Lords Sitting of 30 October 2002

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lichfield

Human Trafficking
Lord Hyltonasked Her Majesty's Government:
What point they have reached in preparing legislation to make trafficking in human beings (as defined in the relevant United Nations protocol and other than trafficking for purposes of prostitution) a criminal offence; and what funds they will provide for specialised agencies providing care and protection for victims of trafficking in Britain.
Lord Bassam of Brighton: My Lords, an offence of trafficking for prostitution will be created by the Nationality, Immigration and Asylum Bill. We intend to legislate against trafficking for the purposes of both labour and sexual exploitation as soon as parliamentary time permits, but before July 2004, in line with the recently adopted EU framework decision. We are committed to supporting the victims of trafficking and are currently working with the voluntary sector to establish a comprehensive support network. That will be established on a pilot basis from next year.
Lord Hylton: My Lords, I thank the Minister for that reply, which at least gives us a date to which we can work. However, will the Government study the comparative report on trafficking and victim protection newly published by Anti-Slavery International? Surely they would find it helpful in framing new legislation.
As to funding, does the Minister recognise that two years ago the Home Office acknowledged the need for a budget for this specific issue but nothing has been done? Do the Government accept that this form of modern slavery can be defeated only if its victims are protected and enabled to give evidence so that convictions can be secured?
Lord Bassam of Brighton: My Lords, I welcome the publication of the report to which the noble Lord referred. We shall study it carefully; I am sure that it will he important and help to shape policy in future. We recognise the importance of finding safe, secure places for victims of trafficking. That will no doubt feature as part of the approach to be adopted in the pilots next year. We very much welcome the activity of non-governmental organisations.
The Government have recognised the need to address human trafficking. On prevention, we have provided funding—about £70,000—to raise awareness of the abuses suffered. Funding for remedial action has
190
been given to the Anti-Slavery International project in west Africa, including in Benin. We have also made about £ million available for the International Labour Organisation programme in the Greater Mekong region—parts of Cambodia, China, Laos, Thailand and Vietnam. So we are providing significant funding and recognise the international nature of the problem.
Lord Campbell of Alloway: My Lords, in what way is extant law defective? If it is, exactly what is proposed to remedy it?
Lord Bassam of Brighton: My Lords, as I said in my Answer, we are strengthening the legislative framework by including the offence of trafficking for prostitution in the Nationality, Immigration and Asylum Bill. We are also committed to falling in line with the EU directive by July 2004. That will mean proposing legislation by that time to address some of the other trafficking-for-labour and exploitation issues.
Baroness Williams of Crosby: My Lords, first, perhaps I may pay tribute to the most reverend Primate the Archbishop of Canterbury on his last appearance in the House in that capacity and say how much we look forward to his appearance in a new capacity.
The Minister rightly says that we are working towards the EU directive date of 2004. Are the Government working in the councils of the European Union for careful consideration to be given to trafficking through central and eastern Europe where much of it takes place? Can he assure us that the governments of those countries about to become full members of the European Union are fully aware of the dangers of traffickers, especially from Russia and associated countries, beyond their borders?
Lord Bassam of Brighton: My Lords, we recognise that the problem can only be tackled internationally. That is an important strand of the Government's strategy to deal with it. As I said, a new EU directive recognises the importance of such international action. We must work closely with our colleagues, especially in the accession countries, to tackle what is widely recognised as a terrible problem. I know that your Lordships' House shares our concern.
Baroness Carnegy of Lour: My Lords, are the Government in consultation with the Scottish Executive given that the creation of such an offence would, I think, be devolved to the Scottish Parliament? To ensure that trafficking does not confine itself to one side or other of the Border, it is important that legislation should be passed on both sides. Concerning the Nationality, Immigration and Asylum Bill, I understand that the Scottish Parliament is not yet legislating. It is important that it should catch up. Have the Government any information?
Lord Bassam of Brighton: My Lords, I am sure that colleagues north and south of the Border are working

191
closely on the issue, which clearly affects both parliaments. As the noble Baroness says, we have shared concerns and shared interests.

Rural Payments Agency
2.41 p.m
Baroness Byford: My Lords, I beg leave to ask the name standing on my Order Paper. I am so sorry, my Lords. I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
Whether extra staff or funding have been allocated to the Rural Payments Agency.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, I think that the Animal Health Bill is getting to all of us.
