5 Feb 2014 : Column 195

House of Lords

Wednesday, 5 February 2014.

3 pm

Prayers—read by the Lord Bishop of Wakefield.

Electoral Registration

Question

3.06 pm

Asked by Baroness Royall of Blaisdon

To ask Her Majesty’s Government what steps are being taken to increase the number of people who are registered to vote in the United Kingdom.

Lord Wallace of Saltaire (LD): My Lords, the Government have announced today that £3.6 million of additional funding will be distributed equitably among electoral registration officers and local authorities, according to levels of underregistration, to help with the costs of local activities for maximising registration. A further £215,000 is being used to fund directly a number of national organisations, as announced yesterday, to develop approaches to maximising registration among particular target groups. The Government welcome all initiatives that promote democratic engagement, such as Bite the Ballot’s National Voter Registration Day today.

Baroness Royall of Blaisdon (Lab): My Lords, I welcome that announcement from the Government and I pay tribute to Bite the Ballot for organising hundreds of events with the aim of registering today thousands of young people to vote. The Minister spoke warmly yesterday of citizenship lessons but warm words butter no parsnips. I strongly urge the Government not to encourage but to ensure that an inspiring citizenship curriculum is taught in every school, including academies and free schools, and that every school should facilitate everyone of or near voting age to register to vote. Will the Government also consider enclosing electoral registration forms with all their official communications with young people, for example those regarding national insurance numbers and driving licence applications?

Lord Wallace of Saltaire: My Lords, the last point is one that I will take back, as we are certainly considering how best to encourage all this. The new citizenship programme for study, which has now been agreed to be taught from September 2014, stipulates that pupils should be taught about parliamentary democracy and the actions that citizens should take in democratic and electoral processes to influence decisions locally, nationally and beyond.

Lord Maclennan of Rogart (LD): My Lords, I welcome the announcement by my noble friend. However, can he say how that money is to be distributed a little more precisely than he did to tackle the problem, as identified

5 Feb 2014 : Column 196

by the Electoral Reform Society, that some 800,000 young people are not registered to vote who are otherwise entitled to do so? Is the money to be directed towards the local authorities, which have responsibility for ensuring that people are registered? Will he indicate how the Government will check up on the effectiveness of what they are doing?

Lord Wallace of Saltaire: My Lords, the money is being allocated among local authorities according to the results of the confirmation dry run, which showed that we are getting up to an 80% level of confirmation, and indeed sometimes up to 85%, from data matching. However, there are a number of local authorities, including Westminster and Kensington and Chelsea, where, because of the transient population, registration is much lower. Places such as those, where people move frequently, and others with a large number of students or private landlords will be granted large amounts of money to target those groups.

Lord Reid of Cardowan (Lab): My Lords, will the Minister update us on the proposals to cross-reference the databank of the DWP with the electoral registration databank for the purposes of informing those who have not registered but are on the DWP databank, and to encourage them to register? What precedent does this cross-referencing of data from a government department set for information supplied by citizens to a government department for the exclusive use of that department and the purposes that it is meant to carry out?

Lord Wallace of Saltaire: That is a very good question on a very difficult and complex area. It raises questions of privacy as well as convenience. The DWP database has been used for data matching, but in one direction and with very careful procedures so that we were not transferring data, just checking their existence. There are a number of other local and national databases that have been used. It has been discovered, for example, that you can raise quite significantly your confidence that people are there if you use local databases, such as benefit boxes and council tax, as well as national databases.

Lord Rix (CB): My Lords, what can the Government do to ensure that people with a learning disability receive voter registration forms in the easy-read format so that they can participate in the 2015 elections?

Lord Wallace of Saltaire: My Lords, one of the five organisations that I was able to announce yesterday that the Government are funding to deal with target groups and vulnerable groups is Mencap. We ask Mencap in particular to have regard to that.

Lord Lexden (Con): Could my noble friend comment on the initiatives being undertaken by the Hansard Society in conjunction with the Cabinet Office—initiatives that could have a marked effect on the number of young people registered to vote?

5 Feb 2014 : Column 197

Lord Wallace of Saltaire: My Lords, the Hansard Society is working with Homeless Link on a project that is very much targeted at young people who are moving very rapidly or who do not have a settled address, who of course are one of the most difficult groups to reach.

Lord Wills (Lab): My Lords, as the Minister is well aware, the Government generally allocate funds to local authorities for the purposes of electoral registration through the local government finance settlement. As he is also aware, these funds are not ring-fenced. Will the Government say whether they know, rather than hope or think, how much of that funding is spent for the purposes of electoral registration?

Lord Wallace of Saltaire: As the noble Lord knows from our previous discussions on this on many occasions, the Government are not in favour of extending ring-fencing. Having met a number of electoral registration officers, I have great confidence that they can look after themselves and ensure that the money is not siphoned off to other sources.

The Lord Bishop of Wakefield: My Lords, noble Lords will know that churches and the ancillary buildings connected with them are often the places where hustings take place, and indeed are used as polling stations. This is a key way of engaging local people in the democratic process. With the recent passing of the transparency of lobbying Act, will the Minister reassure us that churches and such places will continue to be used and will not be affected by the passing of that Act?

Lord Wallace of Saltaire: My Lords, I cannot see any way in which the use of churches as polling stations, and indeed the role of the clergy in encouraging people to do their community and civic duty, will be adversely affected. I very much hope that the church will continue to encourage all those who are part of its community to take a full part in civic, social and political life.

Employment: Young People

Question

3.14 pm

Asked by Baroness Byford

To ask Her Majesty’s Government what assessment they have made of the impact of the Youth Contract in helping young people into employment.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con): My Lords, the Youth Contract builds on the support already available from Jobcentre Plus to help young people get back into work. Our approach is working. The number of young people claiming jobseeker’s allowance has fallen for the 19th consecutive month.

Baroness Byford (Con): My Lords, that is indeed good news. Does my noble friend recognise the contribution that voluntary youth organisations, particularly armed services cadet forces, play in the development of young

5 Feb 2014 : Column 198

people and in preparing them for the work ahead? Can he tell us what the assessment is of long-term youth unemployment in this country?

Lord Freud: My Lords, one of the most serious problems that we inherited was around long-term youth unemployment; that was structural rather than cyclical. The measures that we have been taking are to get the education and training base for youngsters right. As I have told noble Lords in the past, I thought that the Alison Wolf report on dealing with this issue was most remarkable. We are pushing that through at every level.

Baroness Armstrong of Hill Top (Lab): My Lords, can the Minister tell us how many young people in the north-east have benefited from the measures that the Government have put in place to tackle youth unemployment?

Lord Freud: In the north-east, the number of youngsters—those under 24 years old—who have been claiming as unemployed has gone down by 27%; that is by 7,500 to a figure of 20,000. One of the interesting things about the unemployment figures is how broadly based they have been. If you take the four most northern regions of the country—the north-east, the north-west, Yorkshire and Humberside, and Scotland—they have in combination reduced their claimant count by 43,000 youngsters to 118,000. That is, interestingly, rather more than London and the south-east.

Lord Martin of Springburn (CB): The Minister will recognise that there are far more self-employed journeymen and women than there used to be. Are the jobcentres targeting these self-employed people to take on apprentices?

Lord Freud: The apprenticeship is one of the most valuable ways of getting youngsters into the workforce. Clearly, sole traders are a valuable resource for that. One of the most interesting projects is called Working Rite, which pairs up youngsters with sole traders. That is something that we encourage.

Looking at the number of apprenticeships as a whole, in the three years since the election we have had nearly 1 million apprenticeships of people under 25. That is very encouraging; it is 50% higher than the equivalent three years beforehand.

Lord Baker of Dorking (Con): My Lords, does the Minister not agree that the cost of youth unemployment today is, annually, £4.8 billion. If you allow for lost output, it is £10 billion. Should not the target for every school in the country be that when youngsters leave at 16 or 18 they either get a job, a higher apprenticeship, an advanced apprenticeship, go on to college to do A-levels or go to university? That is a target that university technical colleges have, and it is a target that is met.

Lord Freud: My Lords, I could not agree more with my noble friend. There are only four things one can do to help youngsters into the workforce: directly get them a job; training and education; apprenticeships;

5 Feb 2014 : Column 199

or work experience, which is a stepping stone. That is what Alison Wolf told us, and that is what the Government are aiming to do.

Baroness Sherlock (Lab): My Lords, I think the Minister said that the Government inherited high long-term youth unemployment from the Opposition. However, the ONS publication Labour Market Statistics shows that long-term unemployment for 18-24 year-olds is 232,000. The same data set shows that in the period spanning the last election it was only 188,000. Labour has made it very clear that we would guarantee a job for every young person out of work for more than a year and make them take it. What will the Government do?

Lord Freud: My Lords, the figures the noble Baroness quoted are very distorted by the training allowances, which got people off the long-term measure. I will not go into a long song and dance about it, but those figures were the result of a very distorted comparison. I have quoted the real figures—the ones that matter—to this House on a regular basis. When you look at youngsters who are both workless and outside full-time education, that figure rose through the longest boom we have seen in our history because of structural inability to get those youngsters into the workforce. There was neither adequate education nor routes into the workforce. We are turning those figures round—and they are the real figures.

Lord Roberts of Llandudno (LD): May I ask the Minister how we monitor the success of these training schemes and apprenticeships? How many are effective in providing long-term, standard employment when their training or term of apprenticeship comes to an end?

Lord Freud: My Lords, it is vital that we have routes that lead into long-term, sustained employment and into being part of the economic life of the country. It is a bit early to look at the apprenticeship figures yet, because they are long term, but if you look at the work experience figures, nearly half the people on work experience were off benefits 21 weeks after starting a placement. That is more or less the kind of figure we saw with the Future Jobs Fund. The difference is that this work experience cost one-20thof what the Future Jobs Fund cost the previous Government.

Banks: Lending

Question

3.22 pm

Asked by Lord Empey

To ask Her Majesty’s Government what assessment they have made of the success of the steps they have taken to encourage banks to lend to small and medium-sized enterprises.

Lord Popat (Con): My Lords, the Funding for Lending scheme is incentivising banks to increase lending to businesses. In addition, the Enterprise Finance Guarantee scheme has underpinned £1.4 billion of lending since 2010, and the Government are supporting the development of alternatives to bank finance. In the

5 Feb 2014 : Column 200

last quarter of 2013, the banks lent an average of £4 billion a month; in the same period in 2012, the average was £3.1 billion. That trend is positive and encouraging.

Lord Empey (UUP): My Lords, I of course welcome the establishment of the business bank and the additional funds earmarked for it. However, as the Minister knows, the vast bulk of business lending in the UK comes from commercial banks. With a recovery under way at last, does the Minister not fear that the banks could take the easy way out and divert funds needed for SMEs into a heating and unproductive housing market, thus ensuring that the real wealth creators of this country are unable to help our economy grow?

Lord Popat: My Lords, we launched the Funding for Lending scheme to kick-start the housing market and to help our SMEs. Now that the housing market is picking up, the Government accept that the Funding for Lending scheme no longer needs to support lending to households. That is why the scheme’s fire-power has now been refocused to underpin the supply of credit to small businesses, where it is most needed.

