Mention has been made of local authorities. Again, we know that practices vary widely across different parts of the country. This code of practice means that local authorities will have much greater clarity about what they are responsible for and what they should do. Again, that is light years away from where we are.
A hugely important issue is that of continuing professional development. The schools have now broken up and this document will land on desks in September—it will be a soft landing, I hope—but we need to make sure that over the coming terms, all staff in schools have access to professional development so as to be able to understand their responsibilities, the importance of the code, and what should now happen.
Again, issue has been made about those young people who are not on an education, health and care plan. I am used to a system of school action and school action plus which is replaced by a graduated approach. As the debate has taken place, I have had reservations about the graduated approach because it is not absolutely clear how children will progress. I do not expect the Minister to answer—we have had that debate before—but at some stage we need to come back to that issue and be satisfied that that graduated approach is working.
I am going to end as I started by congratulating everyone involved. I am sure that in years to come this time will be regarded as, if you like, not the end of the matter—of course that will not be the case because the points made by the noble Lord, Lord Low, will happen, but over time—but as the starting point to allow those changes to take place.
Baroness Hollins (CB): My Lords, I echo what other Peers have said about the welcome strengthening of the code, if not its length. I know many in the sector are appreciative of the changes. Having been a member of the recent post-legislative scrutiny committee on the Mental Capacity Act, I would like to comment on the sections of the code that interpret how the law will apply to young people who may lack capacity.
The Bill, quite rightly, gives new rights to young people over the age of 16 to make decisions about their support, subject to their capacity to do so. However, it is unclear in the code who decides whether a young person lacks mental capacity. Is it the young person, their parents, the school or the local authority? The voices of the young person and the parents should, of course, be heard throughout this and I would welcome clarification from the Minister on this point.
Building on this, it is critical to ensure that decisions that young people make are not overly shaped by the desires and agendas of others, including local authorities and other professionals. Mencap has discussed its point of view with me. It would like to see emphasis placed on ensuring that young people get the support they need to understand properly the decisions they are making and to be helped to make an informed choice, both about their support and what they might wish to do after school.
I refer to Annex 1, which sets out the five key principles in decision-making when someone may lack capacity, but clarification is needed about the process
to follow regarding a young person who is judged to lack capacity. The code states that in such a situation decisions will be made by a representative who is,
“a deputy appointed by the Court of Protection”.
Currently, under the Mental Capacity Act, a formal process is not always needed and a formal deputy does not always need to be appointed. Can the Minister clarify this and say whether the code is implying that a new type of education deputy will be introduced rather than following the best-interests process currently used for adults? It is not clear from the code how a decision on whether a young person has capacity can be challenged and I would welcome the Minister’s response.
We must remember that the Children and Families Act 2014 brings in new decision-making rights for young people aged 16 to 18 in terms of education. This is a very new area for the Mental Capacity Act to be applied in. I agree with my noble friends that it would be sensible to review how the code is working at an appropriate point and to focus specifically on this area of implementation of decision-making capacity judgments within such a review.
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Baroness Hughes of Stretford (Lab): My Lords, a number of the points I was going to raise have already been raised so I am going to be brief. There are just a few points I would like to rehearse. First, I welcome the code of practice. It is long and complex but I have great sympathy with the people who have tried to put it together. Its language is certainly a big improvement. It is written in plain language, even if some issues about implementation still need to be a bit clearer. The Minister said rightly that this document is mainly for practitioners and managers. It has been the practice, certainly in the Department for Education and its predecessor, to produce slimmer, accessible versions for parents and young people and I wondered whether the department would consider doing this or at least commissioning someone else to do it.
Secondly, I agree with the noble Lord, Lord Ramsbotham, that the document is still a bit unclear as to what children without an EHC plan can expect. Worryingly, I found the following sentence on page 48 in relation to the local offer:
“In setting out what they ‘expect to be available’ local authorities should include provision which they believe will actually be available”.
By implication, that might include some provision that in fact will not be available. There is a lack of clarity there about what parents who have to rely on a local offer rather than an EHC plan can expect in reality. I wish the document had been stronger in its emphasis on the local authority making sure that what is in the local offer will be available to people.
Thirdly, on accountability, as the noble Baroness, Lady Howe, said, we are still waiting for the inspection framework that Ofsted was going to review and publish. I understand that the noble Lord, Lord Nash, indicated to my noble friend Lady Wilkins that an initial report would be out in late May. We have still not seen that from Ofsted, which makes it difficult to make an assessment about the accountability framework that Ofsted is going to apply.
