will be familiar to many of your Lordships. The three Acts were taken through Parliament with cross-party support, in recognition of the huge contribution that carers make and of the need to set out clearly in law their rights to receive support for their care and their right to a life outside caring.

8 pm

The purpose of a carer’s assessment is to look at the impact of the caring on the parent and on their ability to provide care for the child. It is not about putting the needs of the parent before those of the child but about ensuring that, where parents have support needs relating to their caring role for a disabled child, those needs are assessed and met. It has been recognised by successive Governments and by all sides of the House that parents caring for disabled children have different needs from other parents. They have different responsibilities and different barriers to accessing employment, for example. Your Lordships will be familiar with the fact that it is three times more costly to bring up a disabled child than a non-disabled child and that parent carers are more likely to be reliant on income-based state support, more likely to suffer relationship breakdown and divorce, and three or more times more likely to suffer ill health and health breakdown than parents of non-disabled children. A striking statistic has come into my hands today from the State of Caring survey, carried out by Carers UK, which surveys 350,000 carers. It found that a third, or 32%, of all full-time carers go without any practical support, rising to almost a half—47%—of carers who are caring for a disabled child aged under 18.

I understand that Carers UK is meeting officials from the Minister’s department shortly and that the Minister has agreed to a meeting with Paul Burstow, from another place, who is also concerned with this issue. I must emphasise that the most common reason for parents being turned down for an assessment is that children’s services are seen as being responsible for assessing the children’s needs and not those of the parent. The current law is not well understood nor is the limited existing legal right to a separate parent assessment well understood by social care practitioners. If changes are not made to bring these rights into this Bill, it will become more difficult for those working with disabled children to understand and use the law. Not only will parent carers not have their rights enhanced but they will find it harder than ever to use the existing legal rights.

I hope that the Minister will not only agree to the meetings that I have mentioned but will also act on the recommendation of the Law Commission that existing duties to assess parent carers should be amended to make them consistent with the adult social care statute. I would also like his response on how the existing rights to a separate assessment for parent carers are to

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be reflected in the regulations and guidance accompanying this Bill. If nothing is done, the parents of disabled children under 18 will be left with the lesser and inconsistent right to assessment and support that will remain only in rump legislation. Front-line professionals will have to navigate complex legislation in order to assess and provide support to those caring for children. Parents of disabled children under 18 who already have difficulty in accessing support will find it even harder in the future. I urge the Minister to accept this amendment or at least to commit to looking into this situation further. I beg to move.

Baroness Lister of Burtersett: My Lords, I am pleased to have been able to add my name to the amendment moved by my noble friend and apologise for having jumped the gun on this issue on our 10th day in Committee. The Minister, in replying, said then:

“There is a strong framework of support already in place to support parent carers under the Children Act 1989 and in new provisions in Part 3 of the Bill”.—[Official Report, 11/11/13; col. GC 196.]

However, this is not how carers’ organisations see it. They are arguing for a stronger and more coherent right to an assessment on behalf of parent carers. My noble friend has made the case very well and I will not add much to that, but it is important that we take this opportunity to consolidate and clarify the law for parent carers alongside that of adult carers and young carers.

I find it strange that Mr Timpson in the Commons argued in a Written Answer to Paul Burstow:

“Amending the Children Act 1989 to assess the needs of parent-carers separately from children would risk the needs of the children becoming second to those of their parent”.—[Official Report, Commons, 11/11/13; col. 506W.]

I cannot see the logic of this argument, given the whole-family approach that the Government are quite rightly espousing—and my noble friend has disputed the argument. Could the Minister clarify why the Government believe that this would be the case? Why does it undermine the rights of the children to have a clearer right for their parents when the family is living as a family?

It is important to make sure that parent carers’ entitlement to assessment and support is better understood as well as strengthened. There seems to be confusion over this. Both the Minister’s response when we last discussed this briefly and the Government’s response to the Joint Committee on Human Rights referred only to the Children Act and not to the rights that exist in the carers legislation. The point has been made that we run the risk of burying this important entitlement under layers of law and a confusing web of guidance. It almost seems as if it is so deeply buried that the Government themselves are not totally aware of the nature of all these rights. This is an opportunity to clarify and to bring it into the new legislation so that it is not left behind in what my noble friend has called “rump legislation”. This is a vital opportunity that we really must not lose. I am glad that there is going to be a meeting and I hope that the Minister can clarify why there is this belief that the needs of children are being pitted against those of their parents. I hope that we can resolve this because it is not, in a sense, producing something completely new.

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Baroness Tyler of Enfield: My Lords, I rise briefly to lend my support to this amendment. The hour is late and I will be brief. I am one of that band of noble Lords who were involved at all stages of the Care Bill and I think we have made great strides in joining up the Care Bill and the Children and Families Bill. I salute Ministers for having done that. I particularly pay tribute to Ministers for what they have done on young carers. We now have a set of rights for young carers which is so much stronger than before and that is a real landmark. Through the Care Bill, we have got improved rights for adult carers to assessment and support, and I applaud the Government for doing that. We have got much improved rights for young carers through the Children and Families Bill, linking in nicely with the Care Bill, and again I applaud the Government for doing that. We just have this one group left: the parent carers, who generally care for disabled children. If we could just get that missing bit of the jigsaw all sorted out so that all carers had the same set of rights to assessment and support, I think that it would be a tremendous step forward for carers in this country. I am encouraged to hear that meetings are still taking place and I hope that the Minister may have some encouraging news for us that the missing bit of the jigsaw is going to be put into place. We can all then be absolutely proud of what these two Bills together have done for carers.

Baroness Howe of Idlicote: My Lords, very briefly, it was only about an hour ago that we had exactly the same situation having to be sorted out for kinship carers. For goodness’ sake, parent carers are about as kinship as you can get, and if they cannot be rolled into the same set up of proper analysis and proper attention to their needs, then what can happen? I hope the Minister is going to move this thing on as quickly as possible.