This is the first full financial year of the Rural Payments Agency's operations. The agency is part way through a major rationalisation programme that will in the longer term result in staff reductions. However, to deal with immediate pressures, there will be a short-term increase in temporary staff, taking total numbers from 3,161 last year to 3,314 this year. Consequently, the administration budget will rise from £108 million to £111 million.
Baroness Byford: My Lords, I thank the Minister for that response. My confusion was because I want to take the opportunity on behalf of all those on these Benches to pay tribute to the most reverend Primate the Archbishop of Canterbury. I do so not only for what he has done within the Chamber—his contributions have always been welcome—but for the wider world outside. Someone was muttering at me and I was caught slightly adrift.
I thank the Minister for his Answer. Does he agree that it is unacceptable that his department is still making late payments? Will he confirm that the department pays interest on the late payments and tell us what that cost has been during the past year?
Lord Whitty: My Lords, the department and the agency clearly regret late payments. Some compensation will be paid in respect of those late payments which relate to problems caused by the RPA or by the cattle tracing system. However, as regards last year's late payments which resulted from industrial action, it is not the Government's habit to pay compensation for delays caused by such events outside their control. Therefore, no interest payments will be made on those schemes, which were mainly arable.
Lord Livsey of Talgarth: My Lords, how many beef producers have not yet been paid their beef special premiums when the deadline for payment was 30th June 2002? Will the Minister confirm that many delays
192
have been caused by technical difficulties and procedures of the offices of the British Cattle Movement Service and say what he is going to do about it?
Lord Whitty: My Lords, we are talking about EU money and RPA payouts which amount to nearly £3 billion. In relation to the bovine scheme, it is a requirement of the Commission that we cross-check against our tracing system. That has led to queries on almost 20 per cent of all claims and as a result there has been some delay in payment.
In respect of the bovine payments, 95 per cent have now been paid. Of the cases we have examined, 72 per cent are without a problem. We have looked at the records of 12 per cent and they have been corrected. Seven per cent have rightly been rejected, and some 9 per cent are outstanding. However, the number of cases that can be attributed to some fault or inaccuracy of the RPA or the cattle tracing system is less than 0.1 per cent. In other words, cases involving about 200 animals in the whole system can be put down to internal errors. The remainder have been due to failure to notify or lack of clarity in the notification. Although there is a problem—we acknowledge that and will pay compensation where it is our fault—it amounts to a small proportion of the total.
The Countess of Mar: My Lords, has there ever been a costing of preparing and sending out each cheque to farmers? I ask that question because recently my husband received about five cheques for less than £2 each, all for the same thing. It must cost at least that amount to send them out. Would it not be a good idea if someone considered each case and said, "Look, we can write out one cheque instead of all these little cheques"? It all happened within a period of about 10 days.
Lord Whitty: My Lords, I agree that some rationalisation of the system is desirable. That is one of the matters being addressed by the RPA in examining its systems. On the other hand, each payment must comply with the rules and be made in a form that can be audited. In the new system, which will not be introduced until the end of 2004, we need to combine the ability to audit each claim with a more user-friendly way of delivering the money and requiring the documentation.
Baroness Byford: My Lords, how many payments remain outstanding following the foot and mouth outbreak?
Lord Whitty: My Lords, I am not sure that I can answer that question as it is presented. I have already said that 5 per cent of the bovine payments are still outstanding. The vast majority of those relating to foot and mouth have been paid, except those that are

193
disputed. There are still some disputes outstanding, but in respect of the bovine scheme, which is the main concern, 5 per cent remain outstanding.
Baroness Sharples: My Lords, how much money is involved?
Lord Whitty: My Lords, the total pay-out of the RPA is £2.9 billion. I shall write to the noble Baroness, but I can say that the bovine payments are a substantial part of that amount. As I said, 95 per cent of those have been met for the past financial year. In terms of the breakdown of the scheme, it may be sensible if I write to the noble Baronesses, Lady Byford and Lady Sharples.
Lord Taylor of Blackburn: My Lords, how many cases have been held up because of fraud?
Lord Whitty: My Lords, I do not have those figures. Every case in which fraud is suspected is investigated in detail. The level of fraud is low. However, it is a continuing problem and perhaps one of the reasons for the bureaucracy and the complicated nature of the documentation in the first place.
Earl Ferrers: My Lords, can the noble Lord say whether the cheques for under £2 paid to the noble Countess were for an animal?
