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Grand Committee

Wednesday, 4 March 2015.

Arrangement of Business


3.45 pm

The Deputy Chairman of Committees (Baroness Andrews) (Lab): My Lords, if there is a Division in the House, the Committee will adjourn for 10 minutes.

Single Use Carrier Bags Charges (England) Order 2015

Single Use Carrier Bags Charges (England) Order 201521st Report from the Joint Committee on Statutory Instruments23rd Report from the Secondary Legislation Scrutiny Committee

Motion to Consider

3.45 pm

Moved by Lord De Mauley

That the Grand Committee do consider the Single Use Carrier Bags Charges (England) Order 2015

Relevant documents: 21st Report from the Joint Committee on Statutory Instruments, 23rd Report from the Secondary Legislation Scrutiny Committee.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con): My Lords, Schedule 6 to the Climate Change Act 2008 enables Ministers to make an order to bring in charges for single-use carrier bags. I shall explain the main elements of the charge but, first, I should like to remind the Committee why the Government are legislating for a modest charge on single-use plastic carrier bags.

We are committed to reducing the number of these bags in distribution. This will in turn reduce the environmental impacts of the production of these oil-based products. It will also reduce the impact of plastic bags at the end of their lives, particularly on the visual environment and wildlife when they are littered. Similar charges in other countries have demonstrated how effective this simple measure can be. Customers are encouraged to reuse their bags, rather than incur the charge. When bags are charged for, we expect the profits to be directed to good causes.

There are currently too many single-use bags being needlessly distributed. Efforts to reduce the number of single-use plastic bags without resorting to legislation have led to a good deal of success in the past. Such voluntary initiatives by retailers saw a reduction in the distribution of single-use plastic bags by 48% between 2006 and 2009. This was significant progress, but the number of single-use plastic bags given out is on the rise. In England between 2010 and 2013, there was an increase of 18%, which is just over 1 billion bags. In 2013 alone, England’s main supermarket chains issued more than 7 billion single-use carrier bags to their customers. As we all know, far too many of these bags made their way on to the streets and into the countryside as unsightly litter. They were also discarded on beaches and in the sea, where they can cause harm to wildlife.

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Plastic bags also have a negative impact on the environment through their production and disposal. The oil that is used in their creation and the tonnes of plastic that go to landfill mean that we must take action to reduce the use of plastic bags. Where they are used, these bags should be reused as often as possible and then recycled.

The Environmental Audit Committee’s report on plastic bags last year was carefully studied by the Government. There may be some details of the scheme on which we agree to disagree, but we are all in agreement that reducing bag use has real environmental benefits. It will mean lower carbon emissions, more efficient use of valuable resources and less litter.

The order introduces a requirement to charge for single-use plastic bags. There has been a largely positive response to the announcement of the charge, which is a proven tool. In its first year, the Welsh charge resulted in a decrease of 76% in the number of single-use plastic bags distributed by the seven big supermarkets. We have been able to use the experience from the Welsh charge to help shape our scheme. A similar charge was introduced in Scotland last October. The English charge will commence in October 2015. It will require retailers to charge a minimum of 5p for every new single-use plastic carrier bag—the same as in Wales and Scotland. Bags used for deliveries will incur the charge, as well as those used to carry purchases away from a store.

Small and medium-sized businesses will be exempt from the charge in England. We recognise that some wanted SMEs included but we concluded that we need to avoid administrative burdens on start-up and growing businesses in England at a time when we want to support new growth in our economy. It is also worth bearing in mind that the current UK retail market is dominated by a comparatively small number of large stores with over 500 employees, employing 65% of people working in retail with 69% of all annual turnover of retail businesses. Any retailer that is not covered by the legislation will of course be able to charge for bags voluntarily.

As in Wales and Scotland, we hope—indeed, expect—retailers will give the proceeds of the charge to good causes. The Climate Change Act does not give the Government the powers to determine what retailers do with the proceeds of the charge. However, we will require them to report to the Government the number of bags they give out, the amount raised by the charge and what they do with the proceeds. We will then make this information public and expect that pressure from customers will ensure that the net proceeds—once reasonable costs have been deducted—go to good causes. Many of the large retailers have already stated that they will be giving the proceeds to charities or community groups and will publish details on their websites.

It would, of course, be fitting if some environmental causes were to benefit from the charge in England. In Wales, charities such as the RSPB, Keep Wales Tidy and Save the Children have benefited from the proceeds of the Welsh charge. Keep Wales Tidy has used the funding to support a Routes to School project, which aims to address litter problems on school routes by

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engaging and educating children and their families. It is not only charities that stand to gain from the charge. When littered, carrier bags cost taxpayers in England about £10 million every year in clean-up costs.

Of course, there will always be a need for some plastic bags. People may forget their reusable bags, or they may require a new bag—for example, to avoid contamination if they are buying raw meat. At the same time, we should aim to reduce the visual impact and harm to wildlife if these bags were littered.

A bag that biodegrades into harmless products is clearly desirable. That is why we are working with industry and academic experts to review existing standards and will report to Parliament before the charge comes into force on 5 October 2015. The report will state whether it appears that there is an existing industry standard or standards appropriate for excluding biodegradable bags and, if so, how that exclusion is to be implemented. We are keenly aware that the success of a biodegradable bag will also depend on more sophisticated ways of separating plastic waste. We need to ensure that the quality of recycled plastic does not suffer as a result of contamination with biodegradable bags.

We are focusing the charge on plastic bags as part of a targeted and proportionate approach to this issue. Plastic carrier bags take the longest to degrade in the natural environment, can harm wildlife and are extremely visible when littered in our towns, parks and the countryside. Paper bags make up less than 0.1% of carrier bags distributed in the UK by the seven major supermarkets and can biodegrade naturally in the open air. Of course, paper bags should still be reused a number of times before being recycled and should never be littered.

There are a few specific circumstances described in the legislation in which bags will not incur the charge. These include, for example: bags used solely to carry uncooked meat or unwrapped food and goods contaminated by soil, where there would be issues with food safety from contamination; bags for prescription medicines, where pharmacists have an obligation to protect the privacy of patients; and reusable bags for life. Purchases made on board planes and boats and in airports will also not incur a charge as it would be unreasonable to expect people to be carrying reusable bags in those transit places. The charge will be enforced by local authority trading standards officers. It will be light-touch, pragmatic and complaints-led. We are funding training for local authority officers.

A full assessment of the costs and benefits has been carried out. The total net impact of the scheme over 10 years is calculated to be a positive benefit of more than £780 million. That figure includes savings from reduced costs associated with littering and carbon dioxide-equivalent emissions.

Although consumers may incur an initial cost in purchasing reusable bags, these are designed to be reused many times and the supermarkets will replace them for free. Although single-use bags will now cost 5p, anyone who wants to avoid paying the charge will be able to do so by taking their own reusable bags to the shops. We encourage people to do this.

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We expect that there will be an increase in sales of bin bags, as there was in Wales, as people currently often reuse single-use plastic bags to line their bins. However, even when this is taken into account, the impact of the charge in Wales has been a dramatic overall reduction in the amount of plastic used. We anticipate that the charge will reduce plastic bag distribution in supermarkets by between 70% and 80%, and overall in England by between 50% and 60%.

The order includes a review of the legislation to be carried out within five years of the charge coming into force. It will be at that stage that the reporting requirement will prove essential in assessing the effectiveness of the charge. Any changes to the legislation could also be considered at that time.

We are pleased that the European Union has reached agreement on a robust plan for tackling the blight of plastic bag pollution, with each member state doing what works best in its own circumstances.

In summary, the Government consider that the approach set out in the order provides a fair means of charging that supports the Government’s aims of minimising waste and resource use. I therefore commend the order to the committee.

Lord Anderson of Swansea (Lab): My Lords, the Minister began his speech with a ringing declaration: “We must take action”. He set out a very convincing case on financial and environmental grounds for the action that the Government propose to take.

I recall the dedication in the magnum opus of a regius professor: “To my wife, at last, at long, long last”. The key observation is on the process of government and why there has been such a long delay on what is clearly an overwhelming case for action. It is not as though this is some startling brave new initiative on the part of the Government. No, as the Minister said, the proposal is already in force in Wales and has been since 2011. There has been ample time to see the results. It is not some laboratory experiment. We can see the results in Wales already; in Northern Ireland, since 2013; and in Scotland, since last October. It is not as if the results are uncertain. If we have eyes to see, we can clearly see the results. Given the very close nexus between Wales and England, do the Government seriously think that the response of the public and retailers would be different in England? All this vast expenditure on research and consultation in England is surely otiose. The views of the Welsh public are already well known. Do the Government have any strong indication that Welsh public opinion is different? The effect of all this is further cost and degradation.

I recall that in my Parliamentary Question on 14 May 2013, I asked,

“the pilot scheme in Wales has lasted for several years. Will the Minister spell out very clearly the objections to the implementation of the scheme in England?”.

The Minister answered:

“My Lords, as I just said, we are monitoring the charging scheme in Wales and data from the first year will not be available until the summer”.—[Official Report, 14/5/13; col. 264.]

That response was given in May. Now almost two years have passed and, even for the limited scope of the Government’s plan, they have been two wasted

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years. Since we know that 7.9 billion bags were given out in 2013, the two wasted years effectively amount to almost 16 billion bags. There was a successful test in Wales, which was clearly accepted by the public.

To give my personal position, I shop in supermarkets and retail stores in both Wales and England. There were no concerns in Wales when the charge was introduced. People fall quickly into the habit of taking along shopping bags to the supermarkets. When I shop in London, I do so with exactly the same habit and take along a shopping bag. I am sure that the bulk of people in Wales would do the same.

I note also that in Article 1(d) the Government have suggested an end date of 5 October 2022, as though they are not wholly convinced. What is the purpose of having an end date for this long experiment? It is something that is already working successfully in Wales. Does this mean that the Government are not wholly convinced? We know that a Government can review or end such a situation at any time if they choose to do so. Why include a sunset clause when the evidence is so clear?

4 pm

Perhaps I may make a few comments on the Explanatory Memorandum. We are told in paragraph 2.1:

“The Order will ensure that retailers with 250 or more employees charge a minimum amount for unused single use (lightweight) plastic bags”.

What proportion of the total number of plastic bags will be covered by stores employing 250 or more employees? It means that a fairly sizeable number will not be covered, even though the Government are convinced at last of the environmental and financial benefits. Indeed, we are told in paragraph 5.1 that there is,

“a smaller number of retailers located outside England who supply lightweight plastic bags for the purpose of enabling goods to be delivered to persons in England”.

Surely they cannot be from Wales, Northern Ireland or Scotland. Where do these bags actually come from? It is made clear in paragraph 7.6 that,

“requiring 5p to be paid for each single use plastic bag supplied will significantly reduce the number that people use. As yet unpublished, social research has suggested that this is acceptable to consumers”.

We could have told the Government that without any recourse to social science research because it is there in plain sight for them to see in the way that this has been accepted in Wales.

I am wholly unconvinced by the Government’s reasons for the delay. We are told, of course, that those with fewer than 250 FTEs will be able to charge on a voluntary basis if they wish, as set out in paragraph 7.8, and that,

“we know of one franchiser who is already encouraging its outlets to do this”.

What sort of reporting and administration will there be? What will happen, for example, if these smaller retailers choose to pocket the sum? Will there be any review of the money that is given to charity?

I could go on analysing all the elements here, but it is clear that the Government should have taken this action a very long time ago. Now they have gone part

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of the way along the road with much ado. Any sensible Government would have looked not at a laboratory experiment, but at the actual result in Wales of how the public have responded to the initiative taken there. However, the Government have chosen to ignore that and to carry out their own research, which was both unnecessary and otiose. They should not be applauded for this belated initiative.

The Earl of Lindsay (Con): In speaking, I declare an interest as a non-executive director of BPI, which is one of Europe’s largest manufacturers and recyclers of polythene film. However, I stress that BPI has no interest in single-use carrier bags. I welcome this order and its overriding purpose is admirable. However, it is of concern that some of the details of the order go against the unanimous advice of the Environmental Audit Committee, the advice of the British Retail Consortium and a number of other retailers outside the BRC, and the advice of a number of industry organisations. I should stress that it is the detail of the order, rather than its overriding purpose, which has caused a number of organisations and the Environmental Audit Committee some concerns.

In addition, I believe that the detail of the order is, in parts, at odds with the Environment Agency’s own life cycle analysis. Therefore, it is regrettable that, while there may have been—as the noble Lord, Lord Anderson suggested—a delay in bringing forward the proposal, the order itself has been rushed as regards the opportunity to discuss with other parties what the detail of the order should contain.

The EAC held exhaustive investigations into the proposals, and concluded by flagging a number of concerns to Defra in its report, including the fact that the exemptions proposed in its charging scheme for small retailers, and paper and biodegradable bags, would make the scheme too complex. More specifically, the Environmental Audit Committee ruled that an exemption for biodegradable carrier bags was not viable because of the damage such an exemption would cause to the UK plastic films recycling industry. I will focus on the exemption relating to biodegradable bags, because of its unintended consequences.

The summary of the EAC’s report states:

“The options for disposal and recycling of bags are complex, with significant risks around contamination, and must be coherent with the Government’s wider approach to reducing and managing waste. The proposed exemption for biodegradable bags risks damaging the UK plastics recycling industry, could undermine the reduction in bag use, and is not necessary. It should not proceed”.

The Packaging and Films Association agrees, pointing out that if biodegradable or oxodegradable plastic carrier bags are used, they will result in an adverse impact on the recycling process of plastic, rendering recycled plastic totally unusable for certain applications and severely reducing its performance for others.

It is not just the PAFA. Studies by universities have proved that with inclusion rates in recyclate of biodegradable and/or oxodegradable materials at very low levels—between 2% and 5%—the quality of the recyclate is severely impaired. There are also concerns, incidentally but not unimportantly, that such an exemption

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would send a confusing message to consumers, whom the industry wishes to encourage to reuse and recycle products at the end of their life.

The industry is wholly committed to the reuse of its products, and many in the industry have no problem with the proposed levy and support this order. However, they are widely concerned about the scale of the impact that an exemption for biodegradable and/or oxodegradable products would have on the UK’s existing plastics recycling industry. Those concerns have been recognised in Europe, where oxodegradable technology has now been recognised by almost every major European retailer and every other major western EU member state as not being a suitable alternative to biodegradable materials.