Baroness Hollins (CB): My Lords, parents of disabled children often do not see themselves as carers, but they are. Their need for support has been argued and won over the past 20 years. They really are different from other parents. Their right to be able to have a life alongside caring for their disabled child has been fought for very successfully. Parent carers are often so focused on the needs of their child that they forget about their own health and well-being. It could be argued that failing to recognise the needs of the parent carer is against their right to a family life under the Human Rights Act. I was involved with a WHO/Europe declaration, Better Health, Better Lives, which was about the health and well-being of children and young people with intellectual disabilities across Europe and their families. It was signed by all the Health Ministers, including our own, in 2012. One of the 10 recommendations was about identifying the needs for support of parent carers. I join my voice to that of the noble Baroness in this amendment. What is the Government’s rationale for allowing that the carers of a disabled 13 year-old would effectively have rights inferior to those of the carers of an 18 year-old? I hope that the Minister will be able to respond.

Baroness Howarth of Breckland: My Lords, I wish to support the noble Baroness, Lady Pitkeathley, in this amendment. The Minister is right in saying that

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the framework is there in the present legislation or, at least, it should be there. The difficulty is that, because the focus among those who make assessments is split between adults and children and we do not have holistic family assessments, often the parents are lost. A family whom I met recently had just, after many years, been given a period of respite care, but the parent carers had not realised that that would make the difference in their being able to continue to care for their son, an extremely difficult young man. A series of workers had never suggested to them that their needs might be met in order to meet the needs of their child. That is the important message that front-line workers need to understand. This amendment would help them to understand that, unless you meet the needs of parents, you do not meet the needs of children.

I, too, had this query when I heard that it had been commented that to assess parents would undermine the rights of children. Assessing parents enhances the rights of children. Many of us who have worked in this field and continue to work with and meet families see it regularly. We also see when people fail to notice that parent carers are beginning to fail, simply because of their exhaustion and the fact that they have had no relief and no assessment for any kind of services, sometimes quite small ones that would make all the difference to their being able to continue.

I support this because we should have a family approach whereby children with disabilities will be maintained in their own homes rather than having to go into caring facilities because their parents are unable to look after them. I am losing my power of speech, like most of us at this time of night, so I leave it there. My only other point is that the noble Baroness, Lady Tyler, made a passionate speech about integration, which I think we all feel should happen.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con):My Lords, I welcome the opportunity to debate the important issue raised by the noble Baroness, Lady Pitkeathley. I recognise the tremendous job that parent carers of disabled children do and the challenges that it can bring. It is right that children’s legislation is the place to address this. I am pleased that the Minister for Children and Families will be meeting Paul Burstow to discuss this further.

We are confident that there is a strong framework of support in place to support parent carers of disabled children. Parent carers’ needs can be assessed as part of assessing the needs of children in need under the Children Act 1989. Local authorities can provide services to the family members of a child in need with a view to safeguarding or promoting the child’s welfare.

As parents, and as adults caring for children, parent carers are in a very different position from adults caring for adults or young carers. We should be wary of simply replicating arrangements that are in place for those other carers without understanding the interrelationship with other legislation and the potential for unintended consequences. Unlike for young carers, where we have responded to specific concerns and substantial evidence, there is a lack of evidence for the need to change the type of support or the way in which it is provided for parent carers of disabled children. That is not to say that everything is perfect,

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nor to underplay the challenges that parents of disabled children face, nor to claim that all parent carers receive the support that they need. However, it is not clear that specific changes to legislation are the answer.

8.15 pm

We are clear that any change to the Children Act 1989 to assess the needs of parent carers separately would change fundamentally the principles of the Act and risk the needs of the children becoming second to those of their parent. Recent serious case reviews for Daniel Pelka and Keanu Williams have shown starkly what can happen when the needs of parents are put ahead of those of the child. Our approach to legislation and statutory guidance is that the needs of the individual child are paramount. That support for parents is important to improve outcomes for the child. The Government have invested significantly in support for parent carers of disabled children. That includes committing over £800 million for local authorities to invest in short breaks for disabled children between April 2011 and March 2015 through un-ring-fenced grants backed by new duties introduced in 2011.

The reforms outlined in Part 3 of the Bill, along with wider reforms in education and health, will strengthen the current system further for children and young people with SEN, including those who are disabled, and will give much greater and more joined-up support to parent carers. We should also review the draft SEN code of practice to ensure that the existing legislation is clarified to make very clear the support that is available to parent carers. I have listened to noble Lords’ comments today and I will pass them on to my honourable friend the Minister for Children and Families prior to his meeting, so I urge the noble Baroness, Lady Pitkeathley, to withdraw her amendment.

Baroness Pitkeathley: My Lords, I had hoped that we were making a bit of progress, but I am having a kind of throwback moment. When many of us first started getting the issue of carers on to the social policy agenda—many noble Lords here will remember that—I used to be told, “Oh, you can’t think of the needs of carers. The needs of the disabled person or the older person have to be paramount and you’ve got to think of those first. If you look at the rights of carers, you’re going to undermine those roots”. I am hearing the same argument tonight and I find it extremely disappointing. However, we made progress on the other matter: everybody now understands that you can look at the rights of the disabled or older person and the rights of carers and not undermine either of them—the two are inextricably entwined. Therefore, I continue to hope that we will still be able to make progress. We have fundamentally failed to get Ministers and their officials to understand that there is a difference between being the parent of a disabled child and being a parent. There is a fundamental difference and it needs to be looked at. Having had the support of so many of my noble colleagues tonight, I feel that I have a window to come back to this on Report. However, in the mean time, I beg leave to withdraw the amendment.

Amendment 267EA withdrawn.

Schedule 7 agreed.

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Clause 99: Time off work to accompany to ante-natal appointments

Amendments 267F to 267KB not moved.