Lord Whitty: My Lords, that is a question best addressed to the noble Countess. I would not wish to intervene between her and her spouse's relations with the RPA. I suspect so, but the noble Earl should ask her.

Euro: Economic Tests for UK Entry
2.50 p.m.
Lord Taverne Lord Taverne asked Her Majesty's Government:
When they expect to announce the results of their assessment of the five economic tests for entry into the euro-zone.
Lord McIntosh of Haringey: My Lords, the Government have consistently said that they will complete an assessment of the five economic tests within two years of the start of this Parliament.
Lord Taverne: My Lords, do the Government realise how this matter is becoming more urgent all the time? What is there to add to the thorough analysis carried out last April by the National Institute of Economic and Social Research, which came to the conclusion that the tests have been passed? Will the Government listen and take note of the comments made yesterday by the Secretary of State for Trade and Industry about the damage being caused by delay, as demonstrated by
194
the fact that there has been a dramatic drop in Britain's share of foreign direct investment into the European Union from 52 per cent in 1998 to 24 per cent last year?
Lord McIntosh of Haringey: My Lords, I am interested in the suggestion that the assessment of the five economic tests should be privatised. I have a great deal of respect for the National Institute of Economic and Social Research—it once offered me a job—but the assessment is the responsibility of the Treasury.
As to the comments of the Secretary of State for Trade and Industry yesterday, she is absolutely right to draw attention to the importance of inward investment. That is why it is one of the five tests. The Chancellor of the Exchequer has said that inward investment is the key driver of productivity, growth and overall economic performance. Outside figures show that in 2001 we had a higher share of inward investment than any other member state of the European Union and the second highest in the world.
Lord Renton: My Lords, does the fact that the Government will require two years to make an assessment of this matter mean that they will not commit themselves until after the next general election?
Lord McIntosh of Haringey: My Lords, neither I nor the Government have said that it will require two years. I said that they will complete the assessment within two years of the start of this Parliament. Therefore the second part of the noble Lord's question does not apply.
Lord Barnett: My Lords, leaving aside the first of the five tests, that of sustainable economic convergence—which is virtually unanswerable—does my noble friend agree that the second test requiring flexibility is the most important? Does it include and incorporate the growth and stability pact, where greater flexibility is clearly required?
Lord McIntosh of Haringey: My Lords, I have always refused to be drawn into saying which of the five tests is the most or least important. I shall not be drawn now.
Lord Saatchi: My Lords, is not one of the first principles of a fair referendum that the people know and are crystal clear about what they are voting for? How can that be so when so many basic questions have remained unanswered? For example, what fiscal rules will govern the euro? Will it be the present so-called "stupid" rules or the rules that might replace them? Is there to be an elected president? What will Britain have a veto over, if anything? What does Mr Prodi mean by a "single economic government"? We do not even know the name of the organisation we would be asked to join. Unless the Minister can answer those questions, would he not agree that under those circumstances it is inappropriate to hold a referendum and that we should call the whole thing off?
Lord McIntosh of Haringey: My Lords, that is very interesting. I have been challenging the Opposition in this House to follow the views previously expressed by the Leader of Her Majesty's Opposition in another House for a very long time, and they have failed to do so. Now the noble Lord, Lord Saatchi, has come out, and I am delighted to hear it.
We are not holding a referendum tomorrow. A referendum will be held when an assessment of the five economic tests has been completed; when all of the accompanying studies have been completed and published; and when Parliament and the Government have taken a view on the matter. When all those actions have been completed, there will then be an opportunity for a full public debate before the people of this country are asked to decide.
Lord Peston: My Lords, does my noble friend—
Lord Hooson: My Lords, does the Minister—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, perhaps we should hear first from the noble Lord, Lord Peston.
Lord Peston: My Lords, can my noble friend enlighten the House about the current thinking of my right honourable friend the Chancellor of the Exchequer? Will the assessment be made according to the criterion of beyond a reasonable doubt or the weaker criterion of the balance of probabilities? I know of no proposition in economics that can be established beyond a reasonable doubt.
Lord McIntosh of Haringey: My Lords, we have not used either the phrase "beyond a reasonable doubt" or the phrase "on the balance of probabilities", which I thought applied to legal matters. The phrase we have used, which will not please the noble Lord, Lord Peston, is "clear and unambiguous".
Lord Hooson: My Lords, does not the Minister agree that there is a great deal of hypocrisy about this discussion because this country, certainly in the short term, could live comfortably inside the euro-zone or outside it? The decision on whether or not we join in the end is a political one—and surely the country needs leadership on that.