The UK polythene film recycling industry, which supports thousands of UK manufacturing jobs and is an excellent example of advancing the circular economy, has no financial or business interest in the manufacture or sale of single-use carrier bags and thus has no competitive interests in those products. The oxodegradable manufacturers’ association, which I understand is promoting such an exemption, supports just 32 jobs in the United Kingdom.

It is inevitable that if an exemption for biodegradable or oxodegradable single-use carrier bags is included in any regulation at a future date, as anticipated by this order, it will result in an increase in these products becoming included in the UK plastics recycling waste stream. My noble friend pointed out that more sophisticated methods are needed for separating biodegradable from non-biodegradable materials—he is right. Not only are more sophisticated methods of separation needed, but we have to be economically realistic. This difficulty is likely to play into the hands of exporters, whose recyclers can hand-sort, and would undermine the UK recycling business, which has been driven towards automation and cannot afford to add labour to hand-sort.

To allow those products to enter the UK plastic films waste stream would have other regrettable consequences as regards the existing reuse of plastic and plastic films. I will give noble Lords just one example. One of the major uses for recycled plastic pellets is the manufacture of building films and membranes used in the construction of all new housebuilding. From June 2015, all materials supplied to the UK housing and construction markets will be required to include a lifetime guarantee. To give such a guarantee will not be possible if the raw material used in the manufacture of these products could include bio or oxodegradable content, which could cause product failure within the lifetime guarantee. This will result in the manufacture of these products reverting from using recycled sources to using prime or virgin raw materials, and thus reduce the available market for UK-manufactured recycled plastic pellet. It has been suggested that this is a small price to pay for the inclusion of a biodegradable exemption. However, with so many UK manufacturing jobs at stake, such a suggestion is viewed as being incomprehensible. I could cite plenty of other examples of similar unintended consequences.

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I must restate that the UK plastic films recycling industry does not have any interest in the manufacture or sale of single-use supermarket carrier bags and supports the Government’s purpose in introducing a charge on single-use bags. However, the proposed exemption for bio or oxodegradable bags will have a detrimental impact on the UK plastic films recycling industry and will lead to immediate problems and unintended consequences. Also inherent in such an exemption are real difficulties in terms of policing and the opportunities for fraud. I do not know whether Defra has considered this inevitable dimension and the resourcing of this oversight. Can the system be properly administered? I am not sure.

The chairman of the British Plastics Federation’s recycling group said recently:

“Over the last three years, the UK has seen the emergence of significant infrastructure to support plastics recycling. This is at a critical stage where it is necessary for these investments to demonstrate profitable growth and to meet the needs of higher overall recycling targets. This policy exemption could undermine these businesses due to the potential for contamination”.

The director-general of the British Plastics Federation, speaking on behalf of the wider industry group, Plastics 2020, said:

“All this will spell a loss of jobs in what has been a potentially thriving plastics recycling sector and put paid to further progress in meeting Government’s ambitious recycling targets”.

Let me finish with a quote from the British Retail Consortium. It stated:

“Biodegradable bags can be really confusing for the consumer and very challenging for the retailer to be able to communicate how to dispose with these bags correctly. Biodegradable bags cannot currently be recycled along with single use carrier bags—a challenge for those supermarkets providing front of store carrier bag recycling points. There are serious doubts about the environmental benefits of oxo biodegradable plastics. They cannot be composted, they add nothing to incineration, there is mixed opinion about their fate in landfill, and reprocessors do not want this material because their customers have doubts about the effect on the longevity of constructional plastics”.

I strongly urge the Minister to think carefully about how the review that the order requires to be carried out by 5 October 2015 is carried out. The requirements of that review, which are set out in the order, should include a cost-benefit analysis of the effect of implementing an exemption for bio or oxodegradable plastics.

The Lord Bishop of Chester: I am sure that one would not want a bishop to put himself forward as a paragon of virtue, but I have in my hand a bag that I have used for the last 20 years, which my Danish mother-in-law bought in Copenhagen. It is a shopping bag, and I walk around your Lordships’ House with it. There it is. I have two of them, which I treat as one might treat one’s pet cat or dog.

I welcome the order and hope that cathedral shops, which do not employ anything like 250 people, and other such places involved in the life of the church, will join the spirit of the change, make the charge and not just pocket the benefits for their own charitable purposes.

I have a couple of questions for the Minister. Will the exemptions in this order parallel exemptions that apply in Northern Ireland, Wales and Scotland? If

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not, why are some greater than others? It would be helpful to have that information and the logic of that. Also, the figure of 250 seems quite high. How easily would the Government be open to a reduction in that figure? Indeed, what is the equivalent figure in the other parts of the United Kingdom? Are other materials used in packaging single-use? Lots of vegetables are presented in plastic packaging that is essentially single-use. As I look around the roadsides at this time of year, when you especially see all the plastic debris before spring comes, the litter is by no means only single-use plastic bags from supermarkets.

My final question relates to the remarks of the noble Earl, Lord Lindsay. If a plastic bag biodegrades, what does it biodegrade into? I had a misspent youth as a chemist and my guess is that the bag biodegrades into carbon dioxide, inasmuch as there is carbon in the plastic. Other people here will probably have greater scientific skills than me, but that is what happens. When plastic biodegrades, the carbon in the plastic becomes carbon dioxide—as I understand it and unless I can be corrected. Why make this order under the Climate Change Act and provide an exemption for biodegradable bags when they biodegrade into carbon dioxide? That is, if I have got my primitive chemistry correct, some decades on from when I last practised. I want to welcome this but some broader questions should be asked around the order.

4.15 pm

Lord Holmes of Richmond (Con): My Lords, I rise to raise a number of issues with the order. I do not think anybody would disagree that plastic bags, when chucked out of car windows or off cliffs, are unsightly, dangerous to marine life and wildlife, and generally a bad thing. However, the bags themselves do not find their way off the cliffs or out of car windows. It is a person who throws the bag out of the window. When a murderer stabs somebody to death with a Stanley knife, it is not the Stanley knife that kills the person but the murderer who pushes the Stanley knife into them.

There is a great deal of inconsistency, incoherence and muddle with this rushed order. I turn to the material itself. Plastic comes up pretty favourably in terms of overall impact as against paper, unless paper is considered to be used multiple times, which for shopping bags is highly unlikely. First, how can we have an order that applies to one material while discriminating against many other materials? Secondly, how does it fit in with EU law to single out one material for special treatment while leaving other materials unfettered? Similarly, on the 250 employees point, that is an interesting figure but pity the poor seagull choking to death on a plastic bag, only to be told, “I’m really sorry, pal, but it came from a local store of only 50 employees in the overall chain”. Or imagine the same seagull on another occasion, choking on a supermarket plastic bag only to be told, “It’s not great for you, pal, but someone did pay 5p for it so at least we have moved on there”.

Similarly, and on a point previously raised, how do these regulations sit alongside those already made in the devolved nations? If we are to have an approach to

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single-use plastic bags, it would seem sensible to have coherence across the country. We are the United Kingdom of Great Britain and Northern Ireland. This really could be one small measure to connect across that United Kingdom.

Another point that has already been raised but is worth reiterating is the one about oxo- and biodegradable. What is the Minister’s view on how this can be effectively transitioned into the overall plastic bag policy and approach, and what will this do to the recycling process, apart from throw it into complete and utter chaos?

My noble friend the Minister described the 5p charge as a modest charge. He set out eloquently in his introduction the magnitude of this problem, but we have a modest charge. If you pay 5p, you can carry on with this behaviour quite happily. A 5p entry fee to chuck a bag out of a window—whatever you choose to do with it—is not really a high price. Does it really go to the heart of the stated aim of this order?

With regard to the redistribution, as set out by Defra, there are no powers for Defra to say anything about the redistribution of these funds. Who can say where they will go and what they should go on? Why should we create something that effectively gives businesses of more than 250 employees the right to set up a brand new branch of their corporate social responsibility policy, where they can choose wherever these 5ps go? They are not their 5ps, they are the 5ps of the customers who have been having to pay this to get the groceries they have already paid for home from the supermarket. It is a 5p tax on carrying your stuff home rather than having it in your arms or other bags because you happened to turn up with no bags. Those 5ps will be multiplied to give supermarkets and other businesses the right to set up virtue funds on whatever they choose to spend them on. Who will decide, who will determine and who will measure? Who will say whether these are good charities or organisations to have this money spent on? Who can say whether the so-called environmental causes that a lot of this money is likely to go to have a positive impact on the environmental aims so stated? Who can say?

Who can say whether the money even gets redistributed at all? As set out in the Defra paper, there is an “expectation” that that is where these 5ps will go. An expectation—what a marvellous concept. I apologise for coughing: a single-use bag got stuck in my throat to highlight the problem we are discussing. What sort of impact does an expectation have? We can save a lot of money with the new super-prisons and other institutions we are building by not putting any walls around them because we can have an expectation that the prisoners will stay within the grounds. An expectation—what oomph does that really have?

In conclusion, we are talking about single-use bags but what we have as currently drafted is a ragbag of an order that is incoherent and inconsistent. Does it really go to the heart of any environmental matters? I ask the Minister: what percentage of overall landfill is made up of single-use plastic bags? I hope my noble friend will be able to consider some of these points and get the order into a more coherent shape by the time it is laid.

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Lord Dubs (Lab): My Lords, I broadly welcome this proposal. Some of us have been arguing about it for years and years. I remember that when I raised it with another Minister, I was slapped down and told that the Government had no intention of doing this, even though I pointed out that it was a benefit and the Government might even raise some revenue. At the time we were talking about a tax on the bags rather than a donation to the supermarkets.

This is a good idea. I think Ireland started this even before Wales and it seems to work pretty well there. Despite the objections of the noble Lord, Lord Holmes, the system works pretty well where it has been in used in Wales, Ireland and Scotland. But I welcome the Government as a repenting sinner. The Government were against this in the past, but it is pretty good that they are in favour of it now.

Some supermarkets—Sainsbury’s or Marks & Spencer or both—charge 5p already. But, of course, they do not publicise the fact at the till. It is only when one does a self-service transaction, by putting one’s purchases against the barcode—you see, I go shopping myself; how many others go shopping?—that, occasionally, it asks you to indicate whether you have no bag or that you should be charged for the bag. Sometimes, for very small bags, there is no charge. The system needs more publicity, both at the point of sale and more generally. If people know that they are being charged—sometimes it is easy not to notice, they might pay more attention.

I remember some years ago, when Ireland introduced the scheme, I was at a conference with Irish politicians in Oxford. We looked out the window and saw somebody walking along the street with 15 plastic bags—I think they were the orange Sainsbury’s ones. The Irish politicians said, “That wouldn’t happen in Ireland any more”. They have stopped it, and it works there. We are following on a bit late, but we are doing it.

My other specific point on publicity is this: I am trying to interpret the exemptions. If, say, somebody buys six loose oranges, does that enable them to have a bag without the charge or would the charge apply? It is not clear to me. Sometimes fruit is packaged and sometimes it is sold loose. It is slightly less expensive if it is sold loose. I wonder how that will be handled.

I understand that there is higher energy content in making a paper bag than a plastic bag but there is a good argument against plastic bags.

A lot of us were brought up to go out with a shopping basket—I am old enough to remember that—or bag and would not dream of expecting the shop to provide the packaging. There is no harm in going back to that.

I add one other plea about the amount of plastic wrapping on products, which is not directly concerned with the order. Buy a simple toothbrush and try to open it without a pair of scissors or a knife; it will be too firmly packaged. The Government should move on from this to look at other forms of packaging, which are totally excessive and add to the amount of plastic in the environment.

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Baroness Golding (Lab): My Lords, I did not intend to speak, but I think I should, following my Welsh cousin’s contribution. Some time ago, I went on holiday to Wales and found myself being charged 10p for a plastic bag. I made some inquiries among my Welsh friends. It cost 10p in north Wales, 5p in mid-Wales, 2p in south Wales and nothing if you knew the shopkeeper well. I had my doubts about the whole system already, but I remembered that, in north Wales, I had looked at where the money from the plastic bags was going—into the shopkeeper’s till. There was no way that you could tell where the money from the plastic bag went eventually or how the shopkeeper paid it. There was a little box on the counter where you put the money for the plastic bag, but the shopkeeper took the money and put it in the till. That was my experience in Wales. When I went back home to England, I had a good look around for these plastic bags that the Welsh had been tossing around on the seashore, in the streets and everywhere else—supposedly. In one month, I found one plastic bag blowing around in a car park. That was the only sign I had that plastic bags were being thrown around.

I think the whole idea is nonsense. It is the customer who is paying again, and paying twice. The shopkeeper has already paid for the plastic bag and covered that in the cost that he is charging for whatever you are buying. You are paying twice, and the shopkeeper is getting back the money that he has already paid for the plastic bag. Everybody should be happy but the customer should never be happy about being charged for plastic bags.

4.30 pm

Viscount Ridley (Con): My Lords, I want to make a couple of quick points and press a couple of questions similar to ones that have already been made. What we are talking about is known in economics as a Pigovian tax. I know this is not a tax but Pigovian taxes are intended to discourage activity. The one thing economists say about them is that they should be as technology-neutral, as transparent and as even as possible, otherwise they simply push down something that pops up somewhere else. I worry that we are talking about dealing with what is a very small part of the amount of plastic litter that ends up in the countryside. The point has been made that there is an awful lot of litter on roadsides, particularly at this time of year, and relatively little of it consists of supermarket plastic bags. I have heard the figure of 1%, although I do not know if that is right. Is it not possible to come up with something much more neutral about plastic technology generally across the board, to see whether we can discourage it without picking on this one bag?

I find it very hard to believe that the savings in littering and CO2 will be in the region of £780 million— I think that was the number I heard. This is only a relatively small part of the litter that is around. I cannot believe that 10 minutes less spent picking up litter on the side of the road because there are no plastic bags there will add up to £780 million. On the CO2 point, I echo what the right reverend Prelate the Bishop of Chester said. It is not at all clear that the alternatives will produce less CO2—unless we all use the equivalent of the right reverend Prelate’s bag and I

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am not sure that everybody will. We know that more energy often goes into making paper bags by the time that transport and everything else is taken into account, whether or not, as my noble friend Lord Holmes said, that paper bag gets reused. We also heard from my noble friend Lord Lindsay that oxydegradable plastic bags will have an impact on the recycling chain. Can we make absolutely sure that, when we quote figures for the amount of carbon dioxide that will be saved by this measure, they are honest and properly audited? One hears some claptrap in this area and it would be nice to be sure that the figures are right.