Clause 99 agreed.

Clauses 100 to 103 agreed.

Clause 104: Dealing with applications

Amendment 267L

Moved by Lord Stevenson of Balmacara

267L: Clause 104, page 112, line 10, leave out “If an employer allows an employee to appeal” and insert “Where an employee appeals”

Lord Stevenson of Balmacara: My Lords, we had been led to believe that this session would finish at 8.15 pm but I have not been briefed about what will happen, so I am in something of a quandary. I wonder if the noble Lord would explain what the position is so that we can understand better what our responsibilities would be to the Bill, before I speak.

Lord Popat (Con): My Lords, I have spoken to the Chief Whip, and we need to complete the Bill today.

Lord Stevenson of Balmacara: I am glad to hear it, but what has that got to do with me?

Lord Popat: We must debate Amendment 268.

Lord Stevenson of Balmacara: I find this very unsatisfactory. As the noble Baroness said, we are all losing our marbles, if not our words. Trying to get through the Bill at this late hour when there are still two very substantial amendments to go is not what was agreed through the usual channels and certainly was not the basis on which we came into this discussion. I continue, but I do so with the feeling that this is not in the spirit of the best use of our time, and your Lordships’ House will be the worse for having to debate late into the night issues that should have seen the fresh light of day—perhaps next Monday, when of course there will be time.

Clause 104 was in my mind when I started the debate earlier—it seems a long time ago now but was in fact earlier this afternoon—by saying that while the Opposition were broadly happy with the measures contained in Parts 6, 7 and 8 of the Bill, there were one or two bits of grit, and this is one of them. Amendments 267L and 267M and the clause stand part Motion are grouped together in one place so that we can have a debate about them. While they all bear on the same area, they obviously have different impacts. My preference would be for the clause to stand part because I believe that what the Government are trying to do here is antipathetic to the very spirit of British law, which has always recognised the need for a person with a legal case to have the chance to make that case in a court of first instance but, where there have been problems or difficulties with that, the person would then have the right of appeal against decisions taken in the first instance. However, the Bill as it is drafted removes the process by which an employer must respond to an employee’s flexible working request and replaces it

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with a requirement to respond in a reasonable manner and within a timeframe of three months. We had a debate earlier about the word “reasonable”, and on that occasion the Minister felt unable to accept that word because he felt it was not appropriate for the context in which we were discussing it, although it has come back several times since and he has been quite happy with it. We have a situation here where reasonableness, which in the earlier amendments was a burden on employers, is now okay for employers to use.

The current processes include the provision for an appeal by an employee, and this obviously provides a useful opportunity to discuss why things have not worked out in terms of the process, but the Bill removes that. The history to this is interesting. ACAS consulted on a draft code of practice for the extended right to request flexible working, and employer bodies such as the CBI, the FSB, recruiters, the TUC, EHRC, Opportunity Now and Working Families acted as advisers on the draft code. The group agreed, and the draft code recognised, that an appeal is important. The draft code said:

“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application”.

Anybody reading that would recognise its antecedents in criminal law and civil law where clearly those who have cases—as I have said—can make them in the first instance and then, if there are difficulties, can appeal against some of the decisions in order that they can be better refined and reconsidered. We believe it is important that the Bill and the code are consistent to provide clarity to employers and certainty to employees that appeals are to be allowed. The amendment would make it clear on the face of the Bill that appeals remain an important part of the process of considering flexible working requests.

In Committee in the Commons, the Government argued that the amendment would mean that an employee always had a right of appeal, and that this would be burdensome and bureaucratic in a very small organisation. If it was an absolute right of appeal, that might be the case, but appeals are usually constrained by matters of fact or law and one would expect that normal processes would be applied. We argue that a very small organisation would be able to deal swiftly with an appeal, but allowing an appeal is important for procedural fairness and may reduce the use of grievance procedures instead. Sometimes employers do not give a statutory business reason for refusing a request, and that could give rise to an appeal. In addition, once the employee understands the employer’s business reasons for refusing a request to work flexibly, they may be more able to negotiate a solution, so it is a win-win all round.

I would ask the Minister to think again about this issue. It is important to retain what we normally expect as the right approach towards consideration of these quasi disciplinary matters. I beg to move.

Viscount Younger of Leckie: My Lords, I welcome the debate on the new arrangements for considering a statutory request for flexible working. Even at this late

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hour, I recognise the importance that the noble Lord, Lord Stevenson, attaches to this amendment and I hope that my reply attaches the same degree of importance to it.

The current right to request flexible working has been a success, with 80% to 90% of requests being accepted. However, that does not mean that the right cannot be improved. Clause 104 will remove the statutory procedure for dealing with applications for flexible working and replace it with a duty on employers to consider applications in a reasonable manner. Many employers like the structure and confidence that the current procedure gives them when considering applications. Those employers will be able to continue to use this procedure even when it is not compulsory and can be confident that in doing so they will be likely to be acting in a reasonable manner. Many other employers, however, would like to consider applications in innovative and effective ways which are currently not allowed by the statutory procedure.

The Government have asked ACAS to develop a statutory code of practice to explain to employers what will be considered to be reasonable when considering a flexible working application. ACAS consulted in February this year on the contents of the statutory code of practice. The consultation version of the code of practice states:

“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application”.

The Government want to encourage employers to allow their employees to appeal a decision where it is appropriate. However, it may not always be appropriate. This extension to the right to request flexible working aims to encourage more employers to consider how flexible working could work within their business. It is not about creating or maintaining a process and procedure for employers to follow. I would like to reassure the noble Lord, Lord Stevenson, that while the Government do not believe that offering an appeal will be appropriate in all circumstances, we anticipate that the statutory code of practice and the supporting guidance issued by ACAS will encourage employers to offer their employee an appeal and to explain the benefits that offering an appeal can bring. Accordingly, I ask him to withdraw his amendment.