Lord McIntosh of Haringey: No, my Lords. The consideration that the Government are giving to this matter is, in the first instance, an economic one. Of course there are political and constitutional implications, as we have always made clear, but it must be in the economic interests of this country. We must be satisfied that that is the case before we put the matter to the people of this country.
Lord Sheldon: My Lords, while I am satisfied that the five economic tests have already been met, there remains the problem of the exchange rate at which we enter the euro mechanism. Does my noble friend accept that this is one test that is much more important than any of the five?
Lord McIntosh of Haringey: My Lords, there is no sixth economic test; there are only the five tests.
Lord Pearson of Rannoch: My Lords, as recent research confirms that less than 10 per cent of the British economy is involved in trade with the other countries of the European Union, can the Minister tell the House why the Government are even vaguely considering joining the misguided EMU project, especially as none of that trade would be lost if we do not join?
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Pearson, and his advisers have been in constant touch with Treasury officials about these matters. I have never heard it suggested that less than 10 per cent of our trade is with the European Union—that clearly is not the case. I listened very carefully to the words used by the noble Lord, and he did not say what proportion of our trade is with the European Union. He used a roundabout phrase, which I shall read very carefully and write to him about it.
Lord Stoddart of Swindon: My Lords, is the Minister aware that the noble Lord, Lord Saatchi, does not speak for all of us who do not wish this country to scrap the pound? We would very much welcome an early referendum—indeed, as early as possible—but is not this the worst possible time to advocate entry into the euro, after Mr Prodi has described the growth and stability pact as "stupid" and the Germans and the French have indicated that they will break the pact because they have now recognised that one size does not fit all? Would it not be better if the Government rested on their laurels—which are great so far as concerns economic stability and progress—and said that we will never go in?
Lord McIntosh of Haringey: My Lords, I am sympathetic to the splits in the camp of those who are opposed to the European Union. The noble Lord, Lord Saatchi—if I read him right—is in favour of calling off the referendum, but I did not hear him propose calling off the previous procedures. On the other hand, the noble Lord, Lord Stoddart, would prefer to hold the referendum now, without all the precautions that we propose to take. They will have to sort it out between themselves. I do not speak for Mr Prodi in this House.
Noble Lords: Next Question!
Lord Williams of Mostyn: My Lords, I really think that we must move on now.

Gypsy/Traveller Sites
3 p.m.
Lord Aveburyasked Her Majesty's Government:
What steps they intend to take to implement the report from the Office of the Deputy Prime Minister on the provision and condition of local authority gypsy/traveller sites in England.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, the research on the provision and condition of local authority gypsy/traveller sites in England was only recently published. Therefore, Ministers will need some time to consider the implications of the sites research and how it will inform future policy development, and the planning for the Government's 2003 spending review. Local authorities will certainly be involved in the consultation process, as their day-to-day knowledge on the ground will be crucial if our policies are to have any chance of success.
Lord Avebury: My Lords, does the Minister agree that at this stage we can at least decide that a mistake was made in 1994, when Parliament left it entirely to private owners to provide all the necessary gypsy accommodation? Does he further agree that the research proves that the combined resources of local authorities, social landlords, the housing corporations and the private sector will be needed if we are to deal with the impending crisis in terms of shortage of accommodation? Does the Minister accept the estimate by his researchers that at least 1,000 new pitches will be needed over the next five years? If that is correct, will not local authorities in the areas where gypsies habitually reside have to take specific account of the needs of gypsies in their homelessness strategies?
Lord Rooker: My Lords, to risk an accusation of being pedantic, I am not going to agree with any aspect of the research. The report was made to the Office of the Deputy Prime Minister—it was not "from" the Office of the Deputy Prime Minister as stated in the Question. So there is no timetable; there is no money; and Ministers are considering this report, which was provided to the department.
Lord Rea: My Lords, the report referred to by the noble Lord, Lord Avebury, suggests the need for an expenditure of £16.78 million over the next five years to bring sites up to standard, including those that have been closed. That level of spending cannot be met from site income. Are the Government giving serious consideration to how the money will be raised—preferably from central government rather than entirely from the budgets of local authorities, which might have to raise their council tax in order to meet it?