Lord Lawson of Blaby (Con): My Lords—

Lord Harrison (Lab): My Lords, given the decline in lending to small businesses—

Lord Lawson of Blaby: My Lords, three months ago the Royal Bank of Scotland Group, which is owned by the Government, publicly admitted that it has been treating its SME customers abominably and undertook to change its ways. Can my noble friend tell the House what practical steps have been taken and what the Government are doing to monitor this situation, for which they have a clear and direct responsibility?

Lord Popat: My Lords, we are encouraging the Royal Bank of Scotland to lend more money to SMEs. In fact, the bank has lent £58 billion to small businesses. On Thursday last week, the Royal Bank, together with four other banks, launched a campaign to say that they were open to lending money to small businesses and willing to consider applications from SMEs. Therefore, the Royal Bank of Scotland is conducting a proactive campaign to make sure that it lends to small businesses.

Lord Harrison: My Lords, given that the Bank of England has tabulated another fall in lending to small businesses in the past couple of months, that the CBI has called for wider ways of funding small businesses and that the WEF has asked for more competition from the banks in lending to small businesses, why does the Minister try to paint so rosy a picture?

Lord Popat: My Lords, the Minister is not painting a rosy picture. Let me take the last point made by the noble Lord, relating to competition. We will soon spin out a TSB from Lloyds Bank; we will spin out Williams & Glyn’s Bank from the Royal Bank of Scotland; we have the British Business Bank in place and the large number of private banks that have come into the market: the Metro Bank, the Shawbrook and the Cambridge & Counties Bank. There are therefore

5 Feb 2014 : Column 201

several banks coming into the market. Another thing that the regulators have done is that they looked at the regulations to make it easier for new companies to apply for banking licences. We have 20 applications being considered at the moment, so given time, we will have a number of banks in real competition.

Lord Low of Dalston (CB): My Lords, if the recovery is going so well, why are businesses not investing on a more significant scale, but rather holding very considerable amounts of uninvested resources on their balance sheets?

Lord Popat: My Lords, you cannot force a company in the free market to make an investment, but you can create the conditions for such things to happen. I am pleased to say that the conditions in this country are now pretty good for businesses to invest money.

Lord Cotter (LD): My Lords, exporting is very important for this country, but can be daunting and difficult for small businesses. Will the Minister ensure, through UKTI and otherwise, that it is made easier for small businesses to actually get funding for exporting, which is an essential need for the country?

Lord Popat: My Lords, when I first came to this House, I set up an ad hoc committee to see what we could do to help SMEs to export more and have access to finance. The report was published in this very House, and we now have a large number of schemes, with UKTI working to help our SMEs to export more and to make funds available for exporting.

Lord Stevenson of Balmacara (Lab): My Lords, the National Audit Office recently reported on borrowing to SMEs. It said:

“the flow of new bank term lending to SMEs fell by 23 per cent between 2009 and 2012 … the ‘funding’ gap (the difference between the funding required by SMEs and the funding available) … may reach £22 billion by 2017. … There is no formal research programme joining BIS, HM Treasury and other departments that have an interest in SMEs. As a result, emerging insights are not as joined-up as they should be”.

Will the Minister tell the House when he last met with Treasury officials and when he intends to meet them to talk about SMEs in the future?

Lord Popat: My Lords, gross bank lending has gone up for the past 12 months, although net lending has fallen in three out of the past 10 months. Overall lending is a lot more than it was in 2012. I am pleased to say that, although net lending has dropped, there are other sources of finance available to SMEs and businesses from which they can borrow money. The recent responses to the Bank of England credit conditions survey reported that the overall availability of credit to the corporate sector increased significantly in the final quarter of 2013. I normally stick to my own department, and I have not had any meetings with the Treasury.

Lord Forsyth of Drumlean (Con): My Lords, will my noble friend explain why the capital requirements for banks that are lending to small businesses require them to maintain a considerable amount of capital for

5 Feb 2014 : Column 202

the loans they provide, whereas, if they buy Greek bonds, they are not required to provide any capital at all? Is it therefore any wonder that there is a distortion towards buying bonds from sovereign bodies rather than lending to small business? Should we not look at the regulation?

Lord Popat: My Lords, the regulations are being reviewed, but I agree with the noble Lord. A large number of medium-sized businesses are now switching from bank borrowing to issuing bonds.

Central African Republic

Question

3.29 pm

Asked by Lord McConnell of Glenscorrodale

To ask Her Majesty’s Government what support they will provide to the European Union mission in the Central African Republic, authorised by the United Nations Security Council on 28 January.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, we remain concerned about the security situation in the Central African Republic. An EU operation would reinforce African Union troops and improve the security and humanitarian situation. The EU operation is still subject to UK parliamentary scrutiny and further EU Council decisions. If agreed, the UK could cover around 15% of the common costs; we are not planning to provide combat troops.

Lord McConnell of Glenscorrodale (Lab): With thousands dead, more than 1 million displaced, many new recruits as child soldiers and many instances of sexual violence, there has clearly been failure by the United Nations and others in sleepwalking into this situation. For now, the support of the UK for the EU mission and the work of the UN and the AU is welcome. Will the Minister use her good offices to ensure that the Minister for Africa and the relevant Minister at DfID organise a briefing for Members of both Houses, given the level of interest that there is in this crisis, both here and outwith the Houses, after more than 100 people attended a meeting in Parliament last Wednesday night?

Baroness Warsi: The noble Lord is absolutely right to raise these issues. He will recall from the Question that I answered on 16 January that the two issues that came out loud and strong were, first, on support from the United Kingdom for the EU—and I am delighted to say that the Foreign Affairs Council has clearly moved on this matter; and, secondly, noble Lords’ request for further information from my ministerial colleague. I fed that back to Mark Simmonds, who has agreed to come and brief parliamentarians. I think that a date is currently being arranged.

Baroness Berridge (Con): My Lords, in the past few days there have been reports of further collusion between ex-Seleka rebels and Chadian soldiers, as Seleka rebels have fled to the north of CAR, raising a flag that indicates that it is now partitioned from the rest of the

5 Feb 2014 : Column 203

country, and have been joined there by Chadian soldiers, who are helping in those efforts. Could my noble friend the Minister please outline whether those issues were raised by the Minister, Mark Simmonds, when he met the Foreign Minister for Chad on 28 January? Will Her Majesty’s Government make representations to the UN and the AU to insist on the removal of Chadian soldiers from any peacekeeping effort in the country?

Baroness Warsi: I am not sure what was raised at that particular meeting, but I shall certainly check the record and write to my noble friend about that. In relation to the efforts of the African Union forces, we are, of course, grateful for the front-line position that they have taken in this matter. We feel that it is for the African Union to decide the most effective make-up of its forces—but ensuring at all times the high standard of behaviour among those deployed on this mission. We have regular discussions with the African Union on this issue and on a whole variety of peace and security issues, but I shall make sure that our Permanent Representative to the AU raises these matters with the AU Commission.

Lord Boateng (Lab): My Lords, I was in the region last week, and what was very clear to me on the ground was that the violence has moved from Bangui and into the rural areas of the Central African Republic. In the past 72 hours some 75 people or more have been killed in Boda, some 100 kilometres outside Bangui. What urgent steps are being taken, not simply to reinforce the AU-EU peacekeeping efforts but to ensure that backing up those efforts is a DfID and EU presence on the ground, addressing the issues of interfaith relationships and sustainable livelihoods, because it is joblessness and hopelessness as well as sectarian hatred that fuels these outrages?

Baroness Warsi: The noble Lord raises a number of issues, and I agree with what he says, but ultimately we have to return to a political process. There was a process agreed at N’Djamena in April last year, I think. There have been political changes at the top, as the noble Lord will be aware, with the President resigning and a new President now heading up the interim council. Ultimately, these incredibly complex matters will be resolved only when we return back to the political process. As for DfID’s contribution, I can inform the House that the contribution has increased, and the department has made a total contribution to date of £15 million.

Lord Chidgey (LD): My Lords, the Foreign Policy Association analysts have stressed that the key challenge is disarming both the Seleka and anti-balaka groups before any possibility of a ceasefire and wider peace agreements can be raised. With the deployment of 500 EU troops sending the right signal, does my noble friend share the EU representatives’ concerns at the limited number of AU troops deployed in the CAR so far? Do the Government agree with the UN’s assessment that at least 10,000 troops, mostly from the AU, will need to be deployed before progress towards a ceasefire and peace agreement can be contemplated?

5 Feb 2014 : Column 204

Baroness Warsi: My noble friend will be aware that matters have progressed through the UN Security Council resolution. The two resolutions passed—in December 2013 and in January this year—have been about strengthening the mandate both for the French Operation Sangaris and also for African Union support through MISCA. I can inform the House that the number of African Union forces deployed has increased since we discussed this matter on 16 January. It is not up to the authorised full operational level of 6,000 but it has gone up over the past few weeks. That is in addition to the French forces and now the potential EU force, depending on completion of the parliamentary scrutiny procedure.

Baroness Kinnock of Holyhead (Lab): My Lords, the UK Government have rightly voted for the deployment of the EU rapid reaction force for the CAR at the ambassadors’ meeting in Brussels; subsequently at the European Council of Foreign Ministers, where the Secretary of State voted in favour; and then again at the UN Security Council. Can the Minister therefore please, following on from my noble friend’s first Question, give us a progress report on precisely what form of engagement, beyond the 15%, the UK proposes to undertake to ensure that we can soon contribute to the efforts now being made by the African and French peacekeepers?

Baroness Warsi: The noble Baroness will be aware that it was a EUFOR force that we helped and supported. It has a very clear mandate. Part of the discussions in setting that mandate were about individual member contributions, and it was felt at that stage that our contribution would be the 15% towards the core course. At this stage it is important that the matter passes through the parliamentary scrutiny process. I understand that it is in the Commons today, and I think that it will be in your Lordships’ House tomorrow. If that were to pass it could be in time for the Foreign Affairs Council on 10 February. We could then have a further Council direction for the formal deployment.

Children and Families Bill

Third Reading

3.37 pm

Baroness Anelay of St Johns (Con): My Lords, there are occasions when it is my duty as government Chief Whip to signify the Queen’s consent. This is just such an occasion. I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Children and Families Bill, has consented to place her interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Clause 11: Welfare of the child: parental involvement

5 Feb 2014 : Column 205

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, I am delighted to be opening the Third Reading of the Children and Families Bill. As the House will appreciate, I have joined the Bill at a late stage but I recognise how much detailed debate and scrutiny there has been in this House over many months. I hope noble Lords will agree that, working together, we have been able to make improvements to a Bill that will have a positive impact for children and young people and their families. There are some further issues where we have been persuaded that legislative changes are appropriate, and others where consequential amendments are required, so the Government tabled amendments on these areas last week. I hope that all of the amendments will be welcome, and that we will make good progress today.

Returning to the amendment, I begin by thanking my noble friend, the noble and learned Baroness, Lady Butler-Sloss, for her contributions and for bringing her experience to the debate on the amendments to Clause 11 and the issue of parental involvement. The clause has been the subject of much debate throughout the passage of the Bill and I am pleased that there has been widespread approval of the intentions behind it. Noble Lords agree that, in most cases, it is best for children to have both parents involved in their lives, but I also understand the concerns of those who have highlighted the need for a clearer understanding of the policy.