The hypothecation of taxes—that is, when a tax automatically goes to one use rather than just into the Treasury—is something that the Treasury has always resisted. I know that this is not a tax—it is a charge—but none the less it has been hypothecated to certain good causes. On the whole, that is quite a good idea, as long as the customer is allowed to direct where it goes. I hope that that becomes a slightly more general point across government.

Lord Whitty (Lab): My Lords, I suspect the Minister was hoping for full approval for this government initiative. I am gratified that the Government have finally got around to it. I have been campaigning on this front for at least 15 years, so I am glad that, 13 years after the Republic of Ireland, and then following the devolved Administrations within the UK, we have at last reached this position. To continue the scriptural allusions of my noble friend Lord Dubs, there is always much joy in heaven for a sinner who repenteth, and we should all appreciate that. Nevertheless, we could have had a much clearer policy announced today—one that would have been better understood by the public. I was struck by the point made by the noble Lord, Lord Holmes, that it is people who litter,not bags. That is absolutely true. However, as the noble Viscount, Lord Ridley, said, the whole point of this tax is effectively to change behaviour. It is not a tax; it is a levy.

My noble friend Lord Anderson referred to the experience in Wales. I happened to be in Tesco in Dundee on Sunday with a young lad. I would not say that he had great green credentials nor that he was always affected by prices, but he had already—this is relatively new in Scotland—changed his behaviour and brought a bag with him. That is the point. Yes, in the end, it is people who create litter and, by using these plastic bags, not only cause unnecessary carbon emissions but bring desecration to our countryside, wildlife, marine life, beaches and many of our city centres. I am glad that my noble friend Lady Golding found only one plastic bag in her car park, but I must say that that is not the general experience in either urban or rural car parks, or in other open spaces. It has been reported that some 2,000 of them can be found on every square kilometre of beach. That is atrocious from the aesthetic as well as the environmental and economic point of view.

I welcome the principle, but it has been unnecessarily curtailed, and in such a way that it does not do what it alleges it intends to do. The big exemption is for retailers with fewer than 250 employees, which exempts quite large retailers and represents around a third of all retail outlets. These exemptions do not exist in the

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devolved Administrations, but the exemption for very small retailers from completing the reporting mechanisms—the real red tape and administrative burden—is set at 10 employees. That seems to be a sensible approach. The exemption should be from the reporting and administrative burden, not from the requirement to impose the charge.

The exemption makes a big difference to the figures in the Government’s own impact assessment. The net present value of this over 10 years, according to the impact assessment set out on page 7 of the Government’s report and as indicated by the Minister, is £782 million. However, it would rise to more than £1 billion if all retailers were included. The Government’s position would be understandable if the retailers themselves were strongly pressing for this exemption, but I am sure that other noble Lords have seen the representations from a number of organisations that represent retail outlets, all of whom are saying, “This is daft and will actually impose a burden on retailers that will put them at a competitive disadvantage in certain respects”.

The British Retail Consortium has said that it is unfair to put smaller retailers in a position where they have to choose whether to charge. There are doubts about having an inconsistent position across the UK. The Association of Convenience Stores has said that some 60% of its members support a single-use carrier bag levy being applied, and in Wales, where it has actually happened, more than 80% of convenience stores support it. The association would strongly support its own membership being covered by this in England as well as in Wales, Scotland and Northern Ireland. The British Independent Retailers Association, which is the voice of the independent retailer and is often critical of the red tape of government regulations, has said that this should cover businesses of all sizes and that the only exemption should be on the administrative burden, to which I have referred. The Government do not have the support of those who would allegedly benefit from the substantial exemption this order provides for.

There are other exemptions or potential exemptions which can also be queried. The noble Earl, Lord Lindsay, has spelt out comprehensively why the issue of oxo-biodegradable bags is not worthy of being considered as an exemption because of their knock-on effect on waste management and the reusability of plastics in general. Others have queried whether other sorts of bags that are being exempted should have that exemption. The big issue I refer to in that respect is: why should non-reused paper bags be excluded when they themselves have a very high carbon content and are a significant part of the litter around our towns and countryside?

Given, therefore, that there is now a general acceptance of this approach, and that the alleged beneficiaries of the exemptions do not seem to be in favour of the Government’s position, why do the Government persist in doing this? Why, in particular, do they do so when the rest of the United Kingdom does not provide for those exemptions, or most of them, and when we may well be faced with a European directive at some point, which will probably not have those exemptions either?

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As I say, we should give at least two cheers for the Government for coming forward with this at last. Nevertheless, it is a pity that they have botched it a bit, and I hope that maybe they will fairly rapidly rethink this, and that, even if we adopt this statutory instrument today or when it is considered in the Chamber, they will come back and say, “Actually, these exemptions are pretty much a nonsense. Let’s make it straightforward so that everybody can understand it, and it will have the effect on everybody, whether they are a customer of a small or large business, whether they have a plastic bag or a paper bag, and whether they are in the country or the centre of our towns”. I hope that the Minister will take that at least as partial support, but some rethinking would be appropriate in his department.

Lord De Mauley: My Lords, I thank all noble Lords for their comments, but in particular I thank those noble Lords who have given at least the partial support that the noble Lord, Lord Whitty, offered. I will see how many of noble Lords’ questions and comments I can address, bearing in mind that our process may shortly be interrupted. However, I will see how far I can get.

The noble Lord, Lord Anderson of Swansea, asked why there had been a delay in getting to where we have. I know that I will not satisfy him entirely, and I suspect that he may have heard me say this before. However, I will say again that we carefully considered the situation and looked at the effect of the scheme in Wales to enable us to design what we considered to be the most appropriate scheme in England. As he knows, we first used voluntary industry initiatives to reduce bags, which proved successful up to a point. The other point it is worth making is that we needed to work with retailers to give them time to prepare. I know that I am not satisfying him entirely, but he will allow me to make that point.

He also asked what the purpose of an end date to the legislation is. It is standard practice from the perspective of Better Regulation to include a sunset date. It gives the Government of the day the opportunity to review the legislation to decide whether it is fit for purpose, and indeed to amend it if they wish to do so. Seven years is standard practice in that regard.

The noble Lord raised the exclusion of SMEs, as did a number of noble Lords. I am aware that some SMEs wish to be included within the scheme, but we have chosen to exempt small and medium-sized businesses from the charge to reduce the administrative burden on start-up and growing businesses at a time when we are supporting new growth in our economy. It is important to remember that the large majority of single-use plastic bags are distributed by the large retailers, and the seven major supermarkets gave out more than 7 billion of those bags in 2013. Small and medium-sized businesses are able to charge on a voluntary basis if they wish, and we have been told about some that already charge voluntarily and are generating significant financial benefits from a reduction in the number of bags they supply. I thoroughly encourage that. There is a requirement in the order for the system to be reviewed within five years, and the scope of the review will be set by the Secretary of State at the time,

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but I am confident that the SME exemption will be one element of the policy that will be considered as part of that review.

The noble Lord, Lord Whitty, asked a related question. The impact assessment also states that there is an overall net benefit to society when SMEs are excluded from the scheme. The Government have therefore chosen to exempt them from the plastic bag charge to avoid placing an administrative burden on them at a time when, as I said, we are supporting growth in the economy.

4.45 pm

My noble friend Lord Lindsay suggested that the process was rushed. The details of the charging scheme were subject to a call for evidence, which was widely publicised, and we received 185 responses to the questions. The majority of the respondents supported the introduction of a charge on plastic bags. The summary of responses was published in June. In parallel, we received just over 2,000 emails on the broader shape of the charge, predominantly as part of NGO campaigns. We also used the evidence provided to the EAC and its report as an additional source of evidence in the development of the scheme. As well as ongoing engagement with retailers, the plastics industry and NGOs, we have held workshops with the British Retail Consortium and its members, and made some changes to the draft order, based on their feedback. We have also engaged with the Local Government Association.

My noble friend Lord Lindsay also asked: why would we proceed with an exemption for biodegradable bags when this might harm the recycling industry? We recognise the concerns regarding the separation of biodegradable bags from the waste stream. We seek to develop a standard that will take these needs into account. We have in hand research under the Small Business Research Initiative, including research into separation methods. My noble friend Lord Holmes asked about the same thing. We are keenly aware that we need to assess the impact on the recycling sector before introducing an exemption for biodegradable bags. We are looking to develop standards for a biodegradable bag that can be detected in the recycling stream.

My noble friend Lord Holmes and the noble Lord, Lord Whitty, asked about charging for paper bags. Plastic bags are prolifically distributed, take longer to degrade in the natural environment, can harm wildlife and are extremely visible when littered in our towns, parks and the countryside. Paper bags make up less than 0.1% of carrier bags distributed by major supermarkets and can biodegrade naturally over time in the open air.

My noble friend Lord Holmes asked where the revenue from the charge will go. How the proceeds from the charge are spent by retailers is a matter for retailers. The Government do not have the legal power to force retailers to use the proceeds in a particular way. However, we would expect them to donate the proceeds from the charge to good causes, after deducting reasonable costs. Many retailers have already confirmed to us that they will do this, and we will require them to

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report on the number of bags charged for and how they have used the proceeds. This information will be made public.

The right reverend Prelate the Bishop of Chester asked about the exemptions in the order and whether they were the same as in other UK countries. My noble friend Lord Holmes asked a similar question. We looked carefully at the Welsh scheme but decided to put forward a scheme that is better suited to the local circumstances in England. We have therefore opted to exempt SMEs and paper bags, unlike in Wales and Scotland, and believe that it is better not to impose administrative burdens on SMEs. Paper bags are also not so widely used by the big supermarkets.

My noble friend Lord Ridley evidenced some scepticism over the figure of £780 million in the impact assessment. We have drafted a full impact assessment, which is available on the government website. It shows the expected impacts of the charge on consumers, businesses and others affected by it. Using the Government’s standard procedures for these things, the total net impact of the scheme over 10 years is calculated to be a positive benefit of more than £780 million. That figure includes savings from reduced costs associated with littering and carbon dioxide-equivalent emissions.

The noble Lord, Lord Dubs, asked about a bag of oranges. I can tell him that bags used solely to carry unwrapped food are exempt from the charge.

My noble friend Lord Holmes and the noble Lord, Lord Whitty, asked how this fits with EU law and whether one can exclude one type of bag over another. In fact, our scheme fits very well and is compatible with EU law. Indeed, there is a current EU proposal to take action specifically on plastic bags. I hope I have addressed most if not all of noble Lords’ questions. If I have not, I shall of course scrutinise Hansard and write to them.

The Lord Bishop of Chester: My Lords, will the Minister confirm for the record that biodegradable bags degrade into carbon dioxide from their carbon content?

Lord De Mauley: Yes, I am quite sure that the right reverend Prelate’s chemistry is still current in that regard.

Lord Dubs: Perhaps I may ask a couple of questions. One is on unwrapped fruit. If one goes shopping, one normally buys a lot of things, including, say, four oranges. That means the shopping will be automatically exempt from the charge. That seems to be an inconsistency and, to my mind, not all that sensible. My other question is about publicity for the scheme. Surely one needs to encourage supermarkets to have publicity at the point of sale and wider so that people know what they are about. That will encourage people to take reusable bags.

Lord De Mauley: My Lords, my experience when buying oranges in the same way as the noble Lord, Lord Dubs, is that supermarkets tend to offer a very

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light bag specifically for that purpose. We are talking about a very light bag, not one into which he could put the whole of the rest of his bottles and other heavy items. I hope I made that as clear as I can. He also asked about publicity and I entirely agree with him. We very much hope that retailers will do as he suggests.

Lord Dubs: I wonder whether we could all go shopping together because the noble Lord talked about a different world from the one that I inhabit when I do the shopping. It does not seem like that. Those little bags are still plastic.

Lord De Mauley: The noble Lord makes an almost irresistible offer.

Motion agreed.

4.53 pm

Sitting suspended for a Division in the House.

Public Bodies (Abolition of the Advisory Committees on Pesticides) Order 2015

Public Bodies (Abolition of the Advisory Committees on Pesticides) Order 201517th Report from the Joint Committee on Statutory Instruments21st Report from the Secondary Legislation Scrutiny Committee

Motion to Consider

5.03 pm

Moved by Lord De Mauley

That the Grand Committee do consider the Public Bodies (Abolition of the Advisory Committees on Pesticides) Order 2015

Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, 21st Report from the Secondary Legislation Scrutiny Committee

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con): My Lords, this is an order to be made under the Public Bodies Act 2011. As detailed in the explanatory document accompanying it, it delivers one of the outcomes of the Government’s programme of reform for public bodies. The order will abolish the Advisory Committee on Pesticides and the equivalent body for Northern Ireland as statutory non-departmental public bodies. The Government will then establish a new expert scientific committee.

I wish to make it absolutely clear that this is not an attempt on the Government’s part to stem the flow of impartial and independent scientific advice on pesticides—in fact, quite the reverse. We are very clear that the Advisory Committee on Pesticides has several strong features that must continue. These include: expertise, independence, impartiality, transparency, a direct line to Ministers, and the ability to initiate its own lines of inquiry. We will retain these qualities, but we see an opportunity to make improvements. I firmly believe that there will be benefits from the successor committee operating in a different and more flexible way, while of course retaining its independence.

We need new arrangements to reflect wider changes in the regulatory landscape for pesticides since the Advisory Committee on Pesticides was set up nearly 30 years ago. We need to establish a broader, more

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strategic and proactive role for the successor committee while meeting the continuing need for independent expert scientific advice in this area.

Over recent years, Defra has taken steps to improve its management of the wide range of scientific advice and evidence that underpins its work. As an expert scientific committee, the successor body to the Advisory Committee on Pesticides will work in a more co-ordinated and peer-reviewed environment. This is overseen by our chief scientific adviser and science advisory council. They do not interfere in the work of experts but provide valuable co-ordination, challenge and support.

We have consulted widely, as required by the Public Bodies Act, on the future of the Advisory Committee on Pesticides. As we have reported, there was clear support for our proposals. We also have the full support of other UK departments and the devolved Administrations. We have secured the required clearance from the devolved legislatures for the order. I believe we have gained this support because we acknowledge that these other parties have a strong interest in the future arrangements. We have worked closely with them and with the committee itself to draft the terms of reference for the new expert scientific committee. The input of the committee members is particularly important because they will transfer to the successor body.

The draft terms of reference have been discussed at two meetings of the committee and small but important adjustments have been made. These changes have satisfied members that the draft clearly sets out a shared vision of the independence of the committee, its right to initiate work and its right to communicate directly with Ministers. This text has now been put to departments for final agreement.