Fourthly, I welcome the section on nought to two year-olds, and the fact that it is there, but I wonder whether the Minister could clarify something. It is written only for service providers, saying that they must do this and must do that, and does not say anything about the role of local authorities in relation to nought to two year-olds. Would he be prepared to put on record that local authorities are accountable for nought to two year-olds in terms of identifying and ensuring provision there, in the same way that they are for other age groups?
I also wanted to ask something about further education. It has come to my attention—this may be wrong, so I want to check it out—that the person designated as a SENCO in a further education college does not have to have special educational needs qualifications. Is this the case and, if it is, would the Government consider requiring those people to have those qualifications? My second point about FE is about inclusive provision. Having gone round a number of further education colleges and talked to young people, it is quite depressing, to some extent, to see what some FE colleges are providing for children with special educational needs: lots of preparation for living courses, but no identifying and enabling of those young people who could go on a mainstream vocational course. It is an option not often available to young people with special educational needs and disabilities. FE colleges should not be able simply to provide the kind of courses that they think are suitable and shoehorn people into them but should try to include disabled young people on mainstream courses for other students, where they can be included with support.
My last point is about the need for a review of the code and how it is being implemented. The Minister said that the Government would keep the code under review. The problem with that is that, if the department keeps it under review, the rest of us will really not know much about implementation. There needs to be a specific review at a point in time, the results of which are then published for us all to see.
Lord Nash: My Lords, I am grateful to all noble Lords for their comments and questions. I will try to address the points raised but I doubt whether I will manage to cover them all. Where I do not, I will write to noble Lords.
The noble Baroness, Lady Uddin, talked about inclusive education, particularly higher and further education. The code reflects the current position, which includes the general presumption that children with SEN should be taught in mainstream settings. That principle is extended to young people in further education through the Children and Families Act 2014. The code also highlights that schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to plan to increase access over time and to make reasonable adjustments to their policy and practice, which, since September 2012, has included providing auxiliary aid and services such as specialist computer programs et cetera. However, I note the point made by both the noble Baroness and the noble Baroness, Lady Hughes, and I would be
interested to discuss further at the end the point she made to ensure that these colleges are taking their duties seriously.
The noble Lord, Lord Ramsbotham, is to be commended for reading all 270 pages. He must have done so in order to pick up the typographical error. The publication of the final code will not be determined in advance—he is right about that. However, in communicating with schools, colleges and local authorities on the implementation of the reforms, we have always made it clear that the version of the code issued for consultation on 16 April this year was sufficiently near to the final code for implementation-planning purposes. Key duties remain as they are currently for schools and early year providers. They will start to put in place from September the new approach to identifying and supporting children with SEN set out in the code and record those with SEN under SEN support in the January 2015 census. FE colleges will have a duty to use their best endeavours to ensure that young people with SEN get the help they need as they have always done, and will have regard to the approved code of practice.
We believe that the guidance provides a robust framework for supporting those without EHC plans which focuses on the impact of the support rather than how children access support according to the category they fit into. It will also challenge schools to improve the quality of teaching and learning for all pupils rather than inappropriately labelling some pupils as having SEN. The guidance makes clear that schools should involve parents in shaping the support that is provided, be more transparent about what support is available at the school, monitor the progress of all pupils and respond quickly where children are making inadequate progress. School leaders will be expected to include the quality of SEN support within their approach to school improvement, professional development and performance management arrangements.
More generally, we will keep the guidance and the code of practice under review, allowing proper time for the reforms to bed down, particularly as they are being implemented gradually from September. We made provision in the Children and Families Act for subsequent versions of the code to be approved under the negative procedure precisely to enable the code to be kept up to date more easily.
As regards the point about the Criminal Justice and Courts Bill, the Ministry of Justice has indicated that it will consult later this year on its approach to secure college rules. This will provide a further opportunity to contribute to the development of secure colleges and ensure that the needs of young people, in particular as regards their welfare and safety, are met. However, I will pass on the noble Lord’s remarks to try to ensure that when the Bill comes back later in the year he gets a better answer than the one he got last time.
The noble Lord, Lord Ramsbotham, also talked about enforceability and accountability. For the first year we will ask local authorities and parent carer forums to complete implementation surveys on a termly basis. These will focus on whether the key elements
of the new statutory framework are working. We will take action, including appropriate support and intervention, where it is clear that a local authority is struggling to implement the reforms. For the longer term, we are developing an accountability framework for monitoring delivery of the reforms. We expect this to be in place from September next year. It will include an agreed approach for challenging poorly performing local authorities and taking more formal intervention action where necessary. The noble Baroness, Lady Howe, the noble Lord, Lord Low, and other noble Lords asked about Ofsted. Ofsted is now completing its survey of how local areas are working on the reforms and will make recommendations soon about the possible role of inspection in monitoring and accountability.