Lord Stevenson of Balmacara: Perhaps the noble Viscount could run through that last bit again. I am sorry, it is late and I am not working quite to my maximum efficiency. One of the points I made in my speech was the discontinuity between the code and what is being said in the legislation. If the code is going to say that the reasonable expectation is that employers shall provide an appeal, why is it not also appropriate to ensure that the statute says the same thing?

8.30 pm

Viscount Younger of Leckie: We believe that the supporting guidance issued by ACAS will be enough to act as a nudge factor to encourage employers to offer an appeal. Together with the guidance that we will be providing, we believe that this will explain the

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benefits that offering an appeal can bring. I hope that this provides reassurance, short of bringing in legislation. The code is statutory, so it should be read alongside the legislation.

Lord Stevenson of Balmacara: All right, I think I am getting there. There will be a code which will have statutory backing. The code will make it very clear that an employee making such a request which has been turned down, perhaps for no sufficient reason, will have a statutorily underpinned right to appeal that because that is what the code, which is expected to be applied by employers, will say. The noble Viscount does not need to come back on that but perhaps he can write to me on the point.

I am missing my letters—I have not had a letter from the noble Viscount for at least a week. For those of your Lordships who may think that this is a rather recherché, arch exchange across the Committee Room, we have a running joke between us because of the number of times we have to appear opposite each other. The noble Viscount has gained an enviable reputation for being a prolific letter writer. Whenever there is a doubt, we get a letter, so on this occasion, may I have my letter and I will consider it? The noble Viscount is going to speak again, so I cannot.

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Viscount Younger of Leckie: I can reassure the noble Lord that I would be delighted to furnish him with yet another letter and I will make sure that the reference is clearly written on it. The noble Lord mentioned the word “grit” earlier this afternoon and I hope that I can reassure him that the grit in the code is the statutory backing, and that the code is to be read alongside the legislation.

Lord Stevenson of Balmacara: Not all grit is bad grit. An oyster produces pearls. Perhaps on this occasion the pearl has been provided. On that basis, I am happy to withdraw the amendment.

Amendment 267L withdrawn.

Amendment 267M not moved.

Clause 104 agreed.

Clauses 105 and 106 agreed.

[The Official Report of the remainder of the Sitting will be published on Friday 22 November.]

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Grand Committee

Wednesday, 20 November 2013.

Children and Families Bill

Committee (12th Day) (continued)

[This is a continuation of the Official Report of this sitting, and follows on from column GC 484.]

8.32 pm

Relevant documents: 7th, 9th and 11th Reports from the Delegated Powers Committee, 3rd Report from the Joint Committee on Human Rights.

Amendment 268

Moved by Baroness Benjamin

268: After Clause 106, insert the following new Clause—

“Part 8AChildren participation in performances

Children participation in performances

(1) Section 25 of the Children and Young Persons Act 1933 (restrictions on persons under eighteen going abroad for the purpose of performing for profit) is amended as follows.

(2) For subsection (1)(a) substitute—

“(a) for the purposes of taking part in a performance to which section 37(2) of the Children and Young Persons Act 1963 applies,”.

(3) In subsection (1)—

(a) for “this section” substitute “section 37 of the Children and Young Persons Act 1963”,

(b) omit paragraph (a) and after “granted in respect of him under” omit “this” and after “section” insert “37 of the Children and Young Persons Act 1963”.

(4) Subsections (2) to (11) of the Children and Young Persons Act 1933 are omitted.

(5) Section 37 of the Children and Young Persons Act 1963 (restrictions on persons under 16 taking part in public performances, etc.) is amended as follows.

(6) After subsection (2) insert—

“(2A) For the purposes of subsection (2), a performance does not include participation in—

(a) filming by private individuals for uploading onto the internet for transmission (“user generated content”);

(b) observational documentaries in which the child’s life and routine remains to a significant degree the same as it would have been had filming not been taking place;

(c) unplanned and spontaneous filming where parental consent is subsequently obtained for the purposes of broadcasting;

(d) filming in the context of news and current affairs journalism, or filming in the public interest in circumstances where it is not practicable to apply for a licence, without prejudice to the effect of sections 39 and 49; or

(e) any further category as the Secretary of State may specify by way of regulations.”

(7) After subsection (3) insert—

“(3A) Where subsection (2A)(b) to (e) applies such that no licence is required, the person responsible for filming the child shall carry out an assessment of risk prior to the filming taking place, save where it is not possible to do so, in which case such a risk assessment must be carried out as soon as possible after such filming takes place.”

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(8) In subsection (4) after “will not suffer” insert “and in particular, that the child would not be subjected to any risk beyond that involved in the ordinary course of their life”.

(9) In subsection (5) after “imposed by the authority” insert “; such conditions shall however, seek to minimise any differences in conditions imposed in relation to different media and any such differences must be necessary and objectively justified for the purposes of protecting the child against a specified risk, and in particular, regulations shall not prohibit the recording or broadcast of live performances where the child’s participation in that live performance is permitted by the relevant licence”.

(10) After subsection (1)(b) insert—

“(c) go abroad for the purposes of a performance to which subsection 2 applies save that this subsection shall not apply in any case where it is proved that the child was only temporarily resident within the United Kingdom.”

(11) Section 38 is repealed.

(12) Section 42 is repealed.”

Baroness Benjamin: My Lords, first, I declare an interest as an independent film and television producer, making predominately children’s programmes.

So far, we have had a great deal of rich debate on the Children and Families Bill—right to the very end. The majority of our debates have had the protection of children at their very heart. This is no less the case with this set of amendments on child performance—a subject very close to my heart.

For children, having the opportunity to participate on a film or television set, on stage or in a sporting event can be of huge benefit. It may be an exciting step in their performance career, give them an all-important confidence boost or simply be something that they remember for ever.