We have listened to the concerns raised by noble Lords and I repeat my thanks to the noble and learned Baroness, Lady Butler-Sloss, for her important contributions throughout the consideration of Clause 11. Our aim in tabling this amendment is to retain the principle behind her amendment agreed on Report while ensuring that it will work in practice as noble Lords intend. We have removed the phrase,

“promotes the welfare of the child”,

as it is clear that any involvement that promotes a child’s welfare will serve to further the child’s welfare, which is already captured in the main body of the clause. Retention of this phrase in the amendment would result in repetition of the wording of new subsection (2A) and might, we feel, lead to confusion. The remaining changes to the wording seek to tidy up the drafting while retaining the principle of the original amendment.

Noble Lords have highlighted a need for the clause to be clearly communicated to separating parents. We agree. I want to reassure noble Lords that we are taking steps to address any potential misunderstanding of the clause by parents, in particular through content that is being developed for the Sorting out Separation web app. When Clause 11 becomes law, we will make clear in the information on this web app—and in information about the changes that we disseminate to partner organisations—that the clause does not give parents a right to a particular amount of the child’s time. We will also ensure that the organisations with the HSSF—the Help and Support for Separated Families—kitemark have clear and accurate information about the changes. We recognise the huge expertise and experience of organisations whose work is focused on supporting vulnerable parents. Their input will

5 Feb 2014 : Column 206

help to ensure that the messaging and tone of the information that we develop is right, and that the information is properly targeted.

I hope that noble Lords will agree that this amendment meets the concerns that have been raised previously by the House. I again thank the noble and learned Baroness for bringing this important matter to the House’s attention. I beg to move.

Baroness Butler-Sloss (CB): My Lords, I am delighted to put my name to this amendment and I thank the Minister for what he has said, particularly his extremely helpful explanation. I should like, through him, to thank those behind him from the Bill team and the civil servants who were extremely helpful in our discussions. They were very helpful to me and, through me, to this amendment.

I was concerned to have an amendment in these words and I am happy to accept the revision that the Government have made. I am well aware that any amendment that is not a government amendment has to be rewritten; that seems to be a given part of parliamentary life. I am totally happy with that. One of my reasons was that in the absence of legal aid in private family cases, there was a very real danger that the dominant parent would overpersuade the less dominant parent that there was a right to equal sharing of the child’s time after separation. Unfortunately, the Government began by calling this particular clause “Shared parenting”. I am grateful to them for having realised their mistake so quickly and taking it away, but the press picked it up. Consequently, people out there believe that this clause means shared parenting.

I had very useful discussions with an organisation, Families Need Fathers, and I ask the Minister to see that any information that is sent out to various organisations also goes to that one because it has an utterly sensible approach. It is very keen that the non-resident parent should have a proper connection with the child to further the child’s welfare, but recognises that it is not shared parenting. It is an extremely useful organisation and I commend it.

I want to be sure that when the information, assessment and mediation meetings take place, that is also when an explanation of what is meant by the relationship between the child and the non-resident parent is made extremely clear. Having said that, I am happy to support this amendment.

3.45 pm

Baroness Howarth of Breckland (CB): My Lords, my name was also on the original amendment tabled by the noble and learned Baroness, Lady Butler-Sloss. I regret that the phrase,

“the welfare of the child”,

has not been retained. I am pleased that the Government have taken this as far as they have. Emotions run very high during divorce and separation proceedings and where children are used as chattels in the battle. For all the reasons that the noble and learned Baroness has already outlined, there is still a perception that it means shared parenting. I encourage Ministers to continue the battle—with the media, if you like—to ensure that that message does not go forward.

5 Feb 2014 : Column 207

As a previous chair of the Children and Family Court Advisory and Support Service, I know how strongly some fathers will battle on, even if they really do not want care of the child. I say that as someone who has a strong belief in having two parents and had a wonderful father of my own. I always think it is important to say that because, if you are talking about difficult fathers, you need to make it clear that you are pro-fathers. I hope that the Government will do all they can to ensure that it is the welfare of the child that will count when this amendment moves forward.

Baroness Jones of Whitchurch (Lab): My Lords, first and rather belatedly, I welcome the Minister. I can tell him that he missed a lot of very interesting discussions in his absence, but I am sure that he is well acquainted with where we have reached with the Bill. We look forward to working with him on these issues in the future.

Our names were also added to the amendment in Committee and on Report, so we feel we have a little ownership of it. The noble and learned Baroness, Lady Butler-Sloss, put it very well: there seems to be an established procedure that our wording can never be quite good enough and that it has to be corrected. We accept that the current wording is marginally better in terms of tidying up, so we are grateful for that. As the noble Baroness, Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss, have said, the important thing now is how this is communicated because there was some miscommunication before. We are grateful to hear the plans that the Minister has for publicity because we would stress how important it is to get the message out there by whatever means necessary. Having said that, we are pleased to support the amendment.

Lord Faulks: My Lords, I am grateful to the noble Baronesses, Lady Jones and Lady Howarth, and to the noble and learned Baroness, Lady Butler-Sloss, for their contributions. Nobody claims exclusive possession of this amendment. It has been very much a joint effort and I include the Opposition in that. We take on board what has been observed about the importance of the message getting through. We will undertake to share the information with Families Need Fathers, both for accuracy and tone so that there can be no misunderstandings. The information will also be made clear to parents at the mediation stage in identical terms. I accept that the dissemination of this information is crucially important so that nobody can be under any misapprehensions, as were discussed in earlier debates on the Bill.

Amendment 1 agreed.

Clause 37: Education, health and care plans

Baroness Northover (LD): My Lords, Amendments 2 and 3 will amend Clause 37. In previous debates we have spoken in some detail about the position of social

5 Feb 2014 : Column 208

care within the new education, health and care plans. I thank noble Lords who have raised this important issue and in particular the noble Lords, Lord Rix and Lord Low, and the noble Baroness, Lady Hughes, for taking the time to discuss this with us outside the Chamber.

We welcomed the high-quality debate in Grand Committee and on Report on social care and recognise the important issues that were raised. On Report, we committed to bringing back an amendment to include the Chronically Sick and Disabled Persons Act 1970 in the Bill as a means of, first, providing assurance that assessed social care needs for disabled children will be met under the existing duty in Section 2 of the CSDPA; and, secondly, ensuring that the EHC plan includes all the relevant social care services needed by disabled children.

Following Report, there have been further productive discussions between my noble friend Lord Nash, officials, Peers and representatives of the Special Educational Consortium, to ensure the legislation is amended to meet these important aims.

We are pleased to bring forward amendments to Clause 37 to require that the EHC plan includes all services assessed as being needed for a disabled child or young person under 18, under Section 2 of the CSDPA, regardless of whether it relates to the learning difficulty or disability which gives rise to the SEN. The duty for local authorities to provide services to disabled children where it is decided that they are necessary under the CSDPA will apply. We will ensure that the SEN code of practice provides an explanation of the services under Section 2 of the CSDPA that must be included in the EHC plan, and explains the existing duties to provide those services, to give clarity and reassurance to both parents and practitioners.

Specifically, where the local authority decides that it is necessary to make provision for a disabled child under Section 2 of the 1970 Act following an EHC assessment, this amendment will mean that the local authority must, first, identify which provision is made under Section 2 of the 1970 Act; secondly, specify clearly that provision in the EHC plan; and, thirdly, deliver that provision.

In addition, the Bill continues to require that any other social care provision which is reasonably required by the learning difficulty or disability that gives rise to the SEN must be included in the EHC plan. This covers provision made under Section 17 of the Children Act which is not covered by the CSDPA—for example, residential short breaks.

It will also cover adult social care provision for young people aged 18 to 25, where a care plan is drawn up under provisions in the Care Bill. The adult care plan should form the social care part of the EHC plan for young people over 18, and the Care Bill includes a duty to meet assessed needs in the adult care plan. Again, we will set out clearly in the code of practice the social care services that must be included in the EHC plan.

I urge your Lordships to support these amendments at the conclusion of the debate. I beg to move.

5 Feb 2014 : Column 209

Lord Rix (CB): My Lords, I warmly welcome the government amendments to Clauses 37 and 51 on social care and redress. I thank the Minister and officials most warmly for listening to the arguments from across the House and the sector and for improving the Bill accordingly. The government amendments move us closer to the holy grail of integrated education, health and social care.

Making it clear that the provision of social care is on a statutory footing in their plans will undoubtedly aid children and young people with a learning disability and their families. The change, I hope, will mean that social care is not at risk of being an afterthought or an appendix as is currently the case in many statements.

I further thank the Minister and his officials for listening to us on the issue of a single point of appeal and for the commitment to conduct a review and pilots. As is always the case with these things, clarity is needed in a number of areas on the detail and I understand that the Special Educational Consortium and Every Disabled Child Matters will write to the department on this matter. I confirm with the Minister that the pilots will look at the possibility of hearing both appeals and complaints on education, health and care, not only complaints.

With that said, I thank the Minister again for making important and positive changes to the Bill.

Lord Low of Dalston (CB): The Minister was kind enough to mention me as having taken part in the discussions on the subject to which the amendments relate, and I follow my noble friend Lord Rix in warmly welcoming the amendments to Clause 37 that the Minister has tabled. They go a long way towards dealing with the point that we raised about the language used to describe the social care required. By referring to the Chronically Sick and Disabled Persons Act, they also go a long way towards addressing the question about enforceability.

To my regret, I have to be somewhere else shortly and will not be able to take part in the debate on the other amendments, so I shall take this opportunity of expressing my appreciation not only to Ministers but to their officials for the extensive way in which they have taken part in discussions throughout the lengthy passage of the Bill, and responded fully to many of the points raised. Obviously it is not appropriate at this point to refer too far forward to other subjects of discussion but, as my noble friend Lord Rix mentioned this, I may perhaps be permitted to say that I too very much welcome the package of government amendments on the review of the appeal process. There were obviously considerable difficulties in implementing the single point of appeal, which we were arguing for, right here and now, so the Government have taken the right course in agreeing to set up a review. I look forward to welcoming the outcome of that review in due course—but that is for another day. Today, I simply warmly welcome both the government amendments and—if I may be permitted to do so—the considerable number of additional amendments that the Government have tabled, and express my warm-hearted appreciation both to Ministers and to the officials who have backed them up in the production of the amendments. I also thank them for their flexible response to the debates on the Bill in general.

5 Feb 2014 : Column 210

Baroness Hughes of Stretford (Lab): My Lords, I understand what the Minister has done with these amendments, and I welcome the fact that we finally have recognition that, as the noble Lord, Lord Nash, admits in his letter of 31 January, there is an individually owned duty to provide services to disabled children where they are assessed under Section 2 of the Chronically Sick and Disabled Persons Act. I also recognise that through this amendment—theoretically, anyway—the assessed social care needs for disabled children will be met under the existing duty. The amendments will mean that any social care provision which a child or young person is entitled to receive under that social care legislation must be included in the plan.

I had intended to ask the Minister some questions, and it is good that in her opening remarks she put on record what I wanted her to clarify: that local authorities must—she emphasised the word “must”—decide whether a child is eligible for services under the 1970 Act, and must also decide what services the child needs. If they decide that a child needs those services they must put them in the plan—and, crucially, they must deliver those services. The Minister has already put that on the record.