The noble Baroness, Lady Howe, also asked about the disabled students’ allowance. The noble Baroness will recognise that higher education institutions must meet their duties under the Equality Act. Students can challenge their institution under internal procedures if they do not get the support they should and can ultimately go to court. Currently, they would have to use the Student Loans Company procedures and, as I say, ultimately the courts. As far as appeals are concerned, the outcomes in the EHC plan are much broader than the objectives in the statement as they cover health and social care as well as education and training. Local authorities need to be able to take an integrated approach in describing outcomes in the EHC plan which reflect how a number of services may need to work together to deliver a particular outcome. Making the education and training outcomes themselves appealable could prevent local authorities taking an integrated approach in describing outcomes, but, of course, it remains the case that the special educational provision in an EHC plan is appealable through the tribunal.
My noble friend Lord Addington talked about encouraging charities to make their own version of the code in relation to their particular issues. We know that some organisations are already doing this, an example of which is the Communications Trust. I agree that such organisations are particularly well placed to do this. We are also working with the voluntary sector and other organisations to develop guides to the code of practice, particularly for parents, schools and NHS bodies. My noble friend also talked about training. In order to gain qualified teacher status, trainee teachers must meet national standards which require them to vary their approach to meet the different needs of children, including those with SEN. In 2012, some 76% of newly qualified primary school teachers and 89% of secondary NQTs rated their SEN training as “very good”. It is up to schools to decide what professional development their staff require, and it is true that the code sets out a range of sources of training materials.
For their part, the Government have supported improvements through the teaching schools programme, through their funding for the National Association for Special Educational Needs and its SEN and disability gateway, an online portal that provides access to a range of training resources, including on dyslexia, autism, speech, language and communication needs.
We have also funded the training of more than 10,000 new SENCOs and are supporting Achievement for All 3As to provide leadership to help 1,200 schools in developing their provision for children with SEN. The code of practice makes it clear that school leaders should ensure that staff receive appropriate professional development, and the national training of new SENCOs includes an understanding of the main types of SEN, including dyslexia, speech, language and communication needs and autism.
The noble Lord, Lord Low, referred to special services for deaf children. The code recognises that it is up to the local authority to decide, with local children, young people and parents, what services to commission and to include in their local offer. That will include services for deaf children and those with other types of SEN. He asked whether the system will be ready in time for September. We have always been clear that the reforms will be implemented from this coming September. The key elements of the reforms were set out in a Green Paper in 2011. We have regularly been asking all local authorities in England how well they have been preparing, and local authorities are ready to go. Over 90% have reported that they are ready and the department is working closely with the others. Implementation will be gradual, and we have put in place a range of support, including the £70 million SEN reform grant in 2014-15 to help with plans for the reforms, along with £45 million in 2014-15 and £32 million in 2015-16 for the recruitment and training of independent supporters. We also have the regional SEN champions, drawn from the local pathfinders who have been testing the reforms in practice and from a range of delivery partners with specialist expertise in key areas such as person-centred planning.
I am extremely grateful to my noble friend Lord Storey for his supportive remarks. The noble Baroness, Lady Hollins, mentioned the guidance on mental capacity. We think that the guidance in the code on mental capacity is about right. It sets out how cases where young people and parents lack the mental capacity to take certain decisions under the Children and Families Act should be dealt with. We have provided a link to further advice on the Mental Capacity Act and have listed all the sections under Part 3 of the Children and Families Act in the regulations where mental capacity considerations come into play. However, I have listened to the points made by the noble Baroness and I will reflect on them. We will be able to consider this issue in a further review of the code.
7.15 pm
I am grateful to the noble Baroness, Lady Hughes, for welcoming the code. We are coproducing with parents’ organisations a separate guide to the code for parents and separate materials for young people, both for publication as the reforms come into force.
We believe that the code of practice is clear about the importance of early identification for children in the early years. Chapter 5 of the code provides specific guidance on early identification for children from birth to two and outlines the forms of support that can be considered. It also sets out the measures in place to identify needs early on, including the duty on health bodies to inform the child’s parents and tell the
local authority where they are of the opinion that a child under compulsory school age has, or probably has, a special educational need or disability. That enables the local authority to put support in place at an early stage. I can confirm that local authorities are as responsible for the provision for nought to two year-olds as they are for older children and young people.