However, at the moment many children are prevented from taking part in performance due to antiquated and out-of-date legislation from the 1960s. That was a time when there were only three channels, and there were not the wide variety and diversity of opportunities for children that are available today. More importantly, the current legislation fails to provide strong safeguards and protection for children in today’s changing environment. The current legislation is simply not fit for purpose and desperately needs updating.

Under the current regime, seeking a performance licence can be difficult, time-consuming and unpredictable. Some local authorities simply act in such a way as to deny licences to children in their region as a matter of course. Others feel that they must apply the current legislation to the letter, and therefore they, too, deny children licences in their regions, while others try to help parents, children and the industry by pushing the confines of the legislation as far as they feel they can. With some local authorities licensing freely and others failing to do so, we have what can only be described as a postcode lottery in which there is no equality of opportunity for children. This is clearly not what we should be promoting in a progressive and diverse country such as the UK.

In 2010, Sarah Thane, who was a content and standards adviser at Ofcom, carried out a comprehensive review into all aspects of child performance regulations. The report concluded that the system of licensing child performance needed urgent and radical overhaul. In February this year, the Government published the

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results of a wide-ranging public consultation. While a range of views was given, there was broad consensus in many areas, including on the fact that legislative change was needed to improve the situation.

I am sure that noble Lords will have noticed that there is no current wording on child performance in the Children and Families Bill. However, I see the Bill as an ideal opportunity to deliver much-needed change and to provide a better legal framework that will both protect and safeguard children and young people and, more importantly, give them equal access to opportunities. The changes will give clearer guidance, transparency and consistency among local authorities when dealing with these matters.

At this stage of the Bill, I am not suggesting that we try to change the whole of the out-of-date 1960s Act. These focused and targeted amendments are addressing the major concerns that urgently need reform. So what do they seek to achieve? I will talk about three key areas of focus: first, improving equality of opportunity; secondly, improving safeguarding and risk assessment; and, thirdly, working with local authorities to achieve compliance.

On equality of opportunity, at the moment not all children or even types of participation and performance are treated equally. Currently, the narrow definition covers only acting, singing or dancing and does not include the wealth of opportunities available to children in the 21st century, such as observational documentaries, reality shows or educational programmes. Only recently, an important educational documentary, which was to be filmed at the British Museum, nearly did not get the go-ahead because of the failures of the current legislation. These amendments would do away with this restrictive definition and allow all children under 14 to participate in a range of performances.

At this point, I want to make it absolutely clear that the rules in the amendments would not cover circumstances where someone has filmed content and put it on the internet themselves—also known as user-generated content—or where the filming involves children in the ordinary course of a child’s life, in which case there is no impact on them. This would include documentaries, news and vox pops, where it is simply not feasible to seek a licence in advance.

However, even here the amendments would still require a risk assessment and duty of care for the child when the programme is broadcast. The amendments would also put an end to different mediums, such as television and theatre, being treated differently. This would end the bizarre situation—for example, as happens with the Royal Variety Performance—where children cannot perform after 7 pm purely because the live theatre show is also being broadcast on television. Had the cameras not been there, the children could have performed. This is becoming a recurring problem as many theatre performances involving children are now being recorded live to be shown in cinemas across the country to make art and culture more accessible. Noble Lords might have read recently about the talented choirboy who missed out on the experience of a lifetime of performing in the Royal Albert Hall at the Last Night of the Proms. Because the selected young

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soloist would have been singing after 7 pm, the organisers had to use an adult to sing instead. The young boy was denied a wonderful opportunity.

I now turn to improving safeguarding. These amendments have the safeguarding and protection of children at their very heart. Even though we are removing old and narrow definitions, this is absolutely not about deregulation. It is about better and more consistent regulation. The amendment would introduce a proper risk assessment for producers to complete which would be approved by local authorities. The risk assessment will cover all health and welfare issues and ensure that they are properly and professionally addressed. These changes will provide clarity and consistency. They will also make sure that any British child performing overseas has the same level of protection as a child performing in the UK. This does not happen at the moment.

Finally, on working with local authorities to achieve compliance, from my conversations with the Local Government Association, I have found that it is supportive and agrees that times have changed since the 1960s. It, too, feels that the legislation needs to be updated. I have met Councillor David Simmonds, the chair of the LGA children’s board. He expressed the LGA’s concern about the existing regulations and said how exposed and uncomfortable it feels with them as they stand. This is why we need to be working with local authorities now, as they, too, recognise that the creative industries are an important driver of the economy and offer many employment and personal development opportunities.

If the amendments are agreed, the industry will work with the LGA to develop a risk assessment framework that will streamline the system and reduce bureaucracy. These amendments are absolutely not about creating more work and headaches for local authorities. The legislation would put the responsibility in the hands of the producer to achieve the required standards of risk assessment. This would be delivered through an agreed and standardised format. Local authorities would then be freed to learn more about the work of production companies and to focus more on the critical compliance issues. A great deal of work has already been done by the industry to develop a risk assessment framework, and it is ready to be developed further.

Finally, I point out that these amendments have been developed in collaboration with an industry-wide coalition of public service broadcasters, including the BBC, ITV, Channel 4 and Pact—the Producers Alliance for Cinema and Television. There is strong support from the National Network for Children in Employment and Entertainment, chaperones, schools and child psychologists. The amendments also have cross-party support, including from the noble Lord, Lord Inglewood, chair of the Lords Communications Committee.

I hope the Minister will agree that this Bill offers a key opportunity to address safeguarding for children around performance. These amendments would make sure that all children, no matter where they live around the country, have equal and safe access to positive development opportunities. So let us take this opportunity to update antiquated legislation that is not fit for purpose. We simply cannot leave this for another

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50 years. I ask the Government to support these amendments and send out a clear message to all involved with child performance regulations that government are taking action now. I beg to move.