The Secondary Legislation Scrutiny Committee report on the order highlighted several issues to be captured in the terms of reference. These included addressing the comments by the Advisory Committee on Pesticides in the earlier consultation about independence and proactivity. It also mentioned the importance of the Principles of Scientific Advice to Government and the Code of Practice for Scientific Advisory Committees. The report also called for the establishment of escalation routes to ensure that advice from expert scientific committees can be submitted directly to Ministers, as appropriate.

In flagging those points, the Secondary Legislation Scrutiny Committee nevertheless concluded that the Government have demonstrated that the draft order serves the purpose of improving the exercise of public functions as set out in the 2011 Act, in line with the considerations contained in it. The committee was consequently content to clear the order within the 40-day affirmative procedure.

I am glad to be able to confirm that the issues raised by the scrutiny committee are all carefully and fully addressed in the draft terms of reference for the successor body. I can also confirm, as outlined earlier, that the members of the current Advisory Committee on Pesticides and all the relevant departments have been closely involved in this work. The existing Advisory Committee on Pesticides has provided real value over a number of years and the Government are determined to carry

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over its strengths to the new body. However, the new structure will be more flexible and efficient. I commend the draft order to the Committee.

Lord Whitty (Lab): My Lords, I thank the Minister for spelling out the content of this order. Clearly, with the passage of the Public Bodies Bill—four years ago now—the authority to abolish this committee, provided the Government followed the appropriate procedure, has been there.

In Committee on the Public Bodies Bill, I queried the wisdom of abolishing this committee, and my noble friend Lady Quin queried it on Report. The significance of that for those who are not all that familiar with the history of Defra is that my noble friend Lady Quin was the last MAFF Minister to have responsibility for pesticides and I was the first Defra Minister to have responsibility for pesticides. We relied very heavily on the objectivity of the statutory committee, as well as the operations of the pesticides department—PSD—within Defra, because there are always some very difficult, if not controversial, issues arising about pesticides.

The difficulties and controversy have, if anything, increased in recent years. A number of bans at European level have been contested by the industry and some others in crop protection. There has recently been a serious disagreement between the Government and our European colleagues on neonicotinoids. There are always concerns for wildlife and, in particular, the bee population, the effects of various pesticides on them and therefore on their ability to fertilise a whole range of cultivated and wild plant life.

Within what is a no doubt objective and highly scientific area, there are quite often serious disagreements between experts. One of my main memories of my time as a Minister in this area was one huge row where—I will not go into the details—somebody was appointed to the committee whom the crop protection industry was not particularly keen on. It was always important to ensure a balance on the committee, with a range of people. Of course, that is quite difficult for government appointments. Almost everybody with a scientific background in this area, whether at university or in industry, has at some point in their career been employed or had their research sponsored by companies within the industry. It is therefore very important that transparency, accountability, independence—from industry as well as from government—and balance are clear in the advice that the Government receive.

Actually, the non-departmental public body requirements help to ensure that. My concern about the abolition of the committee was that we might lose that balance. The Government have gone through the correct procedures to ensure that there is understanding of the new way of carrying things out. I appreciate that and have every faith in the Government being very diligent in ensuring that that balance and independence are still there. They put it within a wider context where, effectively, this is an expert committee reporting to the science advisory council, which oversees the whole of Defra’s scientific work. That makes sense to a degree, provided that that is well resourced and that the expert committees covering specialist areas maintain the balance and independence I referred to.

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I accept the Government’s good intentions within this area but they have to recognise that it is one where, publicly, media-wise and in the scientific community, controversy can jump out at Ministers who are without great expectation or, frankly, much knowledge of the balance of understanding on the scientific argument. That means the Government must be able to defend whatever future, more flexible arrangements are put in place. The Government refer to flexibility of advice. That should not be too ad hoc or Ministers would be open to the accusation that they have chosen the advice from those people most likely to favour their or the industry’s position. That would be unfortunate in an area where a degree of objectivity has generally been respected over the years.

Pesticides used in our agriculture and horticulture have an important effect on the countryside, wildlife, bystanders, rural communities and the productivity and economic structure of our agricultural sector, so this is an important issue. I hope that the new arrangements work as well as the old ones. I dug out the latest annual report. It is clear from even the summary of the activity—where there were 12 important authorisations of pesticides, some more authorisations of equipment and some serious discussions about the regulatory regime of pesticides in that very year—that that intensity is unlikely to diminish.

5.15 pm

I appreciate the idea of having the overall science advisory council in place with the expert committees supporting it. I hope that the overall activity of Defra science will not be reduced—I was a little alarmed this very morning when I heard a media story about the effects of the cutbacks at Kew Gardens. Defra and MAFF have always had an important scientific role. Defra is important not only in the regulatory sense but in making sure that the evidence is properly financed and resourced in this area as in others. I am therefore taking quite a lot on trust in the proposition to abolish this committee, because, as the documentation logically states, we cannot set up a new committee until we have abolished the old one, so we do not know quite what the new committee or ad hoc committee will look like.

I hope that the Government will ensure that the new committee maintains the same high standards and recognises that Ministers and civil servants will need objective and independent advice, and that there is a substantial public interest that goes beyond the esoteric aspects of quite complicated science. With those remarks and those cautions, I welcome the Minister’s presentation and do not propose to oppose the order.

Lord De Mauley: My Lords, I thank the noble Lord, Lord Whitty. I agree with him about the complexity of the issues that arise. He said that the intensity of activity is unlikely to diminish and I am sure he is right. I agree with him, too, that objectivity is crucial and I accept much, if not all, of what he said. We absolutely respect the need for that objectivity, for independence and for the transparency, accountability and balance that he referred to. I further agree with him that the effect of the Public Bodies Act should be to ensure that these qualities are safeguarded, but,

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more than that, there is a strong will across government, both at ministerial level and—as has been strongly impressed on me—within the Civil Service and within Defra, to ensure that they are.

The noble Lord wondered whether there was a danger that scientific expertise might reduce and referred specifically to Kew. On Kew, we have seen in the press all the bad news that the Science and Technology Committee chose to air. If he was to review the detailed evidence that the committee heard, he would read the evidence from the Chief Scientist at Kew, who has completely rewritten its science strategy so that it is much more focused on Defra’s business, to help us achieve what we want to do, and on the good that can be done for the country’s biology and botany and so on. I think that the noble Lord would be hugely impressed with what they are doing at Kew, which reflects what we are trying to do elsewhere with our science.

The maintenance and even improvement, where possible, of our scientific advice are a top priority for me. I am grateful to the noble Lord for his words and I hope that the Committee will approve the order.

Motion agreed.

Human Transplantation (Wales) Act 2013 (Consequential Provision) Order 2015

Human Transplantation (Wales) Act 2013 (Consequential Provision) Order 201521st Report from the Joint Committee on Statutory Instruments25th Report from the Secondary Legislation Scrutiny Committee

Motion to Consider

5.20 pm

Moved by Baroness Randerson

That the Grand Committee do consider the Human Transplantation (Wales) Act 2013 (Consequential Provision) Order 2015

Relevant documents: 21st Report from the Joint Committee on Statutory Instruments, 25th Report from the Secondary Legislation Scrutiny Committee

The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD): My Lords, the order was laid before this House on 21 January 2015 and is made under Section 150 of the Government of Wales Act 2006, which allows for amendments to be made to primary and secondary legislation in consequence of provisions made by an Assembly Act. The order is made as a consequence of the Welsh Government’s Human Transplantation (Wales) Act 2013, which was passed by the National Assembly for Wales on 2 July 2013. I shall refer to this as the 2013 Act.

The 2013 Act changed the way in which consent for the purposes of transplantation is to be given for the donation of organs and tissue in Wales. From 1 December 2015, after death, a person’s consent will be deemed to have been given in most cases, unless they had expressed a wish for or against donation. The notion of “appropriate consent” from the Human Tissue Act 2004, which I shall refer to as the 2004 Act, is therefore replaced by two concepts in Wales: “express consent” and “deemed consent”.

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The order makes provision to amend the 2004 Act to allow for organs and tissue donated in Wales under the deemed consent regime of the 2013 Act to be used in transplantation procedures undertaken in England and Northern Ireland. It will also ensure that a person appointed to act as a representative for the deceased, under either the 2013 Act or the 2004 Act, will be recognised whether the transplantation activity takes places in Wales, England or Northern Ireland. Finally, the order also amends the Quality and Safety of Organs Intended for Transplantation Regulations 2012, to make reference to the deemed and express forms of consent that will soon take place in Wales.

In preparing the order, the Wales Office has worked closely with the Department of Health as well as the Welsh Government. We are all agreed that the provisions in this order are necessary to ensure that the new Welsh organ donation regime interacts with the existing regime in other parts of the UK. The order is therefore important to the UK. Without the order, when the deemed consent system comes into force in Wales at the end of this year, it would not be possible to use organs, tissue and cells donated under deemed consent in Wales for the benefit of patients in England and Northern Ireland. The order does not extend to Scotland. The Scottish Government have confirmed that no amendments are required to Scottish legislation for organs, tissue and cells taken under the deemed consent regime of the 2013 Act to be transplanted in Scotland. Deemed consent is not being introduced in England or Northern Ireland as a result of this order.

The order demonstrates the UK Government’s continued commitment to work with the Welsh Government in order to make the devolution settlement work. I hope noble Lords will agree that the order is a sensible use of the powers in the Government of Wales Act 2006 and that the practical result is something to be welcomed. I commend the order to the Committee.

Baroness Finlay of Llandaff (CB): My Lords, I am most grateful to the Minister for the way that she succinctly introduced this important order.

I must declare an interest as president of the BMA. Since 1999, it has been BMA policy that we should move to what is often called an opt-out or deemed consent process. Indeed, I was also part of the move to create the opportunity for preferential donation to a relative in the event of there being a family member in need of an organ when there was a tragedy within that family. I understand from NHS Blood and Transplant that that is now being used approximately three or four times a year and actually working very well. My other interest is that I tried to introduce a Bill for a single kidney deemed consent, which did not get anywhere but did, I think, push the process further down the road.

The order is obviously important. We know that, every day in the UK, three people die waiting for a donated organ. The change under the 2013 Act should hopefully change the situation in Wales. But of course there is concern that Wales may become, if you like, a net donor of organs to the rest of the UK. My questions relate to that possibility.

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First, what steps are the Government taking to increase the number of donors in England? Secondly, are the Government planning to review the Human Tissue Act 2004? Given that we now have these developments in the legislation in Wales, are the Government willing to facilitate an informed public debate about opt-out in England?

My other concern relates specifically to the cost, which will be borne by Wales. For the 2013 Act in Wales to work well, it will increase pressure on intensive care beds and it has been predicted that there will be a need to increase intensive care provision as a result of pushing up the number of donors and holding patients while the processes are gone through. That cost will be borne by NHS Wales. Is that increased cost going to be considered by NHS England and reimbursed in some way to NHS Wales? The cost-saving of somebody receiving an organ for transplant will be a cost-saving to NHS England, not NHS Wales. We know that there are significant cost-savings, quite apart from quality of life and life expectancy, if there is a successful transplant. I am grateful to the Minister for having met me and discussed this previously and understand that the cost of restructuring the donor register will be shared between England and Wales. But that is a one-off cost and will be quite small, whereas the relative cost to Wales for organs may be much higher and ongoing over many years, until such time as England and Northern Ireland follow suit.

Can the Minister also confirm that there will be no adverse effect on the use of organs donated in England, Northern Ireland or Scotland for patients in Wales if there is a very good match? Will the fact that we will have a different consent procedure, which will allow organs to go from Wales, also allow organs to come into Wales? That will become particularly important in paediatrics, where the size of the organ is important, as well as the tissue match of the organ.

Finally, last week I was privileged to host the signing of a memorandum of understanding between NHSBT and the MOHAN Foundation from India. The MOHAN Foundation has been working to push up the consent rate when families are approached and has done it very successfully. It has consent rates consistently over 60%, whereas in the black and minority ethnic community, particularly the Asian community—which has a very high demand for organs because of damage from diabetes; there are a lot of Asians on the transplant register awaiting transplant—the number of organs donated is remarkably low and at best hits 40% at times of agreement; in many areas it is much lower than that. Will the lessons that have been learnt over recruitment be supported and actively rolled out in a campaign aimed at those communities in England and Northern Ireland, but particularly in England, where the majority of those communities are, to make sure that the consent rate within those communities, where the genetic match would be much better, does go up, at least to equal the consent rate in the rest of England?

5.30 pm

Baroness Morgan of Ely (Lab): My Lords, I thank the Minister for outlining the order. The Welsh Government have for a long time rightly been concerned

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about the number of people who have been critically ill and died while waiting for a suitable organ to be donated.

The UK as a whole has not had a great record in the past in terms of organ donors, and despite a huge push by the Organ Donation Taskforce to increase significantly the number of donors, the UK continues to have one of the highest family refusal rates in Europe. After detailed research and investigation, the Welsh Government decided to change the law in Wales, as the Minister outlined, so that the public were deemed to have given their consent to use their organs unless they had opted out of the system. Obviously, there are exceptions to this and these are outlined in detail in the Human Transplantation (Wales) Act.

The rights and wrongs of whether it is a good idea to have this system of presumed consent are not under scrutiny today, although I agree with the noble Baroness, Lady Finlay, that it is worth looking at how successful this is going to be in Wales. Of course, this is a matter on which the Assembly has decided to legislate. My understanding is that the need for this SI is due to the fact that Wales is anxious—correctly, in our view—to ensure that there will continue to be a cross-border flow of organs and tissues across the UK. The change proposed means that organs from Wales will continue to be able to be used in England and Northern Ireland. It is worth noting, as the Minister pointed out, that the law does not need to be changed in relation to Scotland.

I would like to underline some of the points made by the noble Baroness, Lady Finlay. If Wales is introducing this, presumably we are proportionately going to be doing more heavy lifting in terms of organ donation than the rest of the country. That is good—we in Wales are helped out by the rest of the country very often—but as the noble Baroness, Lady Finlay, underlined, there is a cost to this and it would be useful to know whether there will be an additional contribution from the NHS in England. Has any negotiation been undertaken with NHS England in terms of additional help as a result of that cost? We know that Wales could do with the help in financing the NHS.

The Labour Party is in agreement with this order and we give it our support.

Baroness Randerson: My Lords, I thank the noble Baronesses, Lady Finlay and Lady Morgan, for their comments and for their support for this order. I will do my best to answer them in detail.