It is true, as the noble Baroness says, that the SENCO in an FE college does not have to have a formal SENCO qualification. That is probably part of the point I would like to pick up with her about FE colleges, which I mentioned in opening. It is the Government’s policy to free colleges from unnecessary bureaucratic burdens. We therefore sought to keep the new burdens the Act places on colleges that are independent education providers to a minimum. However, it is, of course, important for there to be oversight of SEN co-ordination and for curriculum and support staff to have access to support in identifying a student’s needs. If they are concerned about progress or if they need further advice, many colleges already have posts that fulfil this role in a similar way to that of SENCOs in schools. While we do not believe, therefore, that it is necessary to extend the specific legal duty to have a SENCO to colleges, we have set out in the draft code of practice that colleges should ensure that there is a named person in the college with oversight of SEN provision to ensure co-ordination of support.
Of course, the code is not perfect and, of course, we will review it over time. I believe that we have come a long way, as my noble friend Lord Storey said, through the passage of this Act and through the code. Our reforms are much needed and have broad support across this House and beyond. Local authorities are ready to take these reforms forward in September, and our other partners who work with children and young people with special educational needs and disabilities are working to support that process. We will keep the code under review as the reforms bed down. The code is fundamental in helping us to improve support for children and young people who have special educational needs or are disabled, and their families, and I urge noble Lords to support it.
Lord Ramsbotham: Could the Ofsted accountability framework be made available to the House as soon as it is published, so that we can see it?
Lord Nash: I will take that back and will ensure quickly that I check precisely where Ofsted is. If Ofsted is not where we think it might be, we might give it a bit of a chaser.
Lord Low of Dalston: May I, too, ask a question of the Minister? May I take him back to the question of disabled students in higher education and their ability to challenge the provision that is being made? I think that the Minister said that they would need to go to court. I assume that that would be by way of judicial review; and, of course, that is going to be much more difficult now that the scope of judicial review is being so much curtailed and the availability of legal aid for judicial review is so much reduced. That is going to
significantly undermine the ability of disabled students to use the courts to resolve these problems. I wonder therefore if the Minister would be willing to give further consideration to a more substantial right of redress for disabled students in higher education.
Lord Nash: Of course, they have redress through the internal procedures of their college, but I will undertake to look at the noble Lord’s point carefully.
The Deputy Chairman of Committees (The Countess of Mar) (CB): My Lords, it might be helpful if I tell noble Lords that there is no need for them to say “Before the noble Lord sits down” in Grand Committee. The only time that one uses it is at Report stage.
Local Audit (Auditor Panel Independence) Regulations 2014
Motion to Consider
7.21 pm
Moved by Lord Ahmad of Wimbledon
That the Grand Committee do consider the Local Audit (Auditor Panel Independence) Regulations 2014.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con): My Lords, the regulations are among a number of statutory instruments which will put in place new arrangements for the audit of relevant authorities as set out in the Local Audit and Accountability Act 2014. Noble Lords may recall that my noble friend Lady Williams of Trafford kindly led the debate on the Wednesday before last on one of these instruments, an order delegating certain of the Secretary of State’s powers to the Financial Reporting Council. The others in the group are all negative instruments.
I do not wish to take up noble Lords’ valuable time by repeating in this debate the arguments supporting the abolition of the Audit Commission that were put forward during the passage of the Bill. However, it remains the view of the Government that the arrangements that we are putting in place, including these regulations, will create a more efficient audit system, giving greater responsibility to local bodies while providing greater opportunities for local people to hold those bodies to account. As has been said previously, this will save £730 million over the five years from 2012 to 2017—the duration of the outsourced audit contracts—and an estimated £1.2 billion over 10 years. As a direct result of this work being done by the private sector, the cost of external audit for local bodies will reduce by £30 million per annum.
Before explaining the content of the regulations, I should first explain their context. A local public body must appoint its own auditor unless it avails itself of
such sector-led collective procurement opportunities as may exist in future. It is important, however, that any authority appointing its own auditor does so taking into account independent, impartial advice from a source other than itself or the auditor. For this reason, we require such authorities to appoint an auditor panel to advise on matters of auditor appointment, resignation or removal, and to advise on the maintenance of an independent relationship between the audited body and its auditor. The panel must have a majority of independent members and be chaired by an independent member.