Lord Rooker: My Lords, there has already been a government programme for refurbishing the sites which is coming to the end of its third year. We must look at the 2003 spending review. I accept that there
198
are differences in sites. Private and county council sites have caused problems for some residents, as opposed to district council sites, if only because of the way in which rent officers become involved. It is a valuable piece of research that has been produced for the department. It raises many serious issues about the lack of pitches. It is right to say that it highlights a shortage of some 2,000 pitches. It is much easier to cope with the disturbances that occur in urban areas as a result of some the travellers' anti-social behaviour if legitimate sites are available. That is clearly identified in the research.
Lord Condon: My Lords, does the Minister agree that the challenge of dealing with traveller trespass and associated criminal damage is a major point of friction between police and the public in a number of counties? Does he further agree that any clarification of designated sites is to be welcomed as it will encourage a more consistent police response and enhance police-public relations in those counties with the most severe challenge?
Lord Rooker: My Lords, I certainly agree with the right reverend Prelate. The police in some areas have made it clear that they will not move people on if there are no sites for them to be moved to. That is a responsibility of the local authorities. He is quite right: there are major issues. So that no one runs away with the wrong idea, I should say that the report deals only with sites and numbers. It does not deal with management or with anti-social behaviour. That is another issue altogether.
The Lord Bishop of Portsmouth: My Lords, the right reverend Prelates on these Benches appreciate and support the sentiments expressed by Members of this House on the occasion of the final appearance in this House of the Archbishop of Canterbury in his role as Archbishop. We should not like the Government to adopt a national policy of any kind on travelling Archbishops! But do the Government realise that there is a crying need for a national policy that can be applied as regards the entire Roma community in these islands?
Lord Rooker: My Lords, first, perhaps I may apologise to the noble Lord, Lord Condon, for seeing him only out of the corner of my eye.
Lord Condon: My Lords, the apology is accepted!
Lord Rooker: My Lords, there needs to be a policy. There will always be travellers and nomads, in whatever country. It is right that provision is made in a civilised fashion so that they are part of an inclusive society as much as they want to be. That requires education and support from government and local government. It is right that we do that, and that we review the position from time to time. I cannot say that it would be a good idea to impose the conditions that have applied in the past as regards site requirements.

199
I am not in any position to do so. The report will be considered and we shall have consultation with local authorities on the best way forward.
Baroness Blatch: My Lords, will the Minister give an assurance that, when consideration of the report is complete, the Government will continue, as previous governments have, to support local authorities which apply the planning regulations equally to all people, whether travellers or non-travellers?
Lord Rooker: My Lords, the Government will support all local authorities which apply the planning regulations in accordance with the law.
Lord Mackie of Benshie: My Lords, has this country had an influx of gypsies from eastern Europe, where in some countries they have been very badly treated? If so, are they adopting the traditional way of life of our gypsy population?
Lord Rooker: My Lords, I do not know. All I can say is that most people in this country would not be able to obtain their fruit and vegetables were it not for an "influx" of people from eastern Europe to pick them. There is a big shortage of such workers. This is a seasonal issue. People come to this country in their thousands to carry out this activity, and they return home during the winter. This is not an "influx" in the way that the noble Lord put it in his question.

Adoption and Children Bill
3.6 p.m.
Read a third time.
Clause 3 [Maintenance of Adoption Service]:
Baroness Barkermoved Amendment No. 1:
Page 4, line 3, at end insert ", and
( ) for the provision of information about adoption support services"
The noble Baroness said: My Lords, I return once again, in a slightly different way, to an issue that has been in the forefront of our considerations; namely, how best to organise and provide support for people who adopt children.
Over the many months that we have worked on the Bill, we have returned time and again to the key question of what it is reasonable to expect local authorities to provide in terms of post-adoption support. We have had interesting and, at times, heated discussions about the way in which adoption services should dovetail with other support services for children.
We have had equally interesting debates—in large part informed by the outstanding contributions of the noble Baroness, Lady Howarth of Breckland—on how best to set up a system of adoption support which will enable local authorities to recognise the distinct problems that adopted children have, without giving
200
them greater importance than those of many other children—for example, those with special educational needs.
We have argued at considerable length about the duties of local authorities to provide adoption support once they have fulfilled their obligation under this legislation to assess adoptive families and adopted children in terms of their support needs. I think it is accurate to say that we have reached no agreement on the matter, and it is highly unlikely that we shall reach agreement on a working definition of support that would meet everyone's requirements.
This amendment has not been debated previously. We on these Benches have considered all the previous discussions and have arrived at a different position which I hope will find favour with the Minister. The amendment is not about requiring local authorities to make particular service provision. It is about placing on the face of the Bill an explicit duty on local authorities to provide an adoption information service.