I would like to make two more points. First, the letter from the noble Lord, Lord Nash, also says that he will set out clearly in the code of practice the social care duties that must be included in the EHC plan, and explain the duties to provide those services where they are applicable. Could the Minister say in her summing up whether there are particular social care services that must be provided—and whether there are some, therefore, that may not be provided? Is there a distinction there?

The second point is that in relation to the code of practice the explanation to the local authorities is crucial. As it stands, the Bill, even after this amendment, is a very complex way of framing the respective duties of health, education and social care to provide the services. I certainly would have preferred, for the sake of clarity for those implementing the Act, as it will then be, for social care to be included in Clause 42 rather than Clause 37; Clause 37 deals with EHC plans whereas Clause 42 deals with the duty to deliver the services. I think it would be helpful to local authorities to see very clearly in one place in the Act that all three elements of this new planning process—health, social care and education—have to deliver. Unless the duty on social care achieved by this rather tortuous mechanism is clearly spelt out to local authorities it may not be fully recognised by social workers. Will the noble Baroness comment on that? I welcome the changes.

4 pm

Baroness Northover: My Lords, I thank the noble Lords, Lord Rix and Lord Low, and the noble Baroness, Lady Hughes. When the noble Lords, Lord Rix and Lord Low, who have enormous expertise, became involved in this area, it was immediately apparent to me and to others that we needed to listen very carefully. I appreciate very much their gratitude that there has been this movement. Moving close to a holy grail is quite something. I thank them on behalf of the officials.

5 Feb 2014 : Column 211

It is right that the officials’ contribution should be recognised, so I am very happy that the officials are hearing that. I thank the noble Lords on their behalf.

As the noble Lords will have noticed, when my noble friend Lord Nash is persuaded he acts, which is I think reflected in the number of changes that we are seeing in today’s business. He will be dealing with the issue of appeals and redress in the next group.

I am glad the noble Baroness, Lady Hughes, picked up the very clear “musts” in the way that I laid out the responsibilities and the need to deliver the provision that has been agreed. The social care legislation to be explained in the code includes CSDPA 1970, the Care Bill and Section 17 of the Children Act. These pieces of legislation have differing duties, which will be explained clearly. If I need to write further to clarify, I will do so.

I note the number of organisations that are following our debates with enormous care. Whenever they feel we have not done enough, they make sure that we know. I hope that they will help to ensure that they, too, speak to those with whom they are in touch to make sure that the changes are fed through. We will be working very hard to make sure that that code of practice is extremely clear and helpful, both to individuals who might benefit from it, and to practitioners. We are very grateful to the organisations to which the noble Lord, Lord Rix, has referred for their work, and look forward to continuing to work with them. We very much appreciate the consensual way in which we have been able to address this.

Amendment 2 agreed.

Amendment 3 agreed.

Clause 51: Appeals

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, I want to speak to the group of amendments beginning with Amendment 4, which are tabled in my name. The amendments follow previous, very constructive discussions in Committee and on Report about the SEND tribunal and redress, with contributions from a number of noble Lords. I thank in particular the noble Lords,

5 Feb 2014 : Column 212

Lord Rix and Lord Low, my noble friend Lord Storey and the noble Baronesses, Lady Hollins, Lady Hughes and Lady Howarth, for their contributions in those debates and subsequent discussions with me and my noble friend Lord Howe.

As noble Lords will have heard me say previously, one of our main aims in introducing the special educational needs clauses in the Bill has been to reduce the adversarial nature of the SEN system. We want children, young people and parents to have a better experience when engaging with the SEN system, particularly when children and young people are being assessed and, if people have complaints, when they are seeking redress.

We have taken action to ensure that people have a better experience of the system. Just recently, the Minister for Children and Families announced a £30 million programme to provide parents and young people with independent supporters to help them through the process of assessment and drawing up EHC plans. The new assessment process which will be brought in by the Bill will be more joined up and participative, with the education, health and social care services being more directly involved and with a more active role for parents, children and young people. Education and health will work together jointly to commission the services that children and young people with SEN will need.

With reference to complaints, we have maintained in the Bill the duty on local authorities to arrange disagreement resolution services so that parents and young people can resolve disagreement with local authorities about authorities’ duties under this part of the Bill, and with schools and further education colleges about their provision for individual children and young people with SEN.

We have introduced consideration of mediation and the opportunity to go to mediation before parents and young people can register appeals with the tribunal. We know that many parents currently find appealing to the tribunal stressful and off-putting, despite the tribunal’s efforts to hold the appeal hearing in an informal venue where the lay person feels comfortable presenting their own case.

Mediation offers parents and young people an excellent opportunity to discuss their concerns about assessments and education, health and care plans in a non-adversarial setting, assisted by a trained mediator. If they are able to reach agreement with the local authority, it means that they or their children will be provided with the support that they want more quickly than if they waited for a tribunal hearing to be arranged. There is no compulsion on the parties to agree, so if parents and young people are still concerned about what special educational provision is being offered, they can appeal to the tribunal.

However, the Bill as currently drafted means that health and care provision is excluded from the disagreement resolution, mediation and appeal processes. Noble Lords have rightly raised their concerns about this. Following the commitment that I gave on Report, we have worked with colleagues at the Department of Health and the Ministry of Justice to develop a package of proposals to address this issue. These amendments provide that package.

5 Feb 2014 : Column 213

The amendments will widen the disagreement resolution and mediation arrangements to cover health and social care and will require the holding of a review of the complaints and redress arrangements for those with education, health and care needs, with the review including pilots to test the tribunal making recommendations about health and social care.

On disagreement resolution and mediation, all local authorities currently have to make disagreement resolution services available. We will widen these so that when an assessment or reassessment is being carried out, or an EHC plan being drawn up or reviewed, parents and young people will be able to ask for disagreement resolution on health and social care complaints as well as on education complaints. As with the current arrangements, engaging disagreement resolution services will be voluntary on both sides—the parent or young person and the local authority or CCG. Similarly we are proposing to widen mediation to cover health and social care. This will mean that after an EHC plan has been drawn up, parents and young people will be able to go to mediation about the health and social care elements even if they did not have a concern about the education element. If they wanted mediation on health or social care, the CCG and local authority, respectively, would have to take part.

On Report we had an extensive discussion about the merits of a review of redress in the system. I am pleased to have tabled Amendment 33 today, which will establish such a review. The Secretary of State and the Lord Chancellor will hold the review to look at how well the redress arrangements under the Bill are working; and more widely at other complaint arrangements relevant to children and young people with education, health and social care difficulties. The review will take account of the Francis and Clwyd reviews of complaints in the health service. We will involve other organisations which have an interest, such as the tribunal, Healthwatch, the Local Government Ombudsman, the Health Service Ombudsman and Parent Carer Forums.

The Secretary of State and the Lord Chancellor will report back to Parliament within three years of the implementation of the SEN provisions making recommendations as to the future of redress and complaint arrangements, including recommendations on the role of the tribunal. We believe that we would have to give sufficient time to build up the evidence on which to make recommendations. However, three years is a maximum and if the review felt it had the evidence in less than that time it could report to Parliament earlier. I estimate that we might have sufficient evidence by the summer of 2016, so I can say that the review would report no less than two years from the implementation of the Bill and no more than three years.

Part of the review will involve pilots testing the tribunal making recommendations on the health and social care aspects of plans where parents and young people have complaints about them and they are already appealing to the tribunal about the special educational element of the plan. This would mean that they could have their complaints about the plan considered as a whole rather than in isolation. The recommendations would not be binding on CCGs and local authorities

5 Feb 2014 : Column 214

as social care providers but we would expect them to consider seriously any recommendations the tribunal made. The pilots would begin in the spring of 2015 as the first appeals about EHC plans begin to be heard, be carried out in at least four local authority areas and would last for two years while it builds up evidence on which to base any recommendations about the future role of the tribunal.

I believe that, taken together, this is a strong package which addresses the need to provide parents and young people with a more joined-up way of dealing with complaints which go across education, health and social care. I beg to move.

Lord Storey (LD): My Lords, my noble friend Lady Northover used the term “consensual”. That is a very appropriate word to use—it is almost the hallmark of the Bill. On every issue we have tried to come to a consensual agreement, understanding the needs of children and families. These amendments are very helpful. I said on Report that if we could not agree a single point of appeal as part of this Bill that would happen in the future without a shadow of doubt.

It seems to me that people who look at this objectively would think, “Wow—amazing. We have a plan for each child that’s joined up for education, health and social care. That’s very progressive legislation”. And then they would scratch their head and say “But if something goes wrong, or you want to make an appeal about something, why are there three separate appeals mechanisms and three different routes?” That is very confusing and intimidating to parents—there should be one point of appeal. That has been the line that many of us have taken all the way through the passage of this Bill.

I am absolutely sure that the Minister and his team have tried to accommodate that view. I have met with various Ministers and civil servants from other departments. I actually think the amendments probably make sense, because the culture of those departments is very different. There would be a danger that if we did not tread carefully, we would make a mess of the appeals process. So yes, we want a single point of appeal in the future. Yes, it makes sense to deal with disagreement in mediation. Yes, it makes sense to have pilot schemes that we can look at. That will be a really important step forward.

I do not intend to speak again today so I will end my comments by thanking the Minister and my noble friend Lady Northover for the incredible commitment and amount of time they have given during the passage of the Bill. They have been prepared to meet at any time, almost at the drop of a hat, any group on any subject. That has been amazing. I also thank the members of the Bill team, who have been absolutely stunning. I do not think I have come across a group of people who have been so prepared to help in a neutral, fair and supportive way—if you can have those three words linked together. I thank all concerned.

4.15 pm

Lord Touhig (Lab): My Lords, in speaking to Amendments 4, 5 and 33, I commend the Minister and his officials for engaging with noble Lords on all sides on the issue of a single point of appeal.

5 Feb 2014 : Column 215

Amendments 4 and 5 move some way towards putting in place the missing piece of the jigsaw: a unified system of redress. Noble Lords, and indeed the Minister, have spoken of the exasperation that many families feel when they are up against a system that too many feel is adversarial. A petition organised by the National Autistic Society secured 15,000 signatures in support of a single point of appeal. I declare an interest as a vice-president of the National Autistic Society. Many families have battled the bureaucratic quagmire to gain access to support that they desperately need.

To date, we have not had a cogent explanation as to why the First-tier Tribunal, which sits in the Health, Education and Social Care Chamber, cannot hear appeals on all three elements of the education, health and care plan. Joining up redress across the three services is undoubtedly a complicated business, and the review of complaints and appeals promised by the Government, together with the pilots testing an expanded role for the tribunal, will provide us with an opportunity to work out how best to achieve our common objective. The consequences of not doing this have been spelt out and the Minister has certainly listened.

Turning to Amendment 33, the review of resolution of disagreements, together with the pilots testing an expanded role for the tribunal, will provide a pivotal opportunity to fully overcome the barriers to creating a unified appeals process. The Government’s policy statement about the review uses different terminology to describe the scope of the review and pilots. The review and pilots must consider the full range of options, including both appeals and complaints. This is vital for ensuring that parents trust the new system and that in the long run it will be truly responsive to the needs of children, young people and their families. The review and the pilots must include the possibility of the tribunal hearing both complaints and appeals, which should be fully explored.