The noble Baroness, Lady Finlay, asked about preferential donation. As she knows, with her considerable expertise and experience, organs are donated unconditionally and allocated to sick patients on the basis of their clinical need. You cannot name an individual or individuals to whom you would like your organs donated when you join the NHS donor register, but a requested allocation could be possible at the time of your death if there was someone close to you who was waiting for an organ transplant. The noble Baroness made reference to a potential increase in the number of donors as a result of the deemed consent system. On the basis of statistical probability, approximately 15 extra donors a year are likely to

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become available. Donors tend to donate several organs, so it is estimated that this would help between 45 and 60 recipients.

There has been a considerable increase in the efficiency and co-ordination of organ donation and transplants in recent years, partly because of the efforts that the Government have made to increase the number of organs available. There is a commitment to ensure that organs continue to flow across the border; indeed, the whole purpose of this order is to ensure that that continues. I know that the Welsh Government are committed to that, as are the UK Government.

The noble Baroness, Lady Finlay, asked what England is doing to increase the number of donors. Since 2008 and up to April last year, there was a 60% increase in the number of organs donated in the UK and a 47% increase in transplant rates. That is significant progress, although the UK Government firmly acknowledge that there is more to be done. A new, seven-year UK-wide organ donation and transplantation strategy was jointly published by the four UK Health Ministers and NHS Blood and Transplant in July 2013. I hope that this reassures noble Lords that the Government are committed to working closely with the three devolved Governments and to increasing consent rates.

The UK continues to support work to increase donation and transplantation rates further, particularly promoting collaborative work among organisations to raise awareness of donation in the black, Asian and minor ethnic populations. The noble Baroness made reference to that. I was interested and pleased to see in the Commons Lobby yesterday a stall from Transplant 2020, with literature and an expert clinician available to encourage Members of this House and of the other place to sign up but basically to discuss the issues associated with organ transplantation. The literature given to me referred to the need for greatly improved rates of organ donation among BME communities.

The noble Baroness asked whether the UK Government would move in any way towards a similar scheme, or discuss that. I think we would all acknowledge that the debate in England is at a much earlier stage than the debate in Wales, which has gone on for a significant number of years and has been subject to very wide consultation, but I can commit to the fact that the UK Government will look closely at the impact on donor numbers of the work that Wales has been undertaking.

The noble Baronesses, Lady Finlay and Lady Morgan, referred to costs. The increase in the number of beds required will, I am told, be minimal, and the Act will not increase the need for critical care beds. The increase in the number of donors will pay for itself over 10 years because the organ donation system is efficient and reduces hugely the costs of care for people suffering from organ failure. It will take some years for that to work through, but it is important to bear in mind that organ donation reduces the costs not only of healthcare but of social care in many cases, as well as the impact on families and the individuals concerned.

The noble Baronesses asked what England will do to reimburse Wales for the increased costs of intensive care beds. Each UK hospital receives up to £1,000 for every donor or potential donor in order to help with

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intensive care costs. Discussions are already under way across the four countries on the best way in which to fund the increase in the number of donors and transplants.

I hope that with those comments I have satisfactorily addressed the concerns of both noble Baronesses, and I join them in the concerns that they have raised about the need to, by whatever method, ensure that we increase the number of donors and particularly concentrate on the two issues that they outlined—first, the high family refusal rates, which have proved to be extremely difficult to deal with, and, secondly, the low donation rates among BME communities. I commend the order to the Committee.

Motion agreed.

Protection of Freedoms Act 2012 (Northern Ireland) (Biometric data) Order 2015

Protection of Freedoms Act 2012 (Northern Ireland) (Biometric data) Order 201522nd Report from the Joint Committee on Statutory Instruments

Motion to Consider

5.45 pm

Moved by Baroness Randerson

That the Grand Committee do consider the Protection of Freedoms Act 2012 (Northern Ireland) (Biometric data) Order 2015

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments

The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD): My Lords, I beg to move that the Committee should consider the draft Protection of Freedoms Act 2012 (Northern Ireland) (Biometric data) Order 2015, laid before the House on 29 January 2015. The main purpose of this order is to provide the Police Service of Northern Ireland with the ability to continue to use biometric data, including DNA, footprints and fingerprints, in the interests of national security and for the purposes of a terrorist investigation. The order also makes a transitional provision which permits the Chief Constable of the PSNI additional time to consider whether material held by the PSNI should be retained for an extended period for the purposes of national security, and makes some amendments to the Terrorism Act 2000 and to the Protection of Freedoms Act 2012. I shall refer to this as the 2012 Act.

The 2012 Act made new provision for the retention, destruction and use of biometric data taken in the course of a criminal investigation in England and Wales. The new provisions, which are now in force in England and Wales, require the destruction of biometric data of those individuals who have not been convicted of a criminal offence, subject to a number of statutory exemptions. Such new provisions were necessary in the wake of the judgment of the European Court of Human Rights in the case of S and Marper v the United Kingdom. In that case, the court ruled that the provisions in Part 5 of the Police and Criminal Evidence

4 Mar 2015 : Column GC76

Act 1984, which at that time permitted the “blanket and indiscriminate” retention of biometric data from individuals who had not been convicted of a criminal offence, violated Article 8 of the European Convention on Human Rights. The equivalent provisions relating to Northern Ireland, contained in the Police and Criminal Evidence (Northern Ireland) Order 1989, were thus similarly considered to violate Article 8.

The 2012 Act did not provide for an equivalent new biometric retention framework for the police in Northern Ireland. While the Northern Ireland Department of Justice sought a legislative consent Motion from the Assembly for the inclusion of Northern Ireland-specific clauses within the 2012 Act, this was not granted. This was largely because the majority of the provisions to be made had by then fallen into the devolved space following the devolution of policing and justice to the Northern Ireland Assembly in April 2010. The devolved Administration therefore took forward a separate but broadly similar provision to that contained in the 2012 Act. This was done under the cover of the Criminal Justice Act (Northern Ireland) 2013. I shall refer to this as the 2013 Act. It was recognised, however, that the Northern Ireland Assembly did not have the legislative competence to make provision in the excepted field, in particular to permit the biometric data obtained under the PACE NI order to continue to be used for national security purposes and in terrorist investigations.

An order-making power was therefore inserted into Part 7 of Schedule 1 to the 2012 Act to allow the Government to make excepted provision regarding biometric data in Northern Ireland. This power was consequential on the devolved Administration making similar provision to that contained in the 2012 Act by the end of 2012. In the event, it was the following year before the devolved Administration’s Bill containing the equivalent provision received Royal Assent, in the 2013 Act. It was therefore necessary to amend the order-making power in the 2012 Act via primary legislation. That was done in the Northern Ireland (Miscellaneous Provisions) Act 2014, which received Royal Assent in March 2014.

An amendment to the 2013 Act is currently being taken through the NI Assembly via a separate Bill. The devolved Administration advises that this amendment is necessary to prevent the inadvertent requirement to destroy a large volume of material which was intended to be capable of retention. It is expected that that Bill will receive Royal Assent by this summer, following which the provisions in the 2013 Act will be commenced. This order will be brought into force on the same date that the provisions of the 2013 Act are commenced. That is in order to avoid any gap arising in the powers of the PSNI to retain biometric data for national security purposes or in terrorist investigations.

Following the approach for England and Wales in the 2012 Act, paragraph 6 of Schedule 1 to the 2012 Act provides for the making of a “national security determination” by the chief constable of the PSNI in respect of the biometric data of a given individual. That allows the material to be retained for up to two additional years for the purposes of national security. The order provides for a transitional period during which the new destruction regime will not take effect

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in respect of material identified as requiring consideration as to whether it should continue to be held for national security purposes. That is to allow the chief constable of the PSNI sufficient time to consider whether to make a national security determination in respect of such material. The provision permitting the chief constable of the PSNI to make the national security determination is not yet in force, but will be commenced by order later this year on the date identified for the commencement of the new destruction regime in Northern Ireland.

The Biometrics Commissioner, appointed under Section 20 of the 2012 Act, will have an important oversight function in that connection. The commissioner will have the power to review every national security determination made by the chief constable, and will be empowered to order the destruction of any material made the subject of such a determination if he concludes that it is not necessary for the material to be held on the grounds of national security.

Finally, the order makes two minor consequential amendments. First, paragraph 15 of Schedule 8 to the Terrorism Act 2000 is amended to ensure that the correct definition of the term “sample” is adopted in relation to the use of police powers under the Act. Secondly, the order removes some remaining references in Schedule 1 to the 2012 Act to samples and profiles which are redundant in consequence of the 2013 Act.

Part 7 of Schedule 1 to the 2012 Act provides my right honourable friend the Secretary of State for Northern Ireland with an important order-making power. With this order she duly exercises that power to ensure that the PSNI remains able properly to investigate terrorist offences and make use of biometric data in the interests of national security. Moreover, the provisions of the order are a vital part of the new legislative framework, which is necessary to secure the Government’s compliance with our obligations under the European convention. I commend the order to the Committee.

Lord Empey (UUP): My Lords, the complicated nature of the order that the Minister just outlined to us illustrates that it operates at the twilight zone between the excepted and the devolved matters. Of course, the fact that both are going at a different pace makes matters even more complicated. Nevertheless, we understand that this flows directly from an ECHR ruling and we must deal with that.

Can the Minister assure us on one point? Many members of the public frequently become concerned if there is a risk that material that could subsequently find its way into the evidential process will be disposed of prematurely. We now know of cases emerging many years after offences were committed. We see that on a regular basis and, as the noble Baroness knows, the Historical Enquiries Team is about to commence more work—just as it has previously operated, going back over very difficult terrorist cases. Of course, sadly, in the current circumstances in the modern world, many risks to national security come from all sorts of directions, and not ones that we have been used to traditionally in this part of the world. Therefore, there is quite a significant issue here. I would like the Minister to assure the Committee that the risks posed to successful prosecutions will not be significant and that there are

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sufficient powers available to ensure that appropriate material is retained in the reasonable prospect that further evidence would justify a prosecution.

The Explanatory Memorandum also raises a number of issues that affect the Police Service of Northern Ireland, not least of which is cost. I refer to paragraph 10, on impact. It says that there is,

“a cost to the PSNI in configuring computer systems for their use in managing the new regime and in staff training”.

Are sufficient resources available to the PSNI to undertake this work? The Minister will know that the PSNI has faced a very difficult budget settlement. We understand the reasons for that but the work that must be undertaken by the PSNI is, far from reducing, at a very significantly high level. That is not simply because of the ongoing terrorism threat. There are other threats out there, for example through smugglers and illicit trade.

I am pleased that at long last, after a two and a half year delay, the National Crime Agency will function in Northern Ireland. However, there is clearly a cost and resource issue here. It is not only cost. Part of the problem that the PSNI faces is that it has so many people working on historical cases and also an ongoing terrorist threat level that the Chief Constable described as “severe”—it is certainly substantial. He will have to review every piece of evidence and that is a massive piece of work. If officers’ time is taken up with that, with training and so on, there is a resource implication. Can the Minister assure the Committee that the effectiveness of the PSNI is not going to be diminished as a result of the substantial workload that is going to be forced upon it?

I hope that the Minister will address one other matter. Can she explain in a little more detail paragraph 12 of the Explanatory Memorandum covering the monitoring and review process:

“An independent Biometrics Commissioner has been appointed to keep under review the retention and use by the police of DNA samples”?

Given the fact that the role of the commissioner is currently limited to the oversight of the making of national security determinations, can the Minister elaborate on how this process is going to operate under the new circumstances?

In summary, the necessity for this has been more or less forced upon us as a result of the court ruling, and of course even though the legislative framework is different in England and Wales from Northern Ireland, the case has the same effect as it would have under the different legislation that exists in Northern Ireland. Those are the issues and I would appreciate it if the noble Baroness would address them in her response.

6 pm

Lord McAvoy (Lab): My Lords, I thank the Minister for her exposition of the order and the staff in her office for keeping me informed. This is another sensible step, albeit that it may be forced on us, in the devolution process that was first started by a Labour Government. Anything that arms the PSNI and the forces of law and order with the necessary requirements to combat potential acts of terrorism can only be welcomed. I want to make it clear that the Official Opposition welcome this addition to the PSNI’s powers. This

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order does not deal with national security outwith the legislative context of the Northern Ireland Assembly, but it does bring the PSNI into line with other forces. The ability to use evidence that is gathered is particularly useful.

I echo the comments made by the noble Lord, Lord Empey, about the potential costs and use of resources. We all know that the budget of the PSNI is under considerable strain, especially given the circumstances in north Belfast. There are reports that the efforts of some of the historical inquiry teams have had to be reduced or abandoned because of a stated lack of resources. I assure the Minister that we will be paying particular attention to this because any weakening in the resources available to the PSNI makes it less able to tackle potential acts or planned acts of terrorism. However, despite the problems around the need for this order, we welcome and support it.

Baroness Randerson: I thank noble Lords for their comments and their support in principle for the order. The noble Lord, Lord Empey, asked whether there was a risk that biometric data that could still lead to the conviction of those who have not yet been brought to justice for their crimes might be destroyed. The purpose of the order is to allow the PSNI to continue to use biometric data in the interests of national security or for the purposes of a terrorist investigation. It does not impose any destruction requirements on the PSNI.

The Criminal Justice Act (Northern Ireland) 2013, which was of course debated and approved by the Assembly, provides for the exemptions to the legal requirement to destroy an individual’s biometric data that have been introduced in response to the Marper judgment. During the Marper case, the European Court of Human Rights rejected the argument that the indefinite retention of biometric data was justified for the purposes of preventing crime. The court ruled that the blanket and indefinite retention policy of the UK did not strike the appropriate balance between public interest and the rights of the individual. The noble Lord will know that we are bound by that judgment.

Both the noble Lord, Lord Empey, and the noble Lord, Lord McAvoy, referred very rightly to the issue of resources. As the purpose of the order is to allow the PSNI to continue to use biometric data in the interests of national security or for the purposes of a terrorist investigation, no resource burden is imposed by virtue of the order that is before the Committee. However, the implementation of the new legislative regime for the retention of biometric data, provided for by the Criminal Justice Act (Northern Ireland) 2013, has of course created a significant resource burden, as is noted in the Explanatory Memorandum, which noble Lords have referred to. It has been necessary to allocate resource to reviewing all biometric data currently held by the PSNI, the configuration of IT for their use and staff training. This is an inevitable consequence of the ruling of the European Court.

The noble Lord, Lord Empey, asked about the mechanisms to be put in place to ensure the oversight of police retention of biometric data, which is not

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subject to the destruction requirements. The independent Biometrics Commissioner, to which the noble Lord referred, will have the power to review the making of every national security determination, including those made by the chief constable of the PSNI. If the commissioner is not satisfied that the retention of any material is necessary on national security grounds, he can order the material to be destroyed. The Biometrics Commissioner’s first annual report was laid before Parliament in November 2014. In his report, the commissioner reveals that relatively few national security determinations relating to England and Wales, where his powers currently lie, have been received by his office to date.