8.45 pm

Baroness Howe of Idlicote: My Lords, I am a firm supporter of child protection, as well as someone with a long-standing interest and involvement in broadcasting issues. The amendment in the name of the noble Baroness, Lady Benjamin, aims to improve the legislative framework to the benefit of both those areas, ultimately providing children with more opportunities to participate in performances of all kinds under a clear and robust framework of protection. I therefore very much welcome and support Amendment 268.

Most of your Lordships will be familiar with the appearance of children on our television screens, whether it is in documentaries, dedicated children’s shows, dramas or entertainment programmes. Children benefit from these appearances by gaining confidence and new skills, and it is important for society as a whole that children are both seen and heard in the media. Equally, we can all agree that children should have the right to participate in such programmes and that the process for ensuring that they are appropriately protected should be clear and consistent. As we have heard, unfortunately at present this is not the case.

In particular, I welcome the comments made by the noble Baroness, Lady Benjamin, around improving equality of opportunity. I have been a long-standing campaigner for equal opportunities for adults, and they are of equal importance for children. The noble Baroness talked about how some local authorities deny children in their regions the opportunities to participate, while others try to navigate the legislation. It cannot be an acceptable state of affairs for some children to be given the opportunity to participate in a programme while others are denied it purely because of the lottery, as the noble Baroness said, of where they happen to live. That must be changed so that all children of all ages can participate in a full range of programmes.

Protection of the child is at the heart of our discussions throughout the Bill and must be at the heart of any considerations here. I am assured that the broadcasting industry is not looking to get out of its responsibilities. As the noble Baroness, Lady Benjamin, said, this is about better regulation, which is the goal of all who sit in this House. The amendment would introduce a comprehensive, standardised risk assessment, covering all possible health and welfare issues, and make it more efficient and consistent. It would be underpinned by the existing regulatory framework that would continue to be in place.

Broadcasters are obliged under the Ofcom Broadcasting Code to have a duty of care to the,

“physical and emotional welfare and the dignity of people under eighteen”,

participating in programmes. That applies to all television programmes at all times. I know that a great deal of guidance is issued and that efforts are made by all in the industry to meet these responsibilities.

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The amendment is aimed at providing much-needed reform to the current system and replacing it with a more consistent, clearer and, above all, fairer framework that puts risk at its heart. That means that rather than spending their time trying to navigate the complex laws and arbitrary definitions, the production companies, local authorities and broadcasters can better spend their time analysing the real risks and putting child protection more at the heart of their work. These changes will provide clarity and consistency to ensure that every child in performance is properly protected and that all children are licensed. I therefore urge your Lordships, particularly the Minister, to support this amendment.

Viscount Colville of Culross (CB): My Lords, I declare an interest as a television producer for the BBC. I support the amendment. It will both encourage children to extend their skills and protect them from the possible threats posed by the proliferation of new media platforms. It responds to the explosion in the range of media in which children can now appear. It takes into account the ever-changing programming available today, as factual and entertainment programmes are commissioned to entertain an audience with an increasingly short attention span and greater demands to be surprised and shocked.

The amendment would introduce a consistent local authority licensing system for under-16s who perform in the visual media, as we have already heard. As a television producer, it might seem odd that I should want to make my life and that of my colleagues more difficult by extending the regulatory regime, so that we would have to do more work when preparing for a production that involves young people. But it is because I am a television producer that I am well aware of how the present regulatory system is failing children. It often frustrates the hopes of children while failing to protect them from the dangers that may await them.

The noble Baroness, Lady Benjamin, explained the chaotic postcode lottery of different local authorities and their responses, which is very difficult for producers in the media who want to work with children. There is a case of children in a school that served two neighbouring local education authorities. The school was asked to take part in a concert to be broadcast on television. But when it came to transmission, only half the choir had permission to perform. One authority had given a licence to perform and the neighbouring authority had refused. How on earth can that be fair on the children involved?

Subsection (6) of the proposed new clause is in line with paragraph 104 of Sarah Thane’s review, which calls for a proper definition of what constitutes “performance”. The subsection is very important. It spells out which filmed activities involving children do not require a licence, although they will still of course require permission from parents and head teachers. It makes clear that everything else would be covered by the licensing system. The result would be that many new genres, which at present are not covered, would be included.

For instance, there is a new type of programming called structured reality TV, which masquerades as observational documentary while in fact the participants

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are open to direction. The genre covers shows such as “The Only Way is Essex” and “Made in Chelsea”, with which I am sure your Lordships will be familiar, which are massively popular with a young audience. At the beginning of the show “TOWIE”, viewers are mischievously warned, “Some of the tans you see might be fake, but these are real people, although some of what they do has had a little nip and tuck purely for your entertainment”. The warning should give the Committee a clue that the characters are subject to a narrative created by producers in which they are directed in a situation to ensure maximum drama, violence and even sex.

The Committee will be pleased to hear that at the moment most of the participants in these shows are aged over 18, but there are attempts to commission versions with much younger characters. The executive producer of “The Only Way is Essex” has said that when the producers are casting characters for these reality shows, they have to read them what is called “the talk of doom”, in which they warn them that people chosen to appear in the show will be recognised and abused in the street, their private lives will be watched and criticised by millions and their lives will be completely changed, not always for the better.

Apparently, the candidates, all from the social media generation, look at the executive producer with blank incomprehension. They cannot understand why they are even being warned about this. These young people’s private lives are already open books, thanks to social media. I fear that there is a generation who do not understand how psychologically damaging it can be have your privacy destroyed. We as lawmakers need to protect them and ensure that in an ever-changing media environment they are not exploited by the ruthless demands of the media.