It is welcome that the amendment places a duty on the Secretary of State and Lord Chancellor to lay the resulting report before Parliament. This is an important way of ensuring scrutiny and further informed discussion around these key areas. However, the amendment to Clause 74 does not outline any duty to consider the findings or to reflect the findings in regulations. This leaves the outstanding question as to what duty there will be on the Secretary of State and Lord Chancellor to respond to any recommendation to undertake definitive action as a consequence. In his opening remarks, the Minister went some way to try to explain how that will happen. I will read Hansard carefully and I hope that we will all end up in the same place at the end of the day.

I commend the Government on the substantial progress that has been made in the Bill. However, there is an outstanding concern about the transition from education to adulthood, particularly for young people and young adults with autism. Transition is a key focus of the Bill. At present the draft code of practice makes no reference to the Autism Act 2009. The draft code should signpost professionals towards this Act and the statutory guidance so that they can understand the needs of and their duties towards children and young people with autism. Will the

5 Feb 2014 : Column 216

Government consider signposting that within the code of practice and ensure that these reforms are adequately reflected in the transition section of the renewed autism strategy, which the Government are now about to undertake?

On Second Reading, I said that the House had the potential to turn the Bill into a landmark piece of legislation. Noble Lords on all sides have worked hard to ensure that the Bill achieves its stated intention: the improvement of the system of special educational needs for children, young people and their parents. To be fair, the Government have listened and worked constructively with those who sought to make changes. The Bill is intended to create a person-centred system which deploys a joined-up approach to delivering education, health and care needs for children with special educational needs. For that, we are all most grateful.

Baroness Howarth of Breckland: My Lords, I am not very good at accolades, but I just add to what has been said about the Minister’s capacity to listen and respond. It has indeed been remarkable and extremely helpful, so I hope that he will forgive me for asking a few more questions—it is in my nature.

I turn to the question of mediation. I had a number of exchanges with the noble Lord, Lord McNally, about the definition of mediation. I hope that the Minister can say for the record that mediation here has the widest definition. We know that some mediators operate a particular structure of mediation which can be very narrow and unhelpful to some of the programmes that are being developed. There are some innovative programmes of intervention on the mediation spectrum, and I hope that those are what we will have under the helpful government amendments.

On a rather unhappy note, all those provisions will be costly at a time when local government is facing further cuts. I know that the Local Government Association—I declare an interest as vice-president—is concerned about the implications. With the best will in the world, those who wish to provide services are sometimes inhibited from doing what they would like by the sheer cost. I noticed that the Minister mentioned a sum in his introduction. Perhaps he could clarify that—it went rather quickly across my thinking. We need to know whether some of the money will be clearly ring-fenced for local authorities to use for those very specific pieces of work.

On the review of tribunals—again, I think this is utterly remarkable—if the Government are able to achieve that joined-up piece of work, then we are well on the way. I am not sure that I would call it the holy grail of joined-up services, but it is what we have all been working towards for a very long time, and we are much further along the track than we have ever been.

I hear what the Minister said about the end date, but can he say when the start date is likely to be? The start date is really important in relation to the amount of time that will be available before the end of the two or three years, whichever is to be proposed.

Again, I add my gratitude to that of others for what we have achieved in the Bill. I hope that the Minister will take as much interest in its implementation as in its legislation.

5 Feb 2014 : Column 217

Baroness Hughes of Stretford: My Lords, it is always understandable, in our relief at seeing positive improvements to the Bill, of which this is one of the most important—we talked about social care before—that noble Lords welcome them, and so do I. However, I am mindful of the persistence and doggedness that it took to get to this point not only here but in the other place. I do not want to take anything away from the change, which is very positive, but rewriting the history of the Bill as being one of consensus is probably a step too far.

I welcome the amendments that the Government have brought forward today and I understand the Minister’s desire to see whether mediation can be an effective alternative to a formal appeals process. I make no criticism of that, as it is entirely understandable, and the amendments that apply to mediation will make it available across the spectrum of health, education and social care.

I have three questions for the Minister: one on mediation and a couple on the review and pilots. I read carefully the amendments on mediation and particularly noted the requirement that the mediator must be independent of the agency providing the services with which the parent or young person disagrees. That point of independence is absolutely right and understandable, but can the Minister say how this will work in practice? One of the things that concerns me is that, if a parent or young person wants to contest, say, both health and social care elements of the plan, it is very important that they should have one mediator who is independent of both the NHS and the local authority. As the noble Lord, Lord Storey, has just said, our debates around this issue have laboured the need for a single avenue of redress for families. That applies just as much to the mediation process as it would to the formal appeal process, as we were arguing.

I ask that question because there are of course separate amendments for mediation in health and in social care. I want to ensure that, when the time comes, which may be when regulations are considered, there will be the opportunity to consider this level of detail and to make sure that families are not relating to two or three separate mediators, plus the First-tier Tribunal, because in a sense that would not achieve the spirit that we sought in the debate on the issue.

My other points concern the review and the pilots. I welcome Amendment 33, which I think takes up the amendment that we tabled on Report about the need for this to be looked at in some detail. It may be three years’ time before we have the results. I hope that there are enough of us still around to see the outcomes of those pilots and the review to make sure that we can use the results productively. In that regard, can the Minister say whether during that time he envisages that there will be some kind of oversight of the pilots and the review process? Could there be some interim findings or representation from interested parliamentarians on some kind of review board or body, with sector representatives? He mentioned parents and young people as well. For us to approve this now and then wait three years is a long time to see what, if anything, is happening. Some oversight of that process would be very welcome.

5 Feb 2014 : Column 218

Lord Nash: My Lords, I thank my noble friend Lord Storey for his kind words. On the point made by the noble Lord, Lord Touhig, about the scope of the review, I assure him that we will not rule out any conclusions from it. We are currently revising the code and will engage with all interested parties, including the National Autistic Society, about their concerns with its drafting.

Concerning the points made by the noble Baroness, Lady Howarth, we will have a wide definition of mediation. In my opening remarks, I mentioned that there would be £30 million for independent supporters. That money will go through voluntary and other organisations, rather than to local authorities, but in addition we are giving local authorities £70 million to support implementation of the reforms.

On the start date for the review, the pilots will begin in the spring of 2015 when the first EHC plan appeals will be heard. We expect the review to begin at the same time and, if possible, slightly earlier.

As far as the points made by the noble Baroness, Lady Hughes, are concerned, when I saw the period of three years I probably had the same feelings that she has. They say that there is only one thing more dangerous than a young person in a hurry, and that is an old person in a hurry. Nevertheless, we will try to get the result as soon as we can, but it would not be sensible to try to have it earlier than in two years’ time.

I am very happy to discuss the make-up of the review and who is on it. It is important that that is seen to be as objective as possible. I am grateful for the noble Baroness’s remarks about us perhaps reaching an eventual consensus on this matter.

Again, I thank all noble Lords who have participated in this aspect of the Bill, and I hope that they will be able to continue working with the departments and offer their expertise as we shape the review.

Amendment 4 agreed.

5 Feb 2014 : Column 219

(3) If the parent or young person wishes to pursue mediation under section (Mediation: health care issues) or (Mediation: educational and social care issues etc), he or she must inform the local authority of—

(a) that fact, and

(b) the issues in respect of which he or she wishes to pursue mediation (“the mediation issues”).

(4) If the mediation issues are, or include, the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan, the parent or young person must also inform the local authority of the health care provision which he or she wishes to be specified in the plan.”

5 Feb 2014 : Column 220

(1) This section applies where—

(a) the parent or young person informs the local authority under section (Right to mediation) that he or she wishes to pursue mediation, and

(b) the mediation issues do not include health care provision specified in the plan or the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan.

(2) The local authority must—

(a) arrange for mediation between it and the parent or young person,

(b) ensure that the mediation is conducted by an independent person, and

(c) participate in the mediation.

(3) For the purposes of this section, a person is not independent if he or she is employed by a local authority in England.”

Amendments 5 to 8 agreed.

Clause 52: Mediation

5 Feb 2014 : Column 221

(3) For the purposes of subsection (2), a person is not independent if he or she is employed by any of the following—

(a) a local authority in England;

(b) a clinical commissioning group;

(c) the National Health Service Commissioning Board.

(4) In this section “commissioning body” means a body that is under a duty to arrange health care provision of any kind.”

Amendments 9 to 15 agreed.

Clause 53: Resolution of disagreements

Amendments 16 to 21 agreed.

4.30 pm

Clause 66: Application of Part to detained persons

Baroness Northover: My Lords, this group of amendments builds upon those that we brought forward on Report and, we hope, address some of the important points raised by noble Lords during that debate. We are grateful to those noble Lords who have continued to raise the important issue of support for young offenders with EHC plans in custody. I particularly thank the noble Lord, Lord Ramsbotham, for his expert and, as ever, very determined contributions

5 Feb 2014 : Column 222

throughout and for his continued determination to ensure this small but highly vulnerable group of children and young people get the support that they need.

I am pleased that noble Lords accepted the Government’s amendments on Report. That means that today’s debate is, I hope, starting from a strong position. The Bill already ensures that: young offenders, their parents and professionals working with them can request an assessment for an EHC plan and those assessments can now start in custody; EHC plans will provide up-to-date, current information on entry to custody, owing to the requirement for local authorities to maintain the EHC plans of those under 18 who are not in education, employment or training for any reason; both home local authorities and relevant NHS health service commissioners are under a duty to use their best endeavours to arrange the education and health provision set out in an EHC plan for children and young people in custody; EHC plans must be kept by the home local authority while a young offender is detained and must be reviewed and maintained again immediately on release; and both youth offending teams and relevant custodial institutions are required to co-operate with the local authority.

This is a significant set of improvements over the current system. However, now we want to go even further to address the remaining concerns expressed by noble Lords during our previous debate on this subject—namely, that “best endeavours” seemed, certainly in the mind of the noble Lord, Lord Ramsbotham, not to create a strong enough obligation on local authorities and health commissioners, and that youth custodial institutions should be required to have regard to the code of practice.

Following productive discussions between our officials, the Special Educational Consortium and the Standing Committee for Youth Justice, we are delighted to be able to say that through Amendments 28 and 29 we are strengthening the “best endeavours” duty so that it now says that local authorities and relevant health commissioners must arrange appropriate special educational and appropriate health provision.

Not only that, but Amendments 30 and 31 amend the definition of “appropriate provision” so that it is clear that local authorities and health service commissioners must first seek to arrange the provision that is in an EHC plan. Where that is not practicable, they will arrange provision that corresponds as closely as possible to the EHC plan. Where what is in the EHC plan is no longer appropriate, the local authority or NHS health commissioner must arrange an alternative that is appropriate.

Amendments 22 and 32 also require both relevant youth accommodation and youth offending teams to have regard to the code of practice. This means that we can set out in statutory guidance how we expect them to fulfil their duties to co-operate with the local authority in ensuring that children and young people with EHC plans receive the support they need while in custody.

These changes will be further strengthened in future by commitments in the Ministry of Justice’s response to the Transforming Youth Custody consultation published in January. I know that my noble friend Lady Walmsley—I

5 Feb 2014 : Column 223

see that she is not in her place, but I hope she will hear this—will be pleased to hear that, in response to an e-mail from her, this document makes it clear that the arrangements for the new providers of education in young offender institutions, due to be in place by November this year, will require them to co-operate with local authorities in regard to young offenders with EHC plans. They will also retain the existing responsibilities that the current providers have for identifying and supporting young offenders with SEN. The document also makes it clear that identification and support for those with SEN will be part of the new secure colleges that the Government will set up through forthcoming legislation.