We already have in the Local Audit and Accountability Act 2014 descriptions of some basic associations which will render an individual not independent for the purposes of auditor panel membership. As I am sure noble Lords will appreciate, the local public sector presents us with a complex set of interrelations and personal interests, and a few definitions around independence had not been comprehensively developed in time to be included in the local audit Bill. The regulations being considered today reflect the further consideration and full public consultation on the detail in the form of draft regulations. We considered it important to consult fully the relevant sectors to ensure that the regulations are proportionate and workable. That consultation took place in autumn 2013.
Respondents to the consultation were broadly content with the measures. Of those expressing a contrary point of view, one respondent argued that back-bench councillors—those not in cabinet in those local authorities running under executive arrangements—should be considered independent for auditor panel membership. However, as all members of an authority have responsibility for appointing the auditor, the Government consider that they cannot be independent from that decision.
Another respondent recommended a shorter, two-year expiry for the period of non-independence due to association with bodies specified in the draft regulations. However, it is the Government’s view that five years is an appropriate period for the effect of those associations to have expired. Among the consultation responses, there was an appetite for guidance on the practical application of definitions of independence. We will consider this with the sector.
More generally, before the introduction of what became the 2014 Act into Parliament, we consulted widely both on the broad policy approach and, in more depth, on the proposed framework, through the publication of the draft Bill. Noble Lords may recall the parliamentary pre-legislative scrutiny committee that provided detailed scrutiny of the draft Bill. During its passage through Parliament, we also provided draft regulations on several key provisions in the Bill, including a draft of the regulations we are considering today.
These subsequent provisions on independence will provide some further definitions of links or associations that would render a person not independent for the purposes of the auditor panel. Persons who have commercial links with the relevant authority to be audited, and persons who have links with a prospective or appointed audit firm, will be added to the existing definitions in the 2014 Act. This is a straightforward
measure, to avoid any predominating conflict of interest in the deliberations of auditor panellists.
Persons who are, or have been in the last five years, members of an entity connected with the authority to be audited, where the connected entity is also a relevant authority under Section 2 of the Act, will also be added. For example, an integrated transport authority is an entity connected with a passenger transport executive. This measure is necessary because the connected entity will also have relevance to the accounts of the authorities with which they are connected, as the connected entity’s accounts are consolidated into them. As a connected entity that is a relevant authority may have members, it is necessary to exclude them as well as officers and employees.
For the Greater London Authority, that means persons who are, or have been in the last five years, members or officers of a functional body of the GLA—for example, the LDA or the London Fire and Emergency Planning Authority. Similarly, for a functional body of the GLA, that means persons who are members or officers of the GLA or who have been in the last five years. Just as members or officers of the GLA cannot be considered independent for membership of the auditor panel, the close relationship these functional bodies have with the GLA must also necessarily render their members and officers non-independent as regards the auditor panel.
It is important to note that the links or associations I have just described, and those described in Local Audit and Accountability Act 2014, need not necessarily disbar a person from being on an auditor panel. In fact, persons with those associations might well have just the kind of expertise that would be useful to the panel in its deliberations. The effect of these regulations on such individuals is only that they must not chair the panel or be counted towards the independent majority required on the panel. The independent view must dominate on these panels, even though that view may have drawn on the input of those who are not independent but provide expertise in their opinions. I commend these regulations to the Committee.
7.30 pm
Lord McKenzie of Luton (Lab): My Lords, I thank the Minister for his very full introduction of these regulations, which we will not oppose. It seems a long time ago that we debated the issues of auditor panels when we were considering the Local Audit and Accountability Bill, as it then was. Like the Minister, I do not propose to revisit some of the debates we had at that time, and certainly not at this hour. The Minister was right to focus on a sentence in the Explanatory Memorandum about local government containing,
“an extremely complex set of interrelations and personal interests”,
and on the importance, therefore, of these regulations containing independent definitions. Some of our discussions have been around the need for audit powers for authorities that had audit committees and around how the two would work together. We certainly accept that the audit committee could be the audit panel if it satisfied the independence rules, but many audit committees would not satisfy them because it is not uncommon for the chair to be an
opposition member. Perhaps the Minister can say whether there has as yet—it is, of course, early days in this area—been any evidence of audit committees being reconfigured so that they could satisfy the audit panel requirement.