Clause 3 requires local authorities to maintain an adoption service. I suspect that a response to the amendment will be that it is unnecessary on the grounds that if a local authority is under an obligation to maintain an adoption service, surely it would need to provide information about it. However, I fear that in practice that does not necessarily follow.
In my work outside the House, I frequently spend time sitting in, or walking into, local authority social services department buildings where I often see notices encouraging people to become an adoptive parent. The precise issue at the heart of the amendment is not the provision of services by the local authorities but the problem of adoptive parents' complete lack of knowledge of the services available and where to find them. During the adoption process, many adoptive parents become more familiar with social services departments than the rest of us. But they still do not know the complete range of services they can access.
For some adoptive parents the first few years of adoption—and it is a life-long process—will be fine, with the result that they have minimal contact with the statutory authorities. However, something may go wrong down the line when parents are out of the loop and do not know how to find the help they need. We talk endlessly about the value of support and, sometimes, crisis intervention for adoptive families. The amendment simply requires each local authority to maintain an adoption service. It makes no comment about how it should be provided. The service could, for example, be contracted out to a voluntary organisation or a children's organisation.
As a result of the many hours of discussion, I have reached the fundamental conclusion that if we give adoptive parents nothing else, we must give them the chance to access services when they need them, even if they pay for those services themselves, which happens frequently, as adoptive parents will confirm. With that in mind, I move this amendment. I hope that my explanation of it finds some favour with the Minister. I beg to move.
3.15 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I welcome the opportunity to debate again the provision of adoption support services. The noble Baroness, Lady Barker, said that we do not agree, but there is agreement on the essential need for available proper adoption support for everyone who needs it. It would not be right to leave the House in any doubt that we are committed to ensuring that local authorities do the right thing. All the evidence suggests that adoption support is essential to help to ensure that adoption works for children, who are the paramount consideration, and for the parent, or parents.
Although we disagreed with the amendments tabled by the noble Baroness, for reasons I do not need to repeat for the fourth or fifth time, we do not disagree one iota with the need to ensure that proper support services are available. I reassure the House that it will be part of my department's performance management of local authorities to provide appropriate support services. We are ensuring through the National Care Standards Commission and its successor body that adoption services will be properly inspected in future. That will also be an important matter for consideration.
Again, I have no argument with points raised by the noble Baroness about the importance of available information. She talks of seeing in social services departments promotional literature encouraging responsible people to consider adoption, and stresses how important it is that information should be available at that first stage and throughout the adoption process and beyond. As she says, adoption is for a lifetime. We have recognised that in the Bill which makes clear that adoption support services must be available after adoption has taken place.
The Bill already gives us all we require in the placing of responsibility on local authorities. The range of adoption support services will be set out in regulations made under Clause 2. The provisions in Clauses 2 to 4 will be used to underpin our new framework for adoption support services and financial support promised in the White Paper. The amendment would provide for Clause 3(2) to set out that local authorities must make and participate in arrangements for the provision of information about adoption support services. Again, I have no argument that adopters should be informed of the types of adoption support available, and we have made clear that local authorities must make that information available.
Clause 2(6) sets out what is meant by adoption support services. It specifies that this includes counselling, advice and information. Through the duty on local authorities to make and participate in arrangements for the provision of support services in Clause 3(2)(b), local authorities are already under an obligation to arrange for the provision of information. The regulations that follow will expand on precisely how that duty should be exercised. On Report, I explained that we were giving careful thought to how we can best assist those affected by adoption both to
202
be informed about and to access the various support services. I agree with the noble Baroness that clear and accessible information about the availability of the services is critical if those affected by adoption are to be helped to access the right support services at the right time.
As I said on Report, as part of this work we are considering the role that key adoption support workers might play in helping those affected by adoption both to identify support needs and to help them to access services to meet those needs The key worker would not necessarily have to be a current council social worker. In our recent consultation document on adoption support we asked detailed questions about the key workers. We are analysing the responses to that consultation.
In conclusion, the Bill as now drafted meets all the requirements that the noble Baroness seeks. I also give my commitment to her and the House that we will ensure that the timely provision of as much accurate and concise information as possible will be part of a rigorous performance management regime for adoption support services.