I hope that those responses are helpful to noble Lords. I commend the order to the Committee.

Lord Empey: Will the Minister clarify one point for me? Is she saying that, if the chief constable designates a “sample” as one that is essential, in his or her view, for anti-terrorism or national security purposes, that protects the sample from the ruling of the court, subject to the oversight of the commissioner? Is that effectively where we are?

Baroness Randerson: The short answer is yes; that is the process. The chief constable makes the decision and it is reviewed by the commission.

Motion agreed.

Scotland Act 1998 (Modification of Schedule 5) Order 2015

Scotland Act 1998 (Modification of Schedule 5) Order 201522nd Report from the Joint Committee on Statutory Instruments

Motion to Consider

6.10 pm

Moved by Lord Wallace of Tankerness

That the Grand Committee do consider the Scotland Act 1998 (Modification of Schedule 5) Order 2015

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments

The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD): My Lords, this draft order will devolve competence to the Scottish Parliament so that it can enact legislation about certain safety measures in relation to all dedicated school transport in Scotland. I will give the Committee a brief explanation of how the draft order achieves this and why it is felt to be an appropriate and sensible use of the powers under the Scotland Act 1998.

The draft order is made under Section 30(2) of the Scotland Act 1998. Section 30(2) provides a mechanism whereby Schedule 4 or Schedule 5 to that Act can be modified by an Order in Council, subject to the agreement of both the UK and Scottish Parliaments. I am sure the noble Lord, Lord McAvoy, will recall that we debated a similar order on the Floor of the House last week.

The draft order will amend Part 2 of Schedule 5 to the Scotland Act 1998 to make an exception to the road transport reservation in Section E1 of Schedule 5 to that Act. The amendment will devolve power to the Scottish Parliament to legislate in relation to the regulation

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of the description of motor vehicles, by reference to their construction and equipment, which are used to transport pupils and students in Scotland to and from places where they receive education or training, such as schools and colleges.

There is an ongoing petition before the Scottish Parliament’s Public Petitions Committee that calls for provision to be made to ensure that every school bus in Scotland is installed with three-point seatbelts for every school child passenger and to ensure that proper regard is given to the safety needs of the children. Although it is the Scottish Government’s current position that the specific terms of dedicated school bus contracts are matters for individual local authorities, in an approach consistent with the petition I have just mentioned, Scottish Ministers have indicated that they intend to introduce legislation with the aim of ensuring that it becomes a requirement for seatbelts to be installed on all dedicated school transport in Scotland. This order will confer legislative competence on the Scottish Parliament to allow them to do so.

Once again, the order demonstrates the Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I hope the Committee will agree that this order is a reasonable use of the powers in the Scotland Act 1998. The draft order has passed Committee stage in the Scottish Parliament and we expect that Parliament to conclude its scrutiny by 19 March 2015. The other place is expected to consider this draft order in two weeks’ time. I commend the order to the Committee and I beg to move.

Lord McAvoy (Lab): My Lords, I thank the Minister and his staff for making sure that I was kept informed. He mentioned last week’s debate on the Floor of the House. Perhaps in future he should consider a joint invitation to the noble Lord, Lord Forsyth of Drumlean, to come along and liven up the proceedings. That would probably put the Minister in the position that he would expect—and get—the Labour Party to ride to his rescue, as we did last week.

The Minister is absolutely right: this is continuing support for the devolution settlement, which I am glad the current Government are continuing. He has outlined it. There is no need to go over it again. We support the order.

Lord Wallace of Tankerness: My Lords, as ever, I am grateful for the noble Lord’s support.

Motion agreed.

Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015

Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 201520th Report from the Joint Committee on Statutory Instruments

Motion to Consider

6.14 pm

Moved by Lord Wallace of Tankerness

That the Grand Committee do consider the Courts Reform (Scotland) Act 2014 (Consequential Provisions and Modifications) Order 2015.

Relevant document: 20th Report from the Joint Committee on Statutory Instruments

4 Mar 2015 : Column GC82

The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD): My Lords, the main purpose of the order is to give full effect to the Courts Reform (Scotland) Act 2014, which I shall refer to as the 2014 Act, and to make provision where the Scottish Parliament does not have the legislative competence to do so.

The order is made under Section 104 of the Scotland Act 1998 and makes necessary or expedient legislative changes in consequence of the 2014 Act. It is quite technical in nature. It maintains the status quo and ensures that courts in Scotland retain their specific powers in relation to devolved and reserved matters.

To provide noble Lords with some background, the 2014 Act implements the majority of the recommendations of the Scottish civil courts review of 2009, which was an independent review chaired by Lord Gill. As the Committee may know, Lord Gill was at the time of the review the Lord Justice Clerk of Scotland and is now the current Lord President of the Court of Session.

The 2014 Act is intended to make the civil justice system in Scotland more efficient, with most of that Act focusing on a restructure of the civil courts system in Scotland. The 2014 Act makes some additional provisions relating to criminal matters.

From 1 April this year, the functions of the Scottish Tribunals Service will be transferred to the Scottish Court Service as a result of provision within the 2014 Act, and that Act will rename the Scottish Court Service the Scottish Courts and Tribunals Service. It is intended that this transfer will protect the independence of the administration of devolved tribunals by separating it from the Scottish Government. It will also create a joint independent administration for both courts and tribunals, with one board chaired by the Lord President as head of the judiciary for both courts and tribunals.

The Pensions Appeal Tribunal for Scotland, or PATS, was established under the Schedule to the Pensions Appeal Tribunals Act 1943. While pensions are a reserved matter, PATS is currently administered by the Scottish Tribunals Service, since the non-statutory function of providing administrative support was executively devolved to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999. The order before us transfers the administration of PATS from Scottish Ministers to the Scottish Courts and Tribunals Service.

Section 2 of the 2014 Act updates existing powers to alter sheriffdoms and sheriff court districts in Sections 2(1) and 3(2) of the Sheriff Courts (Scotland) Act 1971. The order consolidates and re-enacts the compensation provisions in those sections and permits the Scottish Courts and Tribunals Service to pay compensation for loss of office or loss or diminution of emoluments in consequence of an order made under Section 2 of the 2014 Act.

Currently, the Court of Session may make rules to regulate procedure and fees in both the Court of Session and the sheriff court, and it is important that the Court of Session still has this ability both for reserved matters and those which are devolved. The principal powers under which these rules are made are contained within the Court of Session Act 1988 and

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the Sheriff Courts (Scotland) Act 1971. As powers which were conferred on the court by pre-devolution statutes, these rule-making powers cover both reserved and devolved matters. This means that the court has been able to make special rules governing practice and procedure in relation to reserved areas of the law such as immigration, financial services and terrorism.

The court’s rule-making powers are now to be contained in the 2014 Act, but, because of the current legislative competence arrangements, that Act can provide the rule-making power only for matters which are devolved. Accordingly, the order provides that these powers may be used to make provision which relates to a reserved matter, or which modifies the law on reserved matters; that is, provision modifying existing special rules relating to reserved matters. This preserves the pre-existing ability of the court to regulate practice and procedure regardless of whether the subject matter of the proceedings in question is devolved or reserved.

While the 2014 Act provides for the Lord President of the Court of Session to direct certain categories of sheriff court case as suitable to be dealt with by specialist judiciary, and for the Lord President or the sheriff principal of a sheriffdom to be able to designate particular members of the sheriff court judiciary as specialists in one or more areas, the order provides for these powers to be exercisable in relation to categories of case which relate to reserved matters.

Similarly, while the 2014 Act inserts new sections into the Court of Session Act 1988 to include the application of a second appeals test applying to applications for review of decisions of the Upper Tribunal for Scotland, the order extends these provisions to apply to the UK Upper Tribunal.

The 2014 Act provides that civil proceedings which a sheriff has competence to deal with, and in which orders of value are sought of an aggregate value which does not exceed £100,000, may be brought only in the sheriff court. However, this order prevents the 2014 Act applying to proceedings for the winding-up of a company, with the consequence that such proceedings will remain competent in the Court of Session regardless of any order for value sought.

Finally, the order makes consequential modifications to existing UK legislation. For example, the House of Commons Disqualification Act 1975 and the Northern Ireland Assembly Disqualification Act 1975 are each amended to reflect the abolition of the office of stipendiary magistrate and the introduction of new judicial offices of summary sheriff and part-time summary sheriff in the 2014 Act.

A further example of the consequential modifications made by the order is that, as the 2014 Act has repealed several pieces of legislation in so far as Scots law is concerned, it replicates these repeals for the rest of the UK, thus tidying up the UK statute book. A specific example of this is the repeal of the Judicial Offices (Salaries, etc.) Act 1952 by the 2014 Act. This order replicates those repeals for the rest of the UK.

I consider this order to be a sensible use of the powers under the Scotland Act 1998 and it once again demonstrates this Government’s continued commitment

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to working with the Scottish Government to ensure that the devolution settlement works. I therefore commend the order to the Committee. I beg to move.

Lord McAvoy (Lab): Again, I place on the record my thanks to the noble and learned Lord and his staff for keeping me fully informed. It is with trepidation that I set foot in a Room when an order mentioning emoluments and compensation for legal people is being discussed. I am not that brave and prepared to tread that ground too much.

The noble and learned Lord says that is sensible devolution. It is a steady process that is working well and, on behalf of the Opposition, I fully endorse the order.

Motion agreed.

Independent Schools: Variety and Diversity

Question for Short Debate

6.22 pm

Asked by Lord Lexden

To ask Her Majesty’s Government what assessment they have made of the variety and diversity of schools within the independent education sector.

Lord Lexden (Con): My Lords, I begin by declaring my interests as president of both the Independent Schools Association and of the Council for Independent Education.

The association provides a range of excellent services to its expanding membership—up from 300 thriving, mainly smaller schools, averaging under 400 pupils a few years ago to some 360 today. The council brings together 18 independent colleges, helping them to enhance their already high standards, which will be on display in your Lordships’ House next week when I present annual awards to the most successful students drawn from all manner of backgrounds within this country and overseas. They look to the Government for one thing above all—the removal of unnecessary obstacles to student visas. Many independent schools feel equally strongly about that.

There are a number of other highly regarded professional organisations working on behalf of the 1,250 schools which have chosen to join them on terms that include regular inspection and published reports under Ofsted’s watchful oversight. I encountered an array of those well-established bodies during my time as general secretary of the Independent Schools Council between 1997 and 2004. With misplaced radicalism at the beginning of my tenure, I urged them to coalesce so they could speak with a united voice—not least to the Government of Mr Blair. I had no success. The organisations that represent independent schools reflect the innate diversity and variety, which are the hallmarks of the schools themselves, where 80% of the 625,000 pupils in the independent sector are educated. Yet those long-standing characteristics go almost entirely unremarked, and it is my object in this debate to underline their importance.

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I am grateful to those noble Lords who will be taking part. This is a short debate. I regard it as opening salvo, and I hope to have other opportunities to carry forward and enlarge the discussion of issues relating to independent schools. It is in the national interest to do this.

I am sorry that my noble friend Lord Nash, who has taken a deep and constructive interest in these issues, cannot reply to this debate on behalf of the Government because of duties in Birmingham. I am very grateful to my noble friend Lady Williams of Trafford for speaking in his stead.

My starting point is the extraordinary collection of misconceptions that dominate discussion of independent schools—in the media, in politics and over the dinner tables of the chattering classes. It is a long-standing national habit to view all independent schools as aloof, expensive and exclusive, barred to almost everyone in the land. The impression is now gaining ground that the cost has become so great—around £30,000 a year is the widely quoted figure—that soon only Russian oligarchs will be able to afford them. This takes to extreme lengths a misapprehension that has a cause as simple as it is difficult to dispel: a stubborn determination to regard all independent schools, of which there are more than 2,500 in total, as having been created in the image of a handful of famous public schools, which for some 150 years have been accused of occupying central and malign roles in creating and sustaining deep social division in our country. The famous picture taken of the Eton-Harrow cricket match in 1937 of two Harrovians in top hats being stared at derisively by three urchins is still used to illustrate innumerable articles about independent schools, despite being totally out of date and wholly unrepresentative.

I will not in this debate enter into the tempting historical argument as to whether the grave charge laid against the major public schools is true but I emphasise it as the factor that has done most to create the wholly misleading impression that is so rife today. An imaginary uniformity is attributed to independent schools. The variety and diversity that are their actual attributes have been lost to sight. Consider the question of fees—understandably, everybody does. It is perfectly true that places in boarding schools can be costly. Superb facilities are provided in return. But boarders represent only one in eight pupils. Far from being typical, very expensive schools are the exception. In some day schools in the Independent Schools Association, fees are at a level similar to the average cost of a place in the maintained sector, which makes many heads yearn for the introduction of an open-access scheme to their schools at every level of ability.

More than half of independent schools are not academically selective. Every year, means-tested bursaries increase. Over a third of pupils now receive help with their fees. Every year more pupils from ethnic minority families begin their education at independent schools. A higher proportion of ethnic minority pupils are in independent schools in England than in maintained schools. Many teachers seek to reach out as fully as possible to the communities around them. I think of a remarkable little school outside Lichfield where I presented prizes last summer. Maple Hayes Hall School has a

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superb track record of helping children with learning difficulties. The chairman of the local council described it last week as a jewel in the district’s crown, yet the local education authorities go to considerable lengths to try to prevent parents of statemented children from sending them to Maple Hayes, precipitating lengthy and expensive cases before tribunals. Such behaviour, inimical to the interests of the children of this country, really should end.

The independent sector has in this generation committed itself fully to partnership with state schools. The further development of partnership is the theme of the manifesto that the Independent Schools Council has published for the coming election. A proper understanding of what independent schools have to offer by way of full partnership can be achieved only by recognising and relishing the diversity and variety that exists within the sector. How can this be done? One way would be through a careful survey of members of the Independent Schools Association by an impartial education expert or an education journalist or two. The idea was enthusiastically received by many of the heads of the schools when I put it to them last week.

Emails have poured in, giving a foretaste of what those carrying out such a survey might expect. I will give a few examples.

At Gosfield School in Essex,

“we halved our prep school fees three years ago and provide substantial bursary support to families in the local community”.

At Babington House School in Chislehurst,

“we accept pupils from a variety of backgrounds, some of whom have very significant and particular needs. We are not a rich school and have no large endowments, but nevertheless we provide a number of means-tested bursaries”.