Finally, Amendment 34 will remove Clause 76, previously Clause 70. Due to an oversight, the amendment to delete this clause was inadvertently not moved following the debate on Report. I am sure that that was entirely my fault.

Taken together, these amendments will strengthen the changes that noble Lords agreed on Report and will ensure that children and young people with EHC plans in custody will receive the support that they need. I hope that noble Lords will be happy to support them.

Lord Ramsbotham (CB): My Lords, I am extremely grateful to the Minister for what she has just said, and also for the many discussions and debates that we have had with both Ministers and officials during the Bill’s passage. I am extremely grateful for what has been done. Not only is it a great advance on what was there before but it has the benefit of building on the experience of many years ago regarding what could and should be possible in young offender institutions for people with problems that have otherwise gone unaddressed. I am particularly grateful for the movement that has been made since Report and for the strengthening of the requirement on local authorities to make certain that the change has happened.

I am also extremely grateful for two other things. The first was the Minister’s assurance that those of us who are interested in this subject, including people who are far more expert in it than I am, will be involved in the preparation of a code of practice which will be such an extremely important document in the future. The second was her assurance that the Ministry of Justice will be involved in those discussions as well. As I have explained before, there have been many good initiatives around the country but the Ministry of Justice’s response to them has not been all that was desired and they have been dropped.

Finally, I am grateful for the platform that has been provided for youth offending teams. A disturbing fact is that few commissioning groups in the country appear to realise that they have a responsibility for things such as mental health treatment of people who are undergoing community sentences. The fact that that is on the statute book with a clear “must” will provide just the stimulus that is needed to pull people together and make things better. I really am grateful for all the work that Ministers and officials have done on this part of the Bill.

Baroness Warnock (CB): Having put my name to the original amendment to remove the then Clause 70, perhaps I may also add my gratitude. This is a real step

5 Feb 2014 : Column 224

forward in the education of young people in custody—not just people with special educational needs, which most of them have in any case. In general, it is a landmark move forward, so I express my appreciation to the Government for that.

Baroness Hughes of Stretford: My Lords, if you consider the amendments on young offenders that will have been added to the Bill in total when it is enacted and compare that to the position when we started—the complete exclusion of young offenders from any of the provisions on special educations needs—you can appreciate the enormous journey that has been made. I welcome that the Government have, in the end, listened to the arguments that were made by Members across the House. This issue has concerned many noble Lords on all Benches but I want to acknowledge in particular the expertise and leadership that the noble Lord, Lord Ramsbotham, brought to the issue, corralling us all together and making sure that we ultimately got the changes that we see today—which I very much welcome.

Baroness Northover: Noble Lords will know what a huge relief it is to any Minister when the noble Lord, Lord Ramsbotham, expresses his pleasure at something we have done. I know how much he likes the word “must”, and I am extremely pleased to have been able to deliver this word to him. I thank the noble Baronesses, Lady Warnock and Lady Hughes. We are well and truly corralled for very good reasons, and I am very pleased that the noble Lord is content with where we have got to and with the current and future involvement of the Ministry of Justice. I hope that noble Lords will support these amendments. I beg to move.

Amendment 22 agreed.

Clause 69: EHC plans for certain detained persons: appeals and mediation

5 Feb 2014 : Column 225

27: Clause 69, page 53, line 1, leave out subsection (8) and insert—

“(8) Regulations under section (Mediation: supplementary) may make provision for the purposes of subsections (7) and (7A) of this section, and accordingly section (Mediation: supplementary) has effect for those purposes with the following modifications—

(a) the references in subsection (1) to commissioning bodies are to be ignored;

(b) the reference in subsection (1)(e) to a child’s parent is to be read as a reference to the parent of a detained person who is a child;

(c) the reference in subsection (1)(f) to the child’s parent or young person is to be read as a reference to the appropriate person;

(d) in subsection (3), paragraphs (b) and (c) are to be ignored;

(e) subsection (5) is to be ignored.”

Amendments 23 to 27 agreed.

Clause 70: Duty to keep EHC plans for detained persons

Amendments 28 to 31 agreed.

Clause 73: Code of practice

Amendment 32 agreed.

5 Feb 2014 : Column 226

(1) The Secretary of State and the Lord Chancellor must carry out a review of how effectively disagreements about the exercise of functions under this Part are being resolved.

(2) The Secretary of State and the Lord Chancellor must prepare a report on the outcome of the review.

(3) The Secretary of State and the Lord Chancellor must lay the report before Parliament before the end of the period of three years beginning with the earliest date on which any provision of this Part comes into force.”

Amendment 33 agreed.

Clause 76: Part does not apply to detained children and young people

Amendment 34 agreed.

5 Feb 2014 : Column 227

(c) references to Chapter 1 of Part 1 of the Act of 2006 are to be read as references to this section;

(d) section 11(5) is to be ignored;

(e) paragraph 10 of Schedule 2 is to be ignored.

(7) “Tobacco” has the same meaning in this section as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).”

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I shall speak also to Amendments 36 to 41 and 45.

I am very pleased to have tabled this package of government amendments aimed at protecting young people from tobacco and nicotine addiction, which seek to do four things. They would introduce a regulation-making power to prohibit the sale of nicotine products to persons under the age of 18; would create a new offence of the proxy purchasing of tobacco; would make a technical change to the standardised packaging amendments that were passed by your Lordships on Report; and would amend existing smoke-free legislation in the Health Act 2006 to deliver the regulation-making powers on smoking in cars carrying children, as was your Lordships’ wish on Report, but with a more workable legislative framework. The amendments come at a late stage in the passage of the Bill, for which I apologise.

I will deal first with the provisions on the age of sale of nicotine products. There has been widespread support for the introduction of an age-of-sale restriction from the public health community and from the electronic cigarette industry. Responsible manufacturers of e-cigarettes are clear that their products are intended for people over the age of 18. I wrote to all noble Lords on 27 January to explain the key elements of this proposed new clause. I will summarise the main provisions. They provide the Secretary of State with the power to make regulations to prohibit the sale of nicotine products to persons under the age of 18. At present there is no general legal restriction on people under the age of 18 buying nicotine products, including electronic cigarettes, which are also known as e-cigarettes. The regulations to be made under this power would be subject to the affirmative resolution procedure to ensure that Parliament has the opportunity to scrutinise how the regulations would operate in practice before they were made.

This measure does not capture tobacco products, which are already subject to law restricting their sale to persons aged 18 and over. The penalty for committing the offence of selling a nicotine product to a person under 18 years of age would be a fine not exceeding level 4 on the standard scale, which is currently £2,500. We also have very little evidence on, for example, the impact on children’s developing lungs of their use of products such as e-cigarettes. The public health community is concerned that nicotine products could act as a gateway into smoking tobacco, as well as undermining the Government’s efforts to reshape social norms around tobacco use. We need to remember that young people can rapidly develop nicotine dependence and that nicotine products deliver nicotine and cause addiction.

Attempts were made to include an age-of-sale provision applicable throughout the EU in the revised European tobacco products directive, but this was not achieved. We therefore want to do this domestically through this

5 Feb 2014 : Column 228

Bill. I hope noble Lords will understand why we are using the opportunity the Bill provides to take these additional steps. It is important that we act now to manage the risk of a gateway effect into tobacco use and the development of lifelong addictions to smoking.

4.45 pm

I turn now to the proxy purchasing of tobacco. Your Lordships will be aware that we recently debated this issue in the context of the Anti-social Behaviour, Crime and Policing Bill. It was clear during those debates that there was widespread support among noble Lords for creating a proxy purchase offence for tobacco as a way of further reducing the supply of tobacco to children and young people. We must take action to address both the supply of, and the demand for, tobacco products among young people if we are to reduce the uptake of smoking. My noble friend Lord Taylor made it clear that the Government retained an open mind on this issue and that some of the arguments advanced in favour of a new offence had merit.

Since that debate, the Government have carefully reflected on the powerful arguments made by your Lordships. The Government have also taken into account the views of retailers and their representative bodies, which have long argued for the creation of a proxy-purchasing offence for tobacco. They feel it is unfair that current legislation sets out an offence for retailers that sell cigarettes to children, but that there is no offence of proxy purchasing. Let me be clear that I welcome the role that retailers play in ensuring stringent application of existing age-of-sale legislation for tobacco. I also pay tribute to the work done by retailer bodies, such as the Association of Convenience Stores, in supporting their members to effectively apply age-of-sale provisions for tobacco. The offence of proxy purchasing will be enforced by local authority trading standards officers, who will have the flexibility to issue a fixed penalty notice if they believe that an offence has been committed, rather than taking prosecution action.

It is important to note that this proposed new clause does not require local authorities to undertake regular programmes of enforcement; it therefore does not place any significant new regulatory burdens on local authorities. Local authorities know their communities better than anyone, and will know how best to address their public health priorities. This amendment allows local authorities to take targeted enforcement on proxy purchasing where they consider it is needed. It is an additional means to tackle smoking in their communities.

The arguments around effective enforcement have been well rehearsed previously, and I do not plan to revisit those issues in depth today. However, it is fair to say that experience in Scotland tells us that we are unlikely to see a vast number of convictions. Success will not be measured by the number of prosecutions alone, because, importantly, the new offence should generate a worthwhile deterrent effect. Alongside this new offence, the Government will also work proactively with local authorities, retailers and parents to highlight the issue of proxy purchasing of tobacco. We must work with communities to make it clear that it is wrong in principle for adults to buy cigarettes for young people.

5 Feb 2014 : Column 229

I turn now to our technical amendments on standardised packaging. When reviewing the detail of the proposed new clause, we identified a small gap that these amendments address. They would allow Ministers to take enforcement action directly in relation to standardised packaging, even if none is taken by a local authority. As a precaution, and in line with other tobacco control legislation such as the Tobacco Advertising and Promotion Act, we think it is sensible for Ministers to have the power to do this.

Finally, I turn to smoking in private vehicles carrying children. During Report, your Lordships voted to accept an amendment to enable the Government to make regulations,

“making it an offence for any person who drives a private vehicle to fail to prevent smoking in the vehicle when a child or children are present”.

I have had a helpful discussion with the noble Lord, Lord Hunt of Kings Heath, about how it would be best to set out your Lordships’ intention in a legally workable way in this Bill. While the amendment is clear in its intention, it does not address key considerations such as enforcement, offences, penalties or territorial applicability. We have a responsibility, to be sure, that any amendment that makes its way on to the statute book could work in practice. I have therefore tabled, with the support of the noble Lord, Lord Hunt, the noble Baroness, Lady Finlay, and my noble friend Lord Ribeiro an alternative amendment that could better deliver in practice the principle that your Lordships voted for at Report.

The technical effect of this new amendment would be to amend existing smoke-free legislation in the Health Act 2006 to make it clear that the Secretary of State and Welsh Ministers have the power to make regulations to provide for a private vehicle to be smoke-free when a person under the age of 18 is present. During the passage of the 2006 Act, Ministers said that they did not want to use the powers in that legislation to make private vehicles smoke-free. The amendment, if enacted by Parliament, would make it clear that regulations could be made if the Government decided to prohibit smoking in private vehicles carrying children.