We discussed at the time the prospect of the audit panel being a sub-committee of an audit committee, again on the basis that its members would satisfy the independence requirements. Nothing in these regulations would appear to prevent this, and perhaps the Minister can confirm that. It was acknowledged that the definition of “independence” was incomplete when we debated the Bill, and was still incomplete when the legislation passed to the other place. The additions made by these regulations, as has been explained, amend the definition of independence to exclude someone with commercial links to the authority or prospective auditing firm, someone who is or has been a member of a connected authority, and persons who have been members or officers of the GLA or a functional body of the GLA. We support these changes to the independence requirements.
I have some questions for the Minister, and I promise that I will not press the matter of the definition of a “close friend”, which featured previously. I am sure that the Minister will have much more comforting views on that than the Secretary of State, who we teased at the time. None of these regulations precludes individual members having to identify an interest that may crop up. What is their obligation in this regard, in the event that there may be an issue before the audit panel of which an individual member would have to recognise a potential conflict of interest, as would happen in relation to any other committee of a local authority? Can we be clear on members’ obligations to declare an interest and where that leaves them in terms of their ability to vote on the business before the audit panel at the time? What is the position for non-elected members who might find themselves in the same position? What is the position when a majority of members of the panel satisfy the independence requirements, but one or more independent panel members are absent from a meeting? Can the meeting still proceed with its business?
Taken together, these changes produce robust criteria for independence, which are to be welcomed. Whether this is sufficient to ensure that a diverse range of audit providers will ensue from the whole process, I am not sure. Whether it adds to a sense that there is an appropriate level of expertise available to audit panels and local authorities remains to be seen. However, I should like to focus on something that is as much a drafting point as anything. As the Minister said, someone cannot be treated as independent when they have been an employee or partner of a current auditing firm. The same rules apply for a prospective auditor of the authority, who is defined as,
“a person who has made a bid, which has not been declined or withdrawn, for a contract of appointment as the authority’s local auditor”.
I can see that on day one, if you have been a member or a partner of firm A, you cannot be on a particular audit panel if firm A is auditing the local authority until five years have elapsed. It is the prospective bit which is more difficult because you would not necessarily
know at the point of appointment whether or not somebody is going to bid to be an auditor. I am not quite sure how that works. Indeed, I am not quite sure about the concept of somebody making a bid to be an auditor which is then not declined or withdrawn. I am a bit out of date on these things but I think that is not how the process of appointing auditors generally works. Invitations are generally issued to a range of firms. I do not necessarily oppose the point, but I would welcome an explanation of how it will work in practice. Those are the only questions I have for the Minister.
Lord Ahmad of Wimbledon: I thank the noble Lord, Lord McKenzie, for his broad support for these measures. I am getting into a bit of a habit of saying that to the noble Lord across the Chamber or, indeed, the Committee. He raised some pertinent points, and he will appreciate that the effects will become much clearer as these changes bed down.
The noble Lord rightly commented on audit committees. Many councils have audit committees, but, conversely, not all local authorities have them. It is up to them whether they do so and we do not require them to have audit committees. However, the Act allows bodies to use the existing audit committee as their auditor panel provided—this is the key point—that it is independently chaired and has a majority of independent members. Where the audit committee does not have a majority of independent members, the body will be able to set up a small independent panel. We know that 31% of existing council audit committees include an independent member—indeed, 15% have two or more.
The noble Lord asked about conflicts of interest as regards an auditor panel. This will be detailed in the guidance which will be issued. He also asked how these committees are configured. It is too early for me to comment on that but we know that many committees already have independent members under the existing set-up. The noble Lord asked various questions about conflicts of interest and about what happens when an independent member is not present, even though he or she is a nominated member of the committee. As he knows as well as I do, the same rules apply to any council committee—namely, if it is inquorate, a decision could not be taken. The key issue here is that of independence. If the independent member is not present, the committee would not fulfil the criteria which have been laid down, and it would be inquorate.
Lord McKenzie of Luton: Can I just clarify that to make sure I understand? I think that I do. The Minister is defining “quorate” for these purposes in terms of a committee having the requisite number of independent members present.
Lord Ahmad of Wimbledon: That is exactly what I was stating. On the more general issues about conflicts of interest, the individual member has a responsibility in this regard. In both local government and the national Parliament, where there may be a conflict of interest there is a responsibility on the individual to reflect whether that conflict of interest has occurred.
The noble Lord asked a specific question about the auditors to be appointed. That is something that I need to think through. I will write to him with the details of that point. I hope that I have dealt with the questions that he raised.