At Moon Hall College in Reigate,

“virtually all our pupils come to us having failed to achieve their potential in a mainstream school despite additional support. Many are still virtually illiterate when they arrive but they leave us full of confidence, having taken their GCSEs and been admitted to sixth-form colleges”.

At Claires Court School in Maidenhead, academic selection is totally rejected as,

“harmful to social mobility and the long term development of all children”.

At Thorpe Hall School in Southend,

“operating in a highly selective 11+ area with four huge grammar schools, we educate many pupils who did not get through that filter but would not thrive in a large comprehensive”.

At Brockwood Park School, in Bramdean,

“young people from diverse nations and cultures share the adventure of growing and learning together, and will be less likely as adults to engage in discriminatory prejudice”.

At Tring Park School for the Performing Arts,

“awards in the region of £650,000 (10 per cent of turnover) are made each year for drama and musical theatre scholarships and bursaries”.

At Thames Christian College,

“the vast majority of pupils come from families who would never have thought they would ever send their children to a private school; around 40 per cent of our pupils do not pay the full fees”.

I have been sent many more such snapshots of the variety and diversity of life in independent schools today. I have not even mentioned the wide range of activities undertaken by schools in their local communities

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which show up as risible the patronising comment made by the head of Ofsted last year that they represent no more than “crumbs from the table”.

Finally, I will quote the outstanding head of the James Allen’s Girls School in south London,

“an inner-city school where 50 home languages are spoken and we currently have 126 students who hold means-tested bursaries. We regularly send girls from under-privileged backgrounds and other under-represented groups such as Afro-Caribbean heritage to top universities”,

where, she adds, poignantly,

“they are at once officially classified as coming from a privileged independent school background”.

No one knows more about partnership with state schools than this most successful head, who has taken part in a large variety of collaborative schemes in recent years. She concludes, wisely, that,

“both sectors have a wide range of schools within them and neither one has the exclusive right to excellence”.

To that, I hope we will all say, “Amen”.

6.33 pm

Lord Hodgson of Astley Abbotts (Con): My Lords, I thank my noble friend for having given us the chance to debate this very important topic this afternoon and for the impressive way he has laid out the case for independent schools. Before I go any further, I need to make the Committee aware that I have in the past acted as a governor of one of the seven great schools that was the subject of the Clarendon Commission in the 1860s. Incidentally, that commission was set up because of allegations of bullying among pupils—what we would now call child abuse; plus ça change, plus c’est la même chose—and which led to the Public Schools Act 1868.

Secondly, and more relevantly, I was the official reviewer appointed by the Government for the Charities Act 2006, which of course brought me into direct contact with the issue of public benefit. My work on that review showed me the very deep roots the education system has in the charity sector. The oldest charity is the King’s School, Canterbury, founded in 597. I do not think it has a continuous record, but it can trace a thread through from 597 to the present day.

Up until the Middle Ages, the church—through the monasteries—helped the sick, looked after the disabled and provided education. The dissolution of the monasteries—Wolf Hall and all that—meant that private endeavour had to step in. If you look at the foundation dates of a number of our great schools, you will see that several were founded between 1530 and 1580. That trend was accentuated because during the later Elizabethan era there was substantial social unrest caused by inflation and bad harvests, which resulted in groups of poor people roaming the country. Noble Lords may recall the nursery rhyme that begins,

“Hark, hark, the dogs do bark. The beggars are coming to town”.

That comes from Elizabethan times and led to the great Statute of Charitable Uses 1601 on which our charity law is based. It had three purposes which were presumed to be charitable—the promotion of religion, the relief of poverty and the advancement

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of education. That presumption remained in place for more than four centuries until it was abolished by the 2006 Act.

My noble friend has laid out an impressive case on behalf of the independent sector and I do not wish to repeat his arguments. However, I would argue that you are unlikely to strengthen the weak by weakening the strong; the independent sector has proved to be very strong and should therefore be encouraged. One of the greatest achievements of this Government has been to begin to raise standards in the state sector. That is the way we should be proceeding, so that the independent sector begins to feel the hot breath of competition. This will help all sectors and all our students from every background in every part of the country.

The independent sector is facing a couple of challenges. Independent schools are particularly concerned with the issues of variety and diversity which we are discussing. The first is what I call the facilities arms race, the wish for every independent school to have as far as possible the very best facilities, not just academic but sporting and artistic—music rooms, art schools and so on. This is a worthy aim, but it is an aim that comes at some cost and with implications for fees. Schools often say that the capital costs of such facilities are paid for by appeals to alumni and old members of the school, but this often overlooks the maintenance costs of the additional staff you have to hire to run the school and the inevitable need to maintain the buildings after they have been constructed. There is some concern that if this arms race continues, then gradually and imperceptibly fee levels will increase, which cannot be helpful or satisfactory to the sector. As my noble friend has said, we want to make sure that the sector remains open to as wide a proportion of our population as possible and we need to be mindful of the dangers and problems of what happens if we do not remember the squeezed middle.

There is a second aspect to this. The point was made in the briefing to us about the contribution made to the financial state of the country by individual schools from recruitment overseas. That is a fair point, but it is a point which can be taken too far. During my review, I met a very wise headmaster who said to me that, where you had 5% of students from overseas, that helped the school, but when it went above 10% it began to dissipate the school’s values and the school began to lose a sense of social cohesion. This challenge is particularly acute away from honeyed London and the south-east. During my review I travelled to schools in other parts of the country. The independent schools in London and the south-east have a wonderfully affluent and diverse pool of potential pupils to draw from. This is less the case when one moves west and particularly north where geographical distance begins to play a more important role and where schools are, in many cases, less well endowed or well supported than their south-eastern counterparts.

My final point concerns charitable status. In my review of the Charities Act it became very clear what huge advantages charitable status provided. Of course it concerns taxation and taxation privileges but, above all, it is reputational. The charity brand remains very

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strong in the public mind. One of the principal conclusions of my review was that charitable status is a privilege, not a right, and privilege carries with it responsibilities. Some of these were referred to by my noble friend—to reach out to the wider community, to help educational establishments which are less fortunate or less well equipped, and to be humble enough to learn lessons from schools outside the independent sector and from society as a whole. These will be the continuing challenges for the independent sector and there can be no room for self-congratulation. Independent schools have been clever and flexible in reinventing themselves many times over the centuries. I hope and trust that that flexibility remains part of their DNA.

6.40 pm

Lord Storey (LD): My Lords, I thank my noble friend Lord Lexden for securing this debate and for the variety and diversity of his opening speech. I want to begin my contribution by reminding the Committee that independent schools teach only 7% of the country’s school pupils, but the Debrett’s 500 list reveals that more than 40% of the country’s most influential figures went to fee-paying schools. Indeed, half of all noble Lords in the House have been privately educated, and more than 70% of our senior judges are former pupils of independent schools. The figures point out that independent schools are disproportionately dominant in their influence on today’s society.

If we are to discuss diversity within independent schools, we need to examine what has changed where independent schools and social mobility are concerned. I remember that parents on low incomes could receive valuable scholarships, but now the focus is mostly on bursaries that seek to help families on lower incomes afford fees on a sliding scale. This represents greater access to independent schools. At this moment in time, over a third of independent school pupils are on these bursaries. It is safe to say that such schools cannot end social mobility problems alone—as I have pointed out, they teach only 7% of the country’s school pupils—but I can only hope that if such monetary assistance continues, it is done in order to increase social mobility rather than to filter out gifted children from the maintained sector.

In my home town of Liverpool, there was an independent school called Liverpool College. The school principal decided to convert it into an academy, thus receiving public funding. The reason was that many parents wanted their children to attend but were unable to afford the fees. The benefits were reaped almost immediately. Pupils are admitted through random allocation, with some preference given to those who live within two miles of the school. Some students continue to board, but they pay less than 50% of what is charged by standard public schools, and their education is free. The demographics of the school are starting to shift; more pupils are eligible for the pupil premium, and more have been in care or come from ethnic minorities. The reason I brought up this example is that it highlights how the “greatness” of independent schools that traditionalists tend to emphasise can also be achieved in a state-funded school. Being able to expand the curriculum is what counts when seeking to

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enjoy a fully rounded education, and this need not be compromised at non fee-paying schools, as Liverpool College demonstrates. It is true that schools have a lot more freedom when they are independent, but the standard of provision, imaginative teaching and the quality of teaching is not different between the sectors.

The next issue to which I wish to turn is a large and contentious one—partnerships between independent schools and state schools. Some 90% of ISC schools are in mutually beneficial partnerships with state schools and local communities, but I feel that this figure should really be 100%. However, enforcing such partnerships may cause legal and logistical problems. It may not be wise to take away schools’ charitable status because treating schools as businesses would isolate them from society and work against our goal of partnership and collaboration. These partnerships can be encouraged, but they must be organic. Many London independent schools organise summer schools for primary schoolchildren in their local areas, including the loaning out of sports facilities and swimming pools, and teachers sharing resources and ideas to improve the quality of teaching. The list is truly endless. I am very glad that the DfE has agreed to fund 18 new partnerships and their start-up costs. This exchange of information allows the pupils to benefit from cross-sector wisdom and encourages a community spirit. Part of the discussion on diversity also invites a mention of transparency. It is no secret that independent schools receive charitable status, which can be considered a euphemism for tax breaks. These partnerships are a method by which private schools can earn that status.

As I mentioned earlier, the exchange of teaching methods is paramount to the quality of teaching, and this leads to my final point—innovation. We should of course note that innovation in schools is the product of a number of different things. Although evidence in this area is scarce, innovation is likely to be driven by evolving continuous professional development among teachers, employing teachers and school leaders from a wide range of backgrounds, guaranteeing flexibility in the curriculum and developing new technologies.

The case for for-profit schools rests on the concept that competition is the best driver of school improvement. The international evidence does not support this claim. The evidence on what works in improving school standards emphasises other factors: the quality of teaching, the need to reduce educational inequalities, and school autonomy—but only when coupled with sufficient accountability. The OECD’s analysis of the PISA results for the past several years has suggested that schools that enjoy greater autonomy in resource allocation tend to do better than those with less autonomy. However, in countries where there are no such accountability measures, the reverse is true.

That innovation would therefore mean that independent schools’ influence on maintained schools would be supplementary to state school education, as opposed to a necessity on which they depend. Therefore, it is not a rethink of any sort of hierarchy that we need, but a rethink of what are the most important tools for improving the diversity and variety of education and those who benefit from it.

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6.46 pm

Lord Black of Brentwood (Con): My Lords, we should all be indebted to my noble friend Lord Lexden for giving us possibly the last opportunity in this Parliament to highlight the vital role of independent schools in the education sector and the contribution they make to civil society. Those of us who have had the good fortune to know him for many years, to have heard his erudite contributions in this House, and indeed to follow him on his remarkable website, know that the issue about which he feels most passionately is Ulster. But a very close second is independent education, a cause for which he has always been a formidable and authoritative champion.

I attended Brentwood School in Essex, where I received a first-class education that has been the foundation of all that I have done since. When I came to this House, one of the reasons I chose the title I did was because of my affection for my old school. I am now honoured to be a governor there, and I declare my interest accordingly. When I joined the school in 1971, it was a direct grant school. My parents could not have afforded to send me there otherwise. Direct grant schools were a very important part of our education system because in so many ways they neatly bridged the gap between the maintained sector and private education. I still believe that the abolition of direct grant status was a terrible act of educational vandalism.

But every cloud has a silver lining and for schools such as Brentwood, which were in effect forced into the private sector, independent status has proved to be of huge importance and value. The reason for that is this: genuine independence from the state and from the taxpayer has been the spur to innovation, and innovation has in turn been the engine of the diversity and variety that are the hallmark of the independent sector today. It is those three attributes that are the secret of success.

Your Lordships should think of it this way: independence means being judged every day on so many things—the standard of teaching, the provision of up-to-date facilities, the level of pastoral care, after-school activities, the quality of engagement with pupils and the effectiveness of communication with parents. Independent schools have to pass all those tests—and many more—every day or they fail. That so many of them are, like Brentwood, highly successful schools shows how effectively they meet these daily demands. As I said just now, crucial to that is the ability to innovate at the same time as preserving the tradition and heritage that are so valued by parents. Experimentation, original thought and the most up-to-date digital technology all sit alongside a respect for institutional history and custom, and a culture of excellence engrained over generations.

In this context, for a school like Brentwood, that means embracing systems such as the “diamond structure”, in which girls and boys are educated in single-gender groups from 11 to 16 and in a fully co-educational context post-16. It means championing a holistic approach to education, placing personal and social development, the importance of music, art, sport and community service alongside academic

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achievement. And it means the ability to offer ground-breaking curriculum alternatives such as the international baccalaureate diploma programme as well as international GCSEs, the rigour of which have underlined the general problem of grade inflation. Indeed, it seems to me that the innovation of the independent sector in championing these alternatives has been one of the spurs to the changes in the examination system that have been a key part of the Government’s education reforms.

As my noble friend Lord Lexden reminded us, schools across the independent sector come in many shapes and sizes, with often radically differing ethos and organisation; but they share in common a great deal. I have already talked about their educational fervour, appreciation of the value of independence and the immediacy of accountability. Another thing they share is a commitment to a diversity of pupils from different backgrounds. More than 28% of pupils at independent schools are from a minority ethnic background, which is 1.5% higher than in the state sector. When I visited my old prep school recently, I was struck by the extraordinary range of languages other than English spoken. I heard in the course of a morning Polish, Romanian, Italian and Spanish—something that brings a rich cultural diversity and global perspective to young minds and outlooks.

Perhaps most vitally, all independent schools have done a huge amount over the years to make entrance to them accessible to anyone who really wants to get there. Direct grant status helped my parents, whose living came only from a shoe shop in Upminster, to get me there. Today, that opportunity comes from a very generous system of bursaries for families who have trouble finding the fees and which has become a hallmark of the sector. These bursaries have been built up by generations of philanthropists and former pupils. For many existing pupils, means-tested bursaries throughout the sector are worth an average of £7,984 per year. More than 5,000 pupils at ISC schools pay no fees at all. I say to my noble friend Lord Storey that he is absolutely right to talk about social mobility. That is one aspect of social mobility in action.

More than a century ago, my grandfather attended Christ’s Hospital—a school with a long and distinguished history of reaching out to families of modest means. Today, it offers more bursaries than any other independent boarding school with just under 80% of its 680 pupils receiving support, and 123 getting full fee remission. Last year, it spent £16 million on means-tested purposes, a staggering sum, showing how seriously it, in common with other independent schools, takes its wider civil obligations and its charitable status.