As I said at Report, the Government are clear that children should not be exposed to the harm of second-hand smoke. There are obviously many different ways in which to try to achieve that aim, and we are willing to listen to what Parliament has to say on the important principle of whether the Government should have the power to legislate to prevent smoking in cars when children are present. There will be opportunities in future for both Houses to discuss questions of implementation, if this is relevant once Members of both Houses have had their say on this overarching principle. I hope that noble Lords find the amendment tabled on smoking in cars helpful. I appreciate the opportunity to be clear about the Government’s position on this issue.

I hope that the House will welcome the action that we propose on a range of tobacco control measures. Given the growth in the market of electronic cigarettes, it is important that we act now to reduce the availability of addictive nicotine products to young people. On

5 Feb 2014 : Column 230

proxy purchasing of tobacco, the amendment will enable local authorities to take action to prevent adults buying tobacco for young people—a deplorable act. A proxy purchase offence will sit as another component within a wide set of available tobacco control measures to reduce the uptake of smoking by children and young people. On smoking in cars, the government amendment builds on the original amendment to create a new offence within a more workable legal framework.

Finally, I have already registered my gratitude to the noble Lord, Lord Hunt, my noble friend Lord Ribeiro, and the noble Baroness, Lady Finlay, for supporting the amendment on smoking in cars. I pay tribute, too, to the noble Lord, Lord Faulkner, for adding his name to the other amendments in this package. I hope that noble Lords will support them, and I beg to move.

Lord Faulkner of Worcester (Lab): First, I thank the Minister for his kind words about my signing all the amendments in this group with the exception of Amendment 41, which I did not sign not because I disagreed with it—I think that it is absolutely excellent—but because other noble Lords put their names to it ahead of me and the list was full when I asked whether I could add mine.

I start with a general point, which I cannot resist making. I first went to see the Public Bill Office after Second Reading last July and asked its advice on whether there was any possibility of including a clause on standard packaging for tobacco products as a child protection measure in the Bill. I never dreamt that by Third Reading the Bill would contain such a range of powerful tobacco control measures, especially in view of the fact that there was no reference to a single one when the Bill came to us from another place.

I particularly thank the noble Baronesses, Lady Finlay of Llandaff and Lady Tyler of Enfield, and the noble Lord, Lord McColl, for agreeing to sign our original cross-party amendments on standard packaging. I commend the noble Lord, Lord Ribeiro, for persisting with his campaign to ban smoking in cars when children are present, and my right honourable friend Andy Burnham and my noble friend Lord Hunt of Kings Heath for their support on all these issues. I particularly thank the Health Minister, the noble Earl, Lord Howe, whose courtesy, willingness to listen and determination to get the policy right nobody in this House could possibly fault. I also mention in dispatches the noble Lord, Lord Taylor of Holbeach. As the Minister said, he indicated on the second day of the Report stage of the Anti-social Behaviour, Crime and Policing Bill, as recently as 14 January, that he had an open mind on proxy purchasing, although he was not as forthcoming as the Minister has been with his amendment today.

When the Government come to implement the policy on proxy purchasing, I wonder if they would like to look at one element of the experience in Scotland. When Scotland introduced a law on proxy purchasing in October 2011, it brought in a retailer registration scheme at the same time. This is a low-cost licensing scheme that operates in conjunction with fixed penalty notices and gives the courts the ability to impose banning orders. It requires all tobacco retailers to be registered on one national register in order to sell

5 Feb 2014 : Column 231

tobacco. The costs to the industry of the scheme are minimal and are limited really to the one-off labour cost needed to fill out the form. Costs to the Government include the initial set-up costs of advertising and marketing to give retailers information about the need to comply with the scheme and the process to be undertaken, and the cost of a database to hold national-level information on retailers. Such a scheme would give local enforcement agencies a very valuable weapon in tackling illicit trade and in enforcing other tobacco control regulations—for example, the ban on sales to minors. It would also help to protect the great majority of honest retailers from unfair competition from the unscrupulous minority who are prepared to deal in illicit products.

Finally, I go back to the speech from the noble Lord, Lord Taylor of Holbeach, on the anti-social behaviour Bill and commend one sentence in it that I have not heard from any Minister before. He said:

“The Government are determined … to stamp out smoking as a habit, particularly among young people, so they are being proactive”.—[Official Report, 14/1/14; col. 141.]

Indeed they are and the amendments before us today are proof of that. They are an indication of just how far we have come and noble Lords in all parts of the House deserve great credit for the contribution that they have made to public health by adding these vital tobacco control amendments to this Bill.

Baroness Tyler of Enfield (LD): My Lords, I, too, would like to say a few words about Amendment 41. I also was one of those disappointed to get there too late to add my name to it. I thank the Minister for listening and for everything that he has done to get us to the position we are now in. The amendment he has brought forward with other noble Lords is laudable, and it is right that we are working hard to make sure that it is legally workable. I pay tribute to him for that.

I have a couple of other comments. I, too, am so pleased that this is part of a comprehensive package of tobacco control measures—something to try to prevent young people picking up that nicotine addiction that too often leads to dependency early in life. This is a landmark set of measures, both for child protection and for the public health of young people. I thank everyone who has been involved in that. It also demonstrates what we can do in your Lordships’ House when we work in a non-partisan way. The discussions and the debates that we have had across the House and across Benches have brought home to me how good it can be that we can work in this way.

Finally, on enforcement and workability—I made this point on Report—I am very pleased that there will be opportunities for both Houses to discuss methods of implementation, provided we get to that stage. There are many people who have a lot of expertise to bring to bear. Only this morning, I was looking at a Canadian Cancer Society review from this year which listed the countries which already have bans of this type in place. It includes Canadian provinces, Australian states, six of the US states, Mauritius, South America, Bahrain and Puerto Rico. I say that to emphasise that it can be done. It is being done in other parts of the world. Of course, they all have their own ways of doing things. I suspect that none of them will be

5 Feb 2014 : Column 232

directly comparable, but it clearly can be done. The fact that there is so much experience elsewhere in the world is something that we should take account of when we have those follow-up discussions on implementation.

5 pm

Baroness Finlay of Llandaff (CB): My Lords, it has been an enormous privilege to be part of the movement across all Benches in this House to do something about controlling the use of tobacco, particularly in relation to child protection. Tobacco control has for many years been something that medicine, the discipline from which I come, has been arguing and pushing for. It is with a great sense of relief that I see these amendments before us today.

I thank everyone who has contributed to these and previous debates, but I especially thank the noble Earl for the way in which he has remained in contact, listened to discussions, been very open to suggestions and has really taken on board a rapidly changing landscape in the atmosphere of this House, which has supported these moves. I would have added my name to the other amendments had I not been so busy checking the one to which I did add my name before the time ran out.

The issue of e-cigarettes is really important; they have crept up on us rapidly. They give a bigger nicotine hit, so users say, than cigarettes and they have flavourings that are likely to attract young people. So, moves towards controlling them as well are really important. I know that the Chief Medical Officer has looked at this carefully and is concerned. I share those concerns, as do many others in my discipline of medicine. I hope that in the years ahead we will see a drop in cigarette and tobacco-related diseases presenting in our A&E departments, GP surgeries and hospitals.

Lord Ribeiro (Con): My Lords, I add my appreciation to my noble friend the Minister for getting us to the point where we are today. Little did I wonder when I introduced my Private Member’s Bill way back in July 2012 that we would actually be at this position. As the noble Baronesses, Lady Finlay and Lady Tyler, rightly said, this has been a cross-party initiative right across the House. I am grateful for the conversations that I have had with my noble friend and for the way in which the Government have shifted their position both publicly and privately. That is very rewarding.

Thanks to the Tube strike today, I came in by taxi. The best way to find out what the average member of the British public thinks about anything is to ask your taxi driver. I noted that he had a no-smoking sign in his cab. I asked, “What do you think about this Bill on smoking in cars that we might be able to resolve today?”. He held up a packet of cigarettes, to my surprise, and said, “I’m a smoker. I don’t smoke in the cab, I go outside to smoke. Why would anybody want to smoke in a car with children present? Why would they?”. That was his reaction. When we know that 85% of smokers think that it is bonkers to smoke in a car when children are present, we realise that we have finally made the point that this is more about child protection—protecting young children with

5 Feb 2014 : Column 233

young lungs, who are likely to end up with long-term respiratory problems—than it is about removing personal liberties.

I hope that the Government will continue to re-energise this educational programme because it is that 15% of the public who do not recognise the importance of not smoking in cars that we need to get at. I have every confidence that the Government will do so. Legislation can always be used as a blunt instrument but it is interesting that, since the seat-belt legislation was brought in, the current compliance rate is more than 90%. Some 95% of people who clunk-click would never even think of driving off without putting their seat belts on. In years to come, I hope that people will wonder why they ever smoked in cars with children present.

Baroness Howarth of Breckland: My Lords, somehow I never manage to get my name on amendments, but it never prevents me from speaking. I welcome the package of measures being proposed. Ever since I introduced the amendment that stopped smoking in the Peers’ Guest Room, I have been one of the team quietly working towards the place that we have now reached. The Minister must forgive me if I ask him to say where we are and when we will reach the point at which all these measures will be implemented.

I muttered to the noble Baroness, Lady Finlay, “Is it going to happen, or not? Or is it simply a power that a Minister will have?” Can the Minister give us a clearer picture as to when it will happen? I am still waiting for the shutters to go down in 2015 on tobacco in small shops. Every year it means that more children are not protected by all the methods that he wishes to introduce.

I have watched the noble Earl’s own journey. I believe he has always wanted to be here. He has taken us steadily, and somewhat cleverly, through to a point where the industry which was vociferous in its opposition has no representatives present here today. That is a very interesting position to have reached. I am immensely grateful for that but, with my usual impatience, I want to know when the implementation date will be.

Lord Stoddart of Swindon (Ind Lab): My Lords, I am not going to break the consensus but I must declare an interest—as I did previously—in that I am an associate member of the Lords and Commons Cigar and Pipe Smokers’ Club.

This House has made its decisions on these matters and it is not for me, nor anyone else, to say that it was wrong, particularly since one of the amendments was voted on and carried. The House of Commons has yet to consider these amendments and I have no doubt that it will do so in its wisdom and in the knowledge that one of its duties is to protect all minorities, as well as majorities.

The noble Lord, Lord Faulkner of Worcester, helpfully quoted a Minister as saying that the policy of the Government was to stamp out smoking altogether. That is fair enough, but if that is their view—if they believe that smoking is so dangerous that it ought to be stamped out altogether—why do they not bring forward a Bill to make tobacco smoking illegal? I have

5 Feb 2014 : Column 234

asked that question before; I have never had an answer, and I doubt very much whether I am going to get an answer today. Those who take to smoking provide the Treasury with about £10.5 billion in extra revenue every year. An honest Government—a Government who put principle before financial gain—would say that this is so dangerous that we ought not to allow it to happen. I do not think that the Government will say that today.

I wish to ask one or two questions for clarification in relation to Amendment 41. The noble Earl has said “smoking in cars” several times today, but that is not what the amendment says. Amendment 41 refers to where a person under the age of 18 is present “in the vehicle”. There are many more vehicles than cars. I do not want to be helpful to the Government, but I am being helpful in pointing this out.