Baroness Barker: My Lords, I thank the Minister for that helpful reply, which added to his previous statements about the possible role of key workers. There was not much clarity on that on Report. As the noble Lord knows, I eagerly anticipate the evaluation report, which he has informed us will come in about three years as a result of our discussions. When we discuss those matters, we shall assess the information on the basis of the extent to which there is a uniform baseline of adoption provision. All the reports produced by the department have time and again shown up the patchy nature of adoption support services. That is a very important issue for the increasing number of people whose adoption happens in one local authority and who then move to another. We have talked about that before. People's needs are not uniform, so I am not asking for uniform services throughout the country, but there needs to be a baseline. The provision of information is a fundamental key factor in that.
I am heartened by what the Minister has said about the potential role of key workers and about the advice and guidance that will come from his department on the provision of information. At this stage in the Bill it always feels as though we have debated things seven or eight times, but I believe that it has been helpful to do so again and put a bit more on the record. I thank the Minister for his reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Adoption support agencies]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 2:
Page 7, line 17, after "adoption" insert "other than for the purpose mentioned in section 97(1)"
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 3 to 6. On Report, the noble Baroness, Lady Noakes, tabled amendments about

203
registered adoption support agencies being able to obtain information from the registrar-general and adoption agencies. In response, the Government tabled an amendment to insert Clause 97. These amendments are mostly consequential on the new Clause 97.
Amendment No. 2 is in Clause 8, which amends the Care Standards Act 2000 to make new provision for the registration of adoption support agencies by the registration authority. It allows agencies other than adoption agencies to provide support services in connection with adoption, provided they are properly regulated. This could include, for example, birth records counselling. Subsection (1)(a) provides that an undertaking is not an adoption support agency simply because it provides information about adoption. This allows organisations to be able to provide general information about adoption without having to register and be regulated. Amendment No. 2 changes subsection (1)(a) by inserting a reference to the new clause for information in connection with pre-commencement adoptions. The effect is that, if an undertaking provides information for the purpose of Clause 97, it will need to be a registered adoption support agency. By requiring it to register, we will be able to provide robust safeguards and ensure that intermediary services are provided to an appropriately high standard by staff with the necessary training and expertise.
Amendments Nos. 3 to 5 are in Clause 9, which authorises the making of regulations for the exercise of functions of local authorities, voluntary adoption agencies and adoption support agencies in relation to adoption. Since we put in Clause 97, we have reviewed our policy for access to information for adoptions made after enactment. We consider that adoption support agencies should also be able to play a valuable role in helping adoption agencies with the post-Bill scheme by carrying out some of the work at the request of adoption agencies or at the request of individuals who wish to apply for information held by adoption agencies. Amendment No. 3 omits the reference to support services so that regulations can make provisions for any purpose relating to the exercise by adoption support agencies of their functions in relation to adoption. The effect of that is that they can be regulated in their role of assisting adoption agencies in the disclosure of information for adoptions made after the Bill's enactment.
Amendment No. 5 is a technical amendment necessary to include a reference to the new clause on information for pre-commencement adoptions. Amendment No. 4, which is not directly consequential on Clause 97, is a technical amendment inserting a reference to Clause 45 in Clause 9(2).
Amendment No. 6 is in Clause 11, which amplifies the powers in Clause 9 in relation to the charging and payment of fees. Clause 11 enables the appropriate Minister to make regulations prescribing the fees that may be paid and charged by adoption agencies to persons and organisations that provide facilities as part of the adoption service, such as other adoption
204
agencies and adoption support agencies. The amendment first provides that regulations may enable local authorities as well as voluntary adoption agencies to charge fees for the provision of counselling services. Secondly, it provides for those fees to be regulated. Provision has already been made for adoption agencies to charge a fee in connection with the disclosure of information.
Clause 97 makes provision for regulations that would authorise the charging of fees by registered adoption support agencies, the registrar-general and adoption agencies. The amendments complete the necessary range. I beg to move.
On Question, amendment agreed to.
Clause 9 [General power to regulate adoption etc. agencies]:
Lord McIntosh of Haringeymoved Amendments Nos. 3 to 5:
Page 8, line 2, leave out "support services"
Page 8, line 4, after "12," insert "45,"
Page 8, line 4, leave out "and 56 to 65" and insert ", 56 to 65 and 97"
On Question, amendments agreed to.
Clause 11 [Fees]:
Lord McIntosh of Haringeymoved Amendment No. 6:
Page 9, line 34, at end insert—
"( ) Regulations under section 9 may prescribe the fees which
may be charged by adoption agencies in respect of the provision
of counselling, where the counselling is provided in connection with the disclosure of information in relation to a person's adoption."