Subsections (7), (8) and (9) of the proposed new clause are in line with the recommendations in paragraph 92 of Sarah Thane’s review, which suggests that, when it comes to licensing, the focus should be on the child—on what they are being asked to do and on the level of risk involved. This would ensure, as has already been said by noble Lords, that the consideration by local authorities of the risk to children is uniform and thorough. At the moment, decisions made by LEAs can be irrational. There was recently a case of a six year-old boy who was mentored and trained by the Olympic diver, Tom Daley, and who wanted to appear with him on the ITV show, “Splash”. All he wanted to do was dive with his hero on television, but at the last minute his local LEA in Cornwall refused him a licence to appear on the grounds that he was too young. You can imagine his disappointment.

If this amendment is adopted, a licensing code of practice will be rolled out uniformly to all local authorities across the country. Its risk assessment will cover the mental and physical health of the young people taking part in performances. Obviously, the risk assessments should be adhered to, but in the present climate of pressures on budgets and the intense competition to surprise and shock audiences across the media, enforcement will be crucial. The new system must include a tough regime of inspection of productions that involve children.

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We are in a new world. The internet and digital television offer us a jungle of diversity and shock. We need to update, streamline and extend our present licensing system. Only then will our children’s performances on the media be directed with their best mental and physical welfare being at the heart of the production. I urge noble Lords to support this amendment.

Lord Storey: My Lords, I am tempted to suggest that perhaps there ought to be some regulations regarding the times that we can perform, so that we know when we will start and finish and that we are being safeguarded correctly—but clearly that is not going to happen.

I went along to an all-party group looking at children and young performers in the media. I did not realise the problems that not only children face in terms of safeguarding. I am being told to shut up—you see, I cannot even perform.

I will make three very quick points. First, the legislation that was quite rightly introduced in the early 1960s was to protect children, but since then history has moved on. Times have moved on. Never mind a few television channels, we have hundreds of them. We are seeing the law being broken. There are television shows that are breaking the law. There are others that are playing by the outdated 1960s regulations. For example, a poor lad wins a talent competition, but because the witching hour has passed, he has to sit in the audience and cannot be part of the winning group.

I remind noble Lords of the three concepts that my noble friend Lady Benjamin spoke about: consistency, transparency and making sure that safeguarding happens. Currently, safeguarding does not happen. If we take only one thing from this rather truncated discussion, it should be that safeguarding children has to be not only about safeguarding them as individuals but about safeguarding their opportunities. It cannot be right that children in some local authorities are allowed to take part while in other local authorities they are not.

When the Minister replies—briefly, no doubt—I ask him to consider how we can make this happen, because we cannot have legislation trying to protect our young people that goes back to the early 1960s. I had lots more to say, but perhaps I can save that for another time—or, hopefully, not.

Lord Stevenson of Balmacara:My Lords, I thank noble Lords who contributed to this debate. It is a good topic and one which we have been happy to put our names to in order for it to have the best possible chance of being successful.

The noble Baroness, Lady Benjamin, will not mind me saying that when I first came down as a raw and untutored-in-the-cinematic-arts person from Scotland, she was one of the first people I met. She wowed me then, and she wows me now. That performance—Floella, you were wonderful.

I am very pleased to be able to support this update of legislation that was last updated in 1963. Clearly, as we have heard, the world of television and film performance has been transformed since then. As noble Lords mentioned, it is important that the legislation

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properly reflects the full range of opportunities available to young people and at the same time builds in safeguards that will protect them from exploitation or physical or mental harm.

However, the chance to be involved in film and television work—indeed, this also applies to stage work—depends where you live, with local authorities operating rules in a very inconsistent way. There are also huge disparities in the amount of paperwork required. We need to update the legislation. It needs to widen the types of involvement suitable for child participants and to make sure that it covers the range, as has been mentioned, away from just simply acting and singing. What a wonderful world 1963 must have been if that was all you could do. I would not know. “Stop mucking about”.

9 pm

The key to the proposal is the need for a proper risk assessment to be carried out. It is important that we work out who should do that. I do not think that was as well brought out in the Sarah Thane report as it could have been. The amendments are firm in saying that it should be the producer. That may well be the case, but the traditional categories that have been operating in television and film may not be sufficient to take us forward for another 40 or 50 years. If the Minister is able to take us forward on this matter, we might look again at exactly what the responsibility is, because it is important to get that right.

It is also very important to pick up the point made by the noble Baroness, Lady Benjamin, about the provision for licensing children travelling abroad to perform. So many productions now operate both in the UK and abroad and, indeed, the tax rules for films encourage and support that, so we have to have a system which works whichever side of the channel they are operating on and wherever in the world they work.

It is obvious that an update of this legislation is long overdue, and it is a shame that the Government have not acted so far on the report from Sarah Thane. Before I finish, when I was reading this before, I picked up a point that I know is a nightmare for anybody dealing with this area. I am pretty confident, looking at the civil servants here, that matters of this nature are not reserved. Therefore, we face the possibility that the regulations that may be brought in here will not work in Scotland or Northern Ireland, although I suspect that they will work in Wales. With the burgeoning production activity now happening right across our United Kingdom, we need to be careful that we capture all aspects of that. Again, that is something that can be picked up if the work is taken on. This is an important amendment and something that we should support. I very much hope the Minister will be able to support these amendments.

Before I end, since this will be my last comment tonight, I place on the record my thanks to Hansard, the attendants and, indeed, the others at this end of the table who have been prepared to stay on an extra hour beyond what was agreed between the parties.

Lord Nash: My Lords, I thank my noble friend Lady Benjamin and all other noble Lords who spoke in this important debate. My noble friend Lady Benjamin

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makes a heartfelt case for updating the law in this area. Her long involvement with the performing arts and her work with children make her extremely well qualified to speak on these matters—as of course is my noble friend Lord Colville.