This clarification is necessary because, of course, there are other kinds of vehicle. What about motor caravans? They are not cars—they are big lorries, if anything. Is smoking to be banned in a motor caravan, which is a living space? A towed caravan is also a living space. Will they be affected? What about rickshaws? Smoking in cabs, incidentally, is already banned, if I am not mistaken, under previous legislation. We do not have a ban on rickshaws but we do have rickshaws in London. Are they vehicles? These matters ought to be clarified.

Another kind of vehicle that someone raised with me—I did not think of it myself—is a motor launch. Is that a vehicle? Will smoking be banned in launches when children are present?

These matters need clarifying and the Government will have the opportunity in another place to make those clarifications. I hope that I have been helpful.

Baroness Masham of Ilton (CB): My Lords, I welcome these amendments and I congratulate the noble Earl and all concerned. With this legislation there must be education. Smoking is a public health matter and I hope that local authorities will take up these measures with great energy and that the other place will accept them.

Lord Hunt of Kings Heath (Lab): My Lords, this is an impressive suite of measures and we are all grateful to the noble Earl for bringing them forward today. My noble friend Lord Faulkner referred to the early discussions that he and colleagues across the House had with the Public Bill Office to ensure that it was in order to bring an amendment on smoking within the Bill, and so, with a little flexibility and the door slightly ajar, a great number of substantive changes have been made. The noble Lords who took that initiative deserve a great deal of credit.

I wish to speak principally to Amendment 41, to which I have added my name, in relation to the banning of smoking in cars, I say to the noble Lord, Lord Stoddart, when children are present. The main thrust of my amendment which was agreed to on Report has now been incorporated within the Government’s amendment. This will enable it to be sent to the House of Commons in a watertight fashion, where I hope it will be accepted. It follows the principle we have come

5 Feb 2014 : Column 235

to that there ought to be a ban on smoking in cars when children are present. As I acknowledged on Report, the details need to be consulted upon, and the Government have the ability to do that because of the regulation powers contained in the amendment.

Many noble Lords have been thanked today. I wish to add my thanks to them, particularly my noble friend Lord Faulkner, the noble Baronesses, Lady Tyler and Lady Finlay, and the noble Lord, Lord Ribeiro, for their work in this area. I should also mention the British Lung Foundation, which has done outstanding work to support this initiative, and of course also ASH, which has given general support on a number of these important amendments. I hope noble Lords will also acknowledge the work of my honourable friend Mr Alex Cunningham MP, who pioneered the Private Member’s Bill in the other place on which we have built our work.

5.15 pm

I will leave it to the Minister to respond to the helpful and interesting intervention by the noble Lord, Lord Stoddart, but I do understand the point that he is making. He is saying, if smoking is so clearly harmful—which it is—why do we not just ban it? I just have to say here that there are serious issues around criminalising behaviour in which so many millions of people indulge. Of course, if smoking had just been invented, I doubt whether it would have got approval—but we are where we are, and we are simply trying to protect children who are in a very vulnerable position.

May I ask the noble Earl, Lord Howe, one question, which we discussed yesterday? It is about the potential role of the police in enforcement. Can he confirm to the House that the power that the amendment, if accepted in the other place, would give means that the police might have a role in enforcement? I understand that the Government wish to consult the Association of Chief Police Officers, but will the Minister confirm that the wording of the amendment would allow that to take place? That would be very helpful.

The banning of nicotine products for under-18s is welcome—but may I raise a point made to me yesterday by the Proprietary Association of Great Britain? It was concerned that if the measure were passed it would prohibit the sale of nicotine replacement therapy to adolescents. I have had a helpful response from the Minister, in which he says that the regulation-making power embraced within his amendments allows for exemptions, which could include licensed nicotine products indicated for use under the age of 18. The noble Earl told me that he plans to work with key stakeholders when developing the regulations, to establish which exemptions are possible and necessary, and how they would work in practice. May I ask him to consider involving the PAGB in those consultations?

Finally, my noble friend Lord Faulkner talked about the Scottish licensing scheme. Would the Government, in taking forward regulations in this area, be prepared at least to look at the experience in Scotland, to see whether there are any lessons to be learnt from it?

Earl Howe: My Lords, I am grateful to noble Lords from all parts of the House for their support for the government amendments, and I thank all noble Lords

5 Feb 2014 : Column 236

who have been so energetic and assiduous in this area of policy for the action that they have taken, and the focus that they have afforded to Ministers to promote the health of young people under 18 in this respect. I completely concur with the noble Baroness, Lady Finlay, who told us how addictive nicotine is: tobacco use remains the single biggest preventable cause of death in England. We surely must do all we can to encourage communities to make tobacco less desirable and less accessible, if we are to stop the perpetuation of smoking from one generation to the next.

My noble friend Lord Ribeiro was right, too. The purpose of the amendments is to protect children and young people from the harms of tobacco use and a lifetime of nicotine addiction. I was intrigued and interested to hear from the noble Lord, Lord Faulkner, about the retailer registration scheme in Scotland, and I do indeed undertake to look at it.

The noble Baroness, Lady Howarth, asked me to be a little more precise about the timetable for implementation across the piece. As regards nicotine products, we have not taken a decision on timing. It will be partly dependent on the timetable for laying and making regulations, but the Government want to move as quickly as possible to get the provisions in place. As regards standardised packaging, the timetable will be wholly dependent on the decision the Government take once we have received Sir Cyril Chantler’s report, and we have not taken that decision yet. On proxy purchasing, we need to engage with stakeholders appropriately. It is very difficult for me to give the noble Baroness a timetable because there are technical issues to be looked at; indeed, we would want to examine the experience of Scotland. But we are clear that this is a measure that should be proceeded with.

On smoking in cars, I think my answer has to be: one step at a time. Questions of whether the Government would move forward with legislation or what the detail of the regulations would include are debates to be had at another time, once both Houses have expressed their will on the principle. It would be inappropriate for me to express firm views in advance of those discussions.

That leads me to the questions posed by the noble Lords, Lord Hunt and Lord Stoddart. The noble Lord, Lord Stoddart, asked about the definition of vehicles. The answer is that we have allowed ourselves the scope to define in regulations, should regulations be laid, what kinds of vehicles should be covered. The noble Lord, Lord Hunt, asked me to confirm that the police could be involved in the enforcement of this offence should it be created. I can confirm that the wording of the amendment that we are tabling today allows that scope but, as I have indicated, we need to engage with the police and other stakeholders to determine exactly how this would work.

Finally, the noble Lord, Lord Stoddart, posed the question that he has asked on a number of occasions as to why the Government do not simply make smoking itself illegal. My answer has to be that almost 20% of adults in England smoke and it would be difficult if not impossible to criminalise 7 million people at a stroke. We want above all to help current smokers to quit and to stop young people taking up smoking in

5 Feb 2014 : Column 237

the first place. We know that two-thirds of smokers want to quit but their addiction makes doing so very difficult. That is the approach we are taking.

Lord Stoddart of Swindon: The Minister says that he does not want to criminalise 7 million people, or 20% of the population. But of course that has been done before, as was pointed out by the noble Lord, Lord Ribeiro. The non-wearing of seat belts was made a criminal offence for between 25 million and 30 million people at the time that the legislation went through, which, incidentally, I supported. The excuse that there are too many people smoking who would be criminalised simply will not wash.

Earl Howe: I doubt that in the early 1980s we had a population that was addicted to not wearing seat belts.

Noble Lords: Oh!

Lord Stoddart of Swindon: I was in the House of Commons at that time, and I can assure the noble Earl that the number of complaints I had, from my own constituents and other people, about the compulsory wearing of seat belts was enormous. But I bravely resisted those complaints and spoke in favour of the then Government who brought the seat-belt legislation forward, and of course it was later extended to back-seat passengers as well.

Earl Howe: I am sure that noble Lords would love to continue this debate, and perhaps we could do so on another occasion. I am grateful to the noble Lord, Lord Stoddart, for reminding us of those debates.

We all agree, I am sure, that action we take now to stop young people taking up smoking will have a significant beneficial impact on public health in the long term, which was a point made by my noble friend Lord Ribeiro. It will help young people to live longer and healthier lives, and I say, “Hear, hear!” to that.

Amendment 35 agreed.

5 Feb 2014 : Column 238

(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(6) The Secretary of State may by regulations—

(a) amend section (Purchase of tobacco etc. on behalf of persons under 18) (purchase of tobacco etc on behalf of persons under 18) so as to apply it (with or without modifications) in relation to nicotine products, or

(b) provide for that section to apply (with or without modifications) in relation to nicotine products.

(7) Regulations under this section may make provision in relation to—

(a) all nicotine products,

(b) nicotine products of a specified kind, or

(c) nicotine products subject to specified exceptions.

(8) The Secretary of State must obtain the consent of the Welsh Ministers before making regulations under this section which would (if contained in an Act of the National Assembly for Wales) be within the legislative competence of that Assembly.

(9) For the purposes of this section “nicotine product” means—

(a) a device which is intended to enable nicotine to be consumed by an individual or otherwise to be delivered into the human body,

(b) an item which is intended to form part of a device within paragraph (a), or

(c) a substance or item which consists of or contains nicotine and which is intended for human consumption or otherwise to be delivered into the human body.

(10) It does not matter for the purposes of subsection (9)(a) whether the device is also intended to enable any other substance to be consumed by an individual or otherwise to be delivered into the human body.

(11) The following are not nicotine products for the purposes of this section—

(a) tobacco;

(b) cigarette papers;

(c) any device which is intended to be used for the consumption of lit tobacco.

(12) In this section—

“specified” means specified in regulations under this section;

“tobacco” has the same meaning as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).”

5 Feb 2014 : Column 239

(c) in subsection (5), after “tobacco” insert “or nicotine”, and

(d) in subsection (6)—

(i) omit “cigarette”, and

(ii) after “tobacco” insert “or nicotine products”.

(5) In section 12C(1)(a) (enforcement), for “or cigarette papers” substitute “, cigarette papers or nicotine product”.

(6) In section 12D (interpretation)—

(a) in subsection (1), in the opening words, for ““tobacco offence”” substitute ““tobacco or nicotine offence””,

(b) in that subsection omit the “or” at the end of paragraph (b) and at the end of paragraph (c) insert “, or

(d) an offence committed under section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 on any premises (which are accordingly “the premises in relation to which the offence is committed”).”, and

(c) after subsection (2) insert—

“(2A) In sections 12A to 12C “nicotine product” means a nicotine product within the meaning of section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 the sale of which to persons aged under 18 is for the time being prohibited by regulations under subsection (1) of that section.”

(7) In section 5 of the Children and Young Persons (Protection from Tobacco) Act 1991 (enforcement action by local authorities in England and Wales)—

(a) in subsection (1)(a), for “and sections 3 and 4 above” substitute “, sections 3 and 4 above and section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 (prohibition of sale of nicotine products to persons under 18)”, and

(b) after subsection (1) insert—

“(1A) Subsection (1) applies in relation to section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 only if regulations under subsection (1) of that section are for the time being in force.”

(8) The Secretary of State may by regulations make provision amending, repealing, revoking or otherwise modifying any provision made by or under an enactment (whenever passed or made) in connection with provision made by or under section (Prohibition of sale of nicotine products to persons under 18).

(9) In subsection (8) “enactment” includes a Measure or Act of the National Assembly for Wales.”

Amendments 36 and 37 agreed.

Clause 87: Regulation of retail packaging etc of tobacco products