As well as bursaries to enable greater access to children of all backgrounds, independent schools reach out to the wider community. Some, such as my own school, extend a helping hand to maintained schools wishing to start, for instance, their own combined cadet force. Others offer specialist Oxbridge tuition and assist local authorities to teach subjects in which specialist teachers are in short supply. In all these areas, independent schools are using the variety and diversity—and indeed the excellence—among them to expand diversity and variety within the maintained sector.

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I hope what this excellent debate will achieve is to highlight three things: first, that the independent schools of today are a light-year away from the image many in this House may have had of private schools in the past. As the noble Lord, Lord Hodgson, said, they have reinvented themselves, as they have done many times. They are modern, multicultural, diverse, home to cutting-edge digital technology and learning, and, above all, open to the gifted and ambitious whatever their background. Secondly, they take with the utmost seriousness the responsibilities from their charitable status, both through bursaries and wider community involvement. Thirdly and finally, as a result of their priceless independence from government, they add to the diversity and variety of our education system and, above all, of our society as a whole.

6.53 pm

Lord Lingfield (Con): My Lords, I begin by apologising to my noble friend Lord Lexden, and indeed to your Lordships, for arriving during his opening speech. I was inadvertently detained elsewhere. I thank my noble friend Lord Lexden for giving us this very important debate, and remind your Lordships of my education interests in the register.

Having worked in both private and state schools, I am an admirer—by no means an uncritical admirer—of the independent sector. My noble friend Lord Lexden has in the past pointed out that the majority of its schools bear no resemblance to those distinguished and well known boarding establishments that too often the press seems to imply epitomise the independent sector. The independent sector is extremely diverse and wide in its offering to parents. I want to refer very briefly to one aspect of its education provision, which is very different indeed from those famous schools before-mentioned and provides a superb service with very little fanfare—the independent special schools sector.

Under the previous Government, in the 10 years from 1997, some 9,000 special school places and 145 maintained special schools were lost in the state sector. That was because of a somewhat dogmatic application of the ideology of inclusion, which demanded that most children with special needs could be catered for in mainstream schools. I make no political point here, as all parties seemed to support this view at one time or other following the Warnock report. However, gradually common sense prevailed. Indeed, the noble Baroness, Lady Warnock, herself had many second thoughts. Inclusion can work extremely well for those with certain physical disabilities, but can too often lead to distress and a serious lack of progress in others.

By 2010, however, there was a net increase in the number of special schools as some 220 new independent ones had been founded to fill the gaps created by the closures. Typically, parents of children with particular special needs found that there was little provision for them and would form a small charity to take over the work. This was for most a hugely difficult task, and the parents concerned are much to be praised for their dedication and determination to do the best for their children and the children of others. However, many graduated from the rooms of private houses to find

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proper accommodation as their pupil numbers grew. Persuading local authorities to pay the fees, or some of the fees, was difficult in some areas, but these schools flourished and today are a most important part of SEN provision. Today, there are some 550 of these schools in England, and Section 41 of the Children and Families Act 2014 allows the Secretary of State to publish a list of approved independent and non-maintained special schools and special post-16 institutions.

Department for Education figures show that some £612 million per annum is spent in placing children with SEN in these schools, which is 30% of the special schools placement budget. They vary in size, from the small institutions that I mentioned to large and long-formed charities, such as the wonderful Young Epilepsy’s St Piers School in Lingfield, where I live, which was founded in 1904 and provides 24-hour care every day of the year to children and young people with the most serious disabilities, including acute epilepsy, severe autism spectrum disorder and other associated neurological disorders and difficulties. On its 60-acre site is a farm on which the young people can work, recently supported by a large private donation. There are drama courses, business administration, ICT, media studies and many other classes suitable for these youngsters who gain hugely from being in a structured and caring environment.

The National Association of Independent Schools & Non-maintained Special Schools, to which I pay tribute, has some 220 schools in its membership and has produced a number of very valuable research reports. Its October 2011 study, using what was admittedly a small sample of seven schools, revealed that, for day and part-time boarding, delivery costs were between £7,000 and £17,000 lower annually per pupil than for the equivalent provision in local authority-maintained schools. As I said, this was a small study, and we need better comparative data, but at least it tends to suggest that the taxpayer gets good value for money from the independent special sector.

The extraordinary advances in medicine of the last decades mean that many more children with the most serious multiple disabilities now not only survive birth but can find much contentment in their lives with the proper attention, therapies, medication, supervision and, hugely importantly, appropriate education. The independent sector has risen magnificently to this challenge and is clearly the most valuable adjunct to local authority provision.

7 pm

Baroness Jones of Whitchurch (Lab): My Lords, I am grateful to the noble Lord, Lord Lexden, for tabling this debate and for giving us a chance to reflect on what is happening in the independent education sector and to scrutinise the latest journey that it is embarking upon.

I start with an acknowledgement: the sector has done very well for the parents that pay its sometimes eye-watering fees. Their children are twice as likely to attend a Russell Group university compared to their peers from the state sector and they are five times as likely to attend Oxford or Cambridge, with only one in 100 pupils from the state sector winning a place there.

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The Sutton Trust has identified five elite schools and colleges which have as many Oxbridge entrants as nearly 2,000 state schools and colleges. The advantages do not stop there. Pupils go from that advantage to make up 71% of senior judges, 53% of senior diplomats, 45% of public body chairs, 43% of newspaper columnists, 33% of MPs and, of course, as the noble Lord, Lord Storey, drew to our attention, 50% of your Lordships’ House.

What does that really tell us and where does it get us? At one level, it reaffirms that our education system is still entrenched along old class division lines and that state school children have to struggle that much harder to succeed against the odds, but I am sorry to say that I think that when the noble Lord opened the debate, he was asking the wrong question. It is not a question of how we can add to the variety or diversity of a sector that is by its very nature selective and elite.

7.02 pm

Sitting suspended for a Division in the House.

7.14 pm

Baroness Jones of Whitchurch: Just to recap, the point I was making was that we are debating the wrong question. The challenge is not really about how we can add to the variety or diversity of the independent sector but much more about how we can give every child in this country a first-class education and an equal chance of succeeding in the very fast-changing global market. Noble Lords do not need me to tell them that the world is changing. If we have any chance of remaining a player in it, we must make sure that all our children are equipped with the skills, knowledge and character to compete successfully.

Our view is that we will lose out if we allow the top jobs to be the preserve of young people from a very small pool. The unskilled, low-ambition jobs of the past simply will not be there for those who are excluded. So whether it is a high-quality vocational offering or a comparable academic grounding, it has to be available to all young people regardless of the type of school they attend. This has to be the way of the future and it is a challenge across the entire educational landscape, including the private sector.

What does the independent sector have to do to play a part in addressing this challenge? One answer is that it should develop deep and measurable partnerships with state schools and share its resources and skills so that the benefits can be shared; for example, independent schools’ teaching expertise can be utilised to help disadvantaged state school children into the top- class universities, or by running joint extracurricular programmes with equal access, opening up their sports and arts facilities to joint activities with local schools, and running summer schools and mentoring programmes, thus giving access to their employer networks for careers advice and work experience. They also provide care and innovation in the special school sectors, as

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described so eloquently by the noble Lord, Lord Lingfield. I fully acknowledge that that is a role which independent schools play.

All this could be encapsulated in a new schools partnership standard as proposed by our party against which the independent schools will be measured. To give an added incentive, we would amend the Local Government Act 1988 so that private schools’ business rate relief would become conditional on passing the new standard. Those independent schools that are already involved in these activities have nothing to fear from these changes, while those that have not kept up with the times will find it difficult to justify why they continue to be subsidised by the taxpayer to the tune of some £700 million over the course of a Parliament.

The statistics appear to show that only 3% of independent schools sponsor an academy, only 5% loan teaching staff to state schools, and one-third allow state school pupils to attend lessons on their premises, but I agree with the noble Lord, Lord Lexden, that more transparent and robust independent verification of what is going on in this sector would help us all. However, on this basis it appears that they have a long way to go before they will be able to persuade us that they are involved across the board in true partnerships with the state sector. While I welcome the noble Lord’s commitment to diversity, I would suggest that we need to be much more open about what they are able to offer. If there are to be meaningful partnerships in the future, they need to be based on the recognition of the much bigger challenge of providing a world-class education for every child, which is ultimately in all our interests. On this basis, I am sure that the Minister will agree with much of what I have said, and I look forward to hearing her response.

7.18 pm

Baroness Williams of Trafford (Con): My Lords, I join others in thanking my noble friend Lord Lexden for calling this debate on a very important subject, and other noble Lords for their wide-ranging contributions. I know that my noble friend is a bit disappointed that my noble friend Lord Nash is not here, but I hope that he will be satisfied with my response. I stand here feeling slightly humble because I know that he has a wealth of experience and knowledge of the independent schools sector. As the president of the Independent Schools Association and of the Council for Independent Education, he is already familiar with the proud tradition of the independent sector and the benefits it can bring to thousands of our children, as well as to the communities in which they are situated. I look forward to Parliament hosting his event next week to celebrate the successes of pupils from the smaller independent schools.

I know that this is a topic which is dear to my noble friend’s heart. The diversity of the independent education sector is part of its strength and remains an important part of our educational landscape—as it has been for hundreds of years. The choice the sector brings to parents and children to meet their specific needs and aspirations has to be welcomed. I agree entirely with my noble friend that independent schools make a positive contribution to the life of this country and

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that we should be proud of the world-class education which many of them provide. My noble friend Lord Black also made the very good point that independent schools today look nothing like the stereotype we have of them now and have had in the past.

The number of independent schools in England remains at around 2,400. There is a turnover of about 100 each year. Schools range vastly in size, ethos and provision. The sector includes day schools, boarding schools and special schools for children with special educational needs, which the noble Lord, Lord Lingfield, mentioned. It includes schools with a specific religious ethos, and minority faiths are very well catered for, as my noble friend Lord Black, I think, pointed out. Some of these schools are very small and draw on a local community for their pupils and for their support. Minority ethnic communities are also well represented. Some schools are very well endowed financially, while others seem to get by on a shoestring.

We are also aware that the independent sector is a force for social change. Indeed, most independent schools place great value on community service. I declare an interest as I speak about Manchester Grammar School because my son attended it. It has a very high academic achievement and many of the pupils go on to attend Russell Group universities, yet the school still ensures that pupils are involved in the community that it serves—inner-city Manchester—which includes some of the poorest communities in the country. The activities include paired reading in the local primary school, teaching English as an additional language, recycling schemes, charitable donations, gardening, and work with special schools, which my son got involved with. That all contributes to the sort of inclusive society which we want to see.

MGS also has a huge bursary fund—I think it is around £10 million; I will be corrected if that is wrong but it is certainly substantial—making it very socially diverse and, indeed, ethnically diverse. I think almost 60% of its pupils are from ethnic backgrounds. It has always seemed to me the very epitome of an incredibly cohesive school community. Of course, most schools offer bursaries and more than a fifth of pupils get help with their fees. So in addition to the scholarships available to children with exceptional talents—for example, in music or the arts—many more children benefit from the academic rigour of independent schools because of the financial help they receive.

I will now turn to some of the specific points that noble Lords made. My noble friend Lord Hodgson talked about a facilities arms race that might lead to higher fees. That might be true but surely it has to be a matter for the schools themselves. Of course, if the facilities are better, they might be justified in charging a higher premium but that is for them to make a decision on. My noble friend Lord Storey talked about the 7% of pupils who go to private schools ending up as the high achievers of our society. I think that goes to the heart of this debate. The noble Baroness, Lady Jones, mentioned the very point that my noble friend Lord Hodgson touched upon—that you cannot strengthen the weak by weakening the strong. It is about bringing up the attainment of our state schools as well as promoting what our private schools offer.

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The approach of this Government to reforming the schools system—to give schools greater freedoms around teaching, teacher training and how they are run—has been noticeable over the period of this Government. My noble friend Lord Storey talked about Liverpool College, which used to be a private school and is now an incredibly successful academy. I can point to an example in Manchester: William Hulme’s Grammar School used to be a private school. Since it has become a state school, you could argue that it is a more successful school and it is certainly attracting more pupils.

There have been a lot of contributions about the partnerships with the state sector. The Government are very supportive of these partnerships, as the Secretary of State and my noble friend Lord Nash have made clear. At the recent ISSP seminar they were told in no uncertain terms that, for partnerships to be successful, they should be developed through building relationships of trust and integrity and not be imposed from the centre. However, ISSPs can make a difference. We have recently provided funding for 18 new primary-level partnerships. We have made available a modest amount of funding—less than £200,000—to assist primary schools around the country to improve subject teaching at primary and prep school level, with specific emphasis on subjects such as maths, science and modern foreign languages. There is good evidence that they are making a difference. I will give just one or two examples, because I am aware that time is pressing on.

The King’s College School in Wimbledon works in partnership with 27 state schools. To give a small taste of what this involves, pupils from King’s are given the opportunity to teach lessons such as Latin, music and sport at local primary, secondary and special schools. Sometimes they act as classroom assistants, but in some cases they actually lead the class, of course under the supervision of the King’s staff. The impact on results has been remarkable, with the average number of pupils achieving five A* to C grades at GCSE going up from 49% to just under 67% over a five-year period.

My noble friend Lord Lingfield talked specifically about independent special schools and we recognise how very valuable these are. They often provide specialist care for children with profound needs and include 170 such schools which are dual-registered as children’s homes. Through Section 41 we will be able to approve a number of schools to receive a funding arrangement, as for special academies.

The noble Baroness, Lady Jones, talked about the dominance of the independent sector. I reiterate that this is about bringing standards in state schools up and not bringing standards in the private sector down. It is not a good situation when there is such a disparity of achievement between the public and independent sectors, and the Government are putting their money where their mouth is over funding for educational improvements. We have provided significant additional funding through the pupil premium—almost £1.9 billion in 2013-14, which will increase to £2.5 billion in 2014-15.

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In conclusion, we want all pupils, regardless of the type of school they attend or their background, to achieve the highest quality, world-class education, of which this country is rightly proud. Through our education reforms—more academies and free schools and greater accountability—we are transforming the state system to ensure that every pupil has the opportunity

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to fulfil his or her potential. A final point: we do not have any plans to withdraw charitable status from private schools. I think we have made great inroads in the partnerships between the private and state sectors. I thank all noble Lords for the part they have played in this debate.

Committee adjourned at 7.29 pm.