Anti-social Behaviour, Crime and Policing Act 2014 (Consequential Amendments) Order 2014
Motion to Consider
7.40 pm
Moved by Lord Taylor of Holbeach
That the Grand Committee do consider the Anti-social Behaviour, Crime and Policing Act 2014 (Consequential Amendments) Order 2014.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, the safe use of legal firearms is a priority for this Government. We remain committed to strengthening the effectiveness of the firearms licensing regime as necessary in order to protect people from harm. We introduced provisions in the Anti-social Behaviour, Crime and Policing Act 2014 to ensure that people with suspended sentences of between three months and three years are prohibited from possessing a firearm. The prohibition includes antique firearms and is for five years from the second day after sentence. We took this action in response to a recommendation which was made by the Home Affairs Committee in 2010. The committee recommended that persons with suspended sentences should be prohibited from possessing firearms in the same way as those who have served custodial sentences are so prohibited. The provision, which amends Section 21 of the Firearms Act 1968, came into effect earlier this month.
It was always the Government’s intention that those individuals prohibited from possessing a firearm by virtue of being subject to a suspended sentence should have the right to apply to a court to remove the prohibition. Unfortunately, this right was not included in the original provision, which is why we are seeking an amendment now. As soon as the legislation is amended, any person affected by the prohibition will be able to apply to the Crown Court, or in Scotland to the sheriff, for its removal. It is therefore important that the provision is implemented in the shortest time possible. I commend the order to the House.
Baroness Smith of Basildon (Lab): My Lords, it feels like only yesterday that we had long and ongoing discussions about the anti-social behaviour Bill, and yet here we are, back already with an amendment to it. Obviously the amendment is necessary and I am grateful to the Minister for his candour in admitting that it was a mistake at the time which needs to be rectified. That is most helpful.
The order is limited, but the Minister will recall the wider discussions we had on this issue when we debated it. I was pleased to hear him say that the Government are committed to improving the system. He knows that we were critical of these clauses, and while we welcomed the changes, we did not think that they went far enough. This order is about the appeal process, which was something that was of concern to us when we looked at the granting of certificates and licences. We were critical of the piecemeal approach to making changes, and he will recall the discussions we had at the time. One of our strongest criticisms around the issue of appeals was in the area of domestic violence. We were disappointed when the Government rejected our amendment to provide that where there was substantiated evidence of a history of domestic violence, there should be a presumption against having a firearms certificate or a shotgun licence unless there are grounds for exemption.
We raised this issue because of evidence presented to the IPCC, and then set out in its report, on the appalling and tragic death of Mrs McGoldrick by Michael Atherton. It was quite clear that one of the reasons that Atherton was able to hold a legal firearm was because of flaws in the decision-making process in that, as the IPCC put it, the fears of an appeal were placed above the evidence of domestic abuse. Given all the problems such as his drinking and his violence, the report also said that his certificates were reviewed and a final warning letter was sent that,
“advised him that any further reports indicating any form of irresponsible or irrational or uncontrollable behaviour would result in the immediate revocation of his certificates”.
They were not taken away then because of the fear about his ability to appeal and now we are discussing appeals again today.
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The Minister will realise why we put that amendment forward at the time. It concerned situations where there was evidence of domestic violence. At present, there, have to be convictions, and even then the relevant action is not possible. However, today we found out from police forces across the country through a freedom of information request that community resolutions—which should be used only for low-level crime such as graffiti—have gone up from around 1,300 in 2009 to more than 3,000 now in cases of domestic abuse. As there has not been a caution or prosecution, this is not recorded anywhere. Our great fear is that if people have committed an act of domestic abuse or domestic violence and it has not gone to the courts, with the police deciding, “We can sort this out between us”, it is not recorded in any way so when the police come to look at an application for a firearm, the evidence they need is not available. Our proposed amendment to the Bill would have allowed the evidence of a community resolution to be taken into account. That is not now available. It is quite clear that domestic violence needs to be a criminal offence and not just something that can be dealt with by community resolutions.
I have some questions for the noble Lord. We support the order. We think it is right but that it opens up deeper and wider issues. In the light of the IPCC comments, what assessment has been made of the
right of appeal? What assessments have been made of the impact of the appeal process on a police force’s decision to issue a certificate or a licence for a firearm? Does this order mean there will be any further guidance to police in relation to the issuing of certificates and appeals? My next point is key. Given all my points about community resolutions, such as not prosecuting and cases being disposed of but not recorded, does the Minister think that the use of community resolutions in domestic violence cases makes it more likely that those with a history of domestic violence, but not a conviction or caution for it, could more easily obtain a legal firearm? I think that is a very serious point.