The achievements of the UK broadcasting sector and the importance of the creative arts to our economy cannot be overestimated. Our cultural industries are recognised throughout the world for their groundbreaking innovation and their wealth of creative talent. We are proud of that, and we should continue to support them to grow and achieve. We must nurture our young talent. The child performance licensing system was designed to allow children to take part in performances and, importantly, to ensure that arrangements are in place to protect them when they do. The broad framework has done that effectively and continues to do so. This is also something to be proud of.

The system was designed in an age when broadcasting was in its infancy. New forms of media that are commonplace today were unheard of then. Our attitudes to children and to art have also moved with the times. However, some aspects of the licensing framework clearly have not. That is why, last year, the Government consulted on proposals for change. The consultation highlighted a number of problems. Some problems certainly stem from different local approaches to administration, as noble Lords have said. I welcome Councillor Simmonds’s leadership in tackling this. I recognise his concerns, and I am pleased that the Local Government Association plans to promote best practice to achieve greater consistency and reduce bureaucracy in this area.

We want to see more use of the flexibilities that already exist, especially when children perform in a non-professional capacity. More amateur groups and charities with a good track record for safeguarding should be approved to involve children in performances without the need for extra paperwork. Paperwork does not protect children.

Problems clearly exist in the system, but responses to our consultation were split on some key proposals. We do not agree the case for wholesale legislative change at this time. It is important that we get the balance right between increasing opportunities for children and protecting them from undue risk. We do not intend to take any action that could reduce the protections that are in place for child performers.

I recognise, however, that there are a small number of legal provisions that currently prevent children from taking up opportunities, for no good reason. We heard recently from the Royal Opera House about how an anomaly in the regulations meant it could not screen a ballet performance to a worldwide audience, or even to the home town of a very talented young dancer. The well-being of children is paramount, but there should not be unnecessary barriers to their taking part in performance arts, or to the airing of their talents.

I listened carefully to what my noble friend Lady Benjamin said tonight and at Second Reading, and to what other noble Lords said, and I am delighted that I shall meet her tomorrow. I look forward to that. We will explore what might be done to remove barriers

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without unpicking any of the important safeguards, and we are keen to be as helpful as possible. I therefore urge my noble friend Lady Benjamin to withdraw her amendment.

As this is the last debate in Committee, I take this opportunity to thank all noble Lords—those here this evening and those who have attended previous sittings—for their constructive, insightful and expert contributions to our Committee debates on the Bill. I also thank on behalf of us all the chairs, clerks and Hansard for staying on tonight.

This has been a most thorough and comprehensive scrutiny of the Bill. I and my noble friends Lady Northover, Lord McNally, Lord Attlee, Lord Howe and Lord Younger have learnt a great deal from noble Lords. We have a number of meetings already arranged, and I look forward to speaking to noble Lords here today and to many others about the issues that we have debated. I am committed to ensuring that those discussions move forward constructively so that we can resolve many of the issues that we have discussed ahead of Report.

Baroness Benjamin: I thank my noble friend for that response. I think that there is some sort of encouragement there. I cannot quite read the signs, but I hope that when we meet tomorrow I will get something perhaps a bit more constructive and concrete from him.

I am very grateful to all noble Lords who put their names to these amendments—it means so much to me—and to those who spoke so eloquently at this late hour. It is much appreciated. All noble Lords pointed out that the amendments represent an important step-change in addressing inequality as well as ensuring that there are provisions in place for strong safeguards and protection for all children who wish to perform and take part in any aspect of today’s vast media environment. I am encouraged to hear that the Minister will give guidance and recommendations to local authorities on how to have concise, coherent and consistent guidelines. That is wonderful. I strongly believe that we need to go further. I appreciate that using this Bill to solve the problem of children’s performance regulations might not be possible, but this is an important issue that ultimately will need more permanent change to the current outdated legislation.

I will say something now that I will probably say tomorrow—but I want to say it publicly. I intend to bring a Private Member’s Bill at an appropriate point to deal with child performance regulation, bringing it into the 21st century, to cover the range of concerns that those in the industry have with the existing Act. Will the Minister be able to give me a reassurance that the Government will give strong consideration and support to such a Bill if that were the case?

Lord Nash: I will not give my noble friend that assurance now, but perhaps we can discuss it tomorrow.

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Baroness Benjamin: I thought that my noble friend might say that, but I wanted to say it publicly anyway. I look forward to discussing this matter further. I, too, thank Hansard for staying with us at this late hour to record what we have said on this important issue. With that in mind, I look forward to meeting my noble friend the Minister tomorrow, and I beg leave to withdraw my amendment.

Amendment 268 withdrawn.

Amendment 268A not moved.

Clause 107: Orders and regulations

Amendment 269

Moved by Lord Nash

269: Clause 107, page 114, line 34, leave out subsection (6) and insert—

“(6) A statutory instrument containing (whether alone or with other provision)—

(a) the first regulations to be made under section 49,

(b) an order under section 54(1) or 55(1), or

(c) an order under section 108 which amends or repeals any provision of primary legislation,

is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

Amendment 269 agreed.

Amendments 270 to 273 not moved.

Clause 107, as amended, agreed.

Clauses 108 to 110 agreed.

Clause 111: Commencement

Amendments 273A to 273C

Moved by Lord Nash

273A: Clause 111, page 116, line 5, after “18” insert “, (Local authority functions relating to children etc: intervention)”

273B: Clause 111, page 116, line 5, after “18” insert “, (Objectives and standards for establishments and agencies in England)”

273C: Clause 111, page 116, line 5, after “18” insert “, (National minimum standards for establishments and agencies in England)”

Amendments 273A to 273C agreed.

Clause 111, as amended, agreed.

Clause 112: Short title and extent

Amendment 274

Moved by Lord Nash

274: Clause 112, page 116, line 14, leave out “is” and insert “and section (Duty to support pupils with medical conditions) (duty to support pupils with medical conditions) are”

Amendment 274 agreed.

Clause 112, as amended, agreed.

Bill reported with amendments.

Committee adjourned at 9.11 pm.