We are saying to the Minister that, in looking at appeals, there needs to be a much wider consideration of the process, the place and the implications of the process of appeal in the decision to grant licences. Clearly sometimes it is inappropriate, as it was in the case of Michael Atherton, who then murdered his former partner. We support the order but hope the noble Lord can say that the Government are going to reconsider the impact of the appeals process on decision-making and that the police should be able to take into account the evidence we asked for, not just convictions, as is currently the case.
Lord Taylor of Holbeach: I thank the noble Baroness for her contribution in debate to the passage of this order. I know exactly the feeling which lies behind her comments and I think that, to a very large extent, there is some common ground between us. Certainly, both of us would view domestic violence and domestic abuse as being totally wrong, whoever the perpetrator.
This issue has moved up the political agenda. We should acknowledge that my right honourable friend the Home Secretary, Theresa May, has talked frequently on it. The Prime Minister made a speech last week in which he mentioned it. The shadow Home Secretary, Yvette Cooper, has similarly pointed out the importance of tackling domestic abuse and domestic violence. I understand that. This order is not directed solely at domestic violence cases; it is a general order that enables people who have been disbarred from having a licence because of a caution or, as the law provides, a conviction, to apply for removal of the prohibition. I am sure that the noble Baroness in her support for the order does not want to remove the right of appeal from people in such circumstances.
The noble Baroness asked—and it is a fair question—whether the increase in community resolutions to deal with domestic violence will mean that more perpetrators of domestic violence are able to get firearms licences. The Government have taken decisive steps to ensure that community resolutions are used only in those cases where they are suitable. There must be cases where such resolution is suitable. We have also strengthened the way in which domestic violence is considered in relation to firearms licensing applications. New guidance was published in July last year. It is clear that evidence falling short of a conviction, which would include a community resolution, can be taken into account when deciding on suitability for a licence.
Baroness Smith of Basildon: That is very helpful. Can the Minister assure me that the guidance refers to community resolution, or does it refer just to it not having to be a conviction or caution?
Lord Taylor of Holbeach: I cannot categorically say that, but the advice I have is that community resolution would be included. Of course, I am prepared to write to the noble Baroness; it is difficult when we are at the end of a session like this to give proper advice to her.
Each case must be assessed on its merits. I have always said that it is important that police discretion should lie at the bottom of these issues. Evidence of domestic violence will generally indicate that a person should not be permitted to possess a firearm. I say here on the record that that is the Government’s position. We have provided guidance on the updated provisions in a Home Office circular. Authorised professional practice on firearms licensing has been brought in by the College of Policing to complement the Home Office guidance and to ensure consistency and high standards across police firearms licensing departments. Her Majesty’s Inspectorate of Constabulary will also conduct an inspection of firearms licensing departments in early 2015.
I have before me details of some cases which I do not think will necessarily add to the debate this evening, but if I can write to the noble Baroness, I will do so. I could include, for example, the details of the Atherton case and show how that fits into the context of these orders. As we know, domestic violence is already covered by a whole range of criminal offences. The question that I think lies at the heart of the noble Baroness’s challenge is whether there should be specific mention in law of domestic violence. We need to think very carefully about that because the graduation between violence and domestic violence is often a difficult one. The established law provides for the police to prosecute in domestic violence cases.
Baroness Smith of Basildon: I do not wish to detain the Committee and I am particularly grateful for the Minister’s offer to write to me. I know it is difficult; I said to him earlier that I wanted to raise the issue and I am grateful he has allowed me to do so. From what he said there does not seem to be a mile between us on this, but the difference is that we are suggesting that a conviction for domestic violence should lead to a presumption against being able to obtain a weapon. He says that will be covered in guidance, but the IPCC was quite clear that the discretion the police had made them very nervous about rejecting a licence, even in the case of Michael Atherton, because the appeals process can be challenging and is very expensive. I will not pursue it today, but if, when he writes to me, he can look at whether the guidance that now exists would address the failures in the Atherton case, that would be very helpful. I would be grateful if he could do that.
Lord Taylor of Holbeach: I thank the noble Baroness for that. It is important to understand that the order we are considering is about an appeal to a court—the Crown Court in the case of England or the Sheriff Court in the case of Scotland. It is important not to conflate that with the police’s view of whether they should grant a licence for another situation where there is suspicion of domestic violence. I understand that the noble Baroness wished to raise it, but it is a slightly different issue. It is important not to conflate the purpose of this order with the broader question of how we tackle domestic violence. I beg to move that the order be considered.
Committee adjourned at 7.56 pm.