On Question, amendment agreed to.
Clause 19 [Placing children with parental consent]:
Lord Clement-Jonesmoved Amendment No. 7:
Page 14, line 19, at end insert—
"( ) Application may be made to the court for a declaration that the consent of a parent or guardian under subsection (1) has been validly given.
( ) The court may make an order prohibiting an adoption agency from placing a child for adoption under this section where the court is satisfied that any person mentioned in section 1(4)(f) is able and willing to care for the child."
The noble Lord said: My Lords, we have debated placements and placement orders on every occasion that the Bill has come before us. As your Lordships will be well aware, the Bill currently envisages adoption agency placements being made pursuant to consent given under Clause 19 or under a placement order made under Clause 21. Placement orders cannot be made unless either the child is already subject to a care order under Section 31 of the Children Act 1989 or the court considers that the threshold condition for making a care order under that section—significant harm to the child—is satisfied.
In previous debates on the placement provisions, the Government appear to have acknowledged that there could be circumstances in which, despite the apparent consent of the parents to the proposed placement, court involvement may be necessary. The noble Baroness, Lady Howarth, came up with the best

205
expression last time when she referred to circumstances in which there was a danger of consent being withdrawn. I drew attention to a middle way that could be inserted into the Bill in those circumstances.
However, the Government have resisted any attempt to amend the Bill to provide that there should always be a placement order. Many of our debates have centred round that. They have suggested that if an adoption agency is concerned about, for example, whether a father who does not have parental responsibility should be consulted about the plan, perhaps against the mother's wishes, it will be able to invoke the court's inherent jurisdiction to resolve the issue.
Another area of concern is where there was some question mark about the capacity of the parents to give a valid consent to placement, perhaps because of learning disability or mental health problems. Placement cannot be made without either the consent or a placement order. However, it is possible to envisage circumstances, such as those mentioned by the noble Baroness, Lady Howarth, in which, with the patient not actively opposing placement, it might be hard to satisfy the "significant harm" threshold. Nevertheless, if either the agency or the CAFCASS officer were unsure about the consent, the placement could not go ahead.
Amendment No. 7 would allow the court to become involved in two ways. First, after a judicial hearing it could make a declaration that a parent had given a valid consent, thus enabling the agency to continue with its proposed placement under Clause 19 and greatly reducing the risk that the issue might be reopened later on the hearing of the final adoption order application.
Secondly, where concerns were raised either by the agency itself or by the CAFCASS officer about the need to ascertain the views of a father without parental responsibility or another relative or relevant person such as a foster carer, the amendment would allow consideration of whether the placement should be prohibited or at least delayed pending the consideration of that parent's views.
Amendment No. 16 enables rules to be made under which the CAFCASS officer could refer to the court any concerns he or she had about either of the above matters. Clause 101 as currently drafted does not make it clear that such a referral would be possible.
In essence, the purpose of both these amendments is to ensure that there is a facility for court involvement where it is needed. I beg to move.
3.30 p.m.
Baroness Andrews: My Lords, I am grateful to the noble Lord for enabling us to address for the final time, I hope, the issue of placement by consent. He has conscientiously and thoroughly raised this issue, thereby allowing us to debate the twin-track approach to placement. These debates have been productive at
206
each stage of our consideration and helped to clarify the issues. I should therefore like carefully to explain why these amendments do not meet our concerns.
As the noble Lord, Lord Clement-Jones. said, the amendments address two main issues. The first is how to ensure that consent to placement for adoption is given validly and properly, and the second is how to ensure that, in consents to adoption placements, the adoption agencies fully, properly and appropriately consider and involve unmarried fathers and others whom the noble Lord mentioned.
Amendment No. 7 concerns the issue of consent. Apart from baby placements under the placement for adoptions provision in Chapter 3, an adoption agency may place the child for adoption with consent if it has the consent of the parents under Clause 19. Very importantly, that consent has to be witnessed by a CAFCASS officer who is independent of the adoption agency, whose job it will be to ensure that consent is given properly and with the full understanding of the parents. We are all clear on that point. The amendment is concerned with what should happen if the CAFCASS officer does not think that the parents are able to give consent with full understanding. It has been suggested that in such circumstances the court should be able to make an order on the application of the agency or the CAFCASS officer indicating that consent has been properly given. The courts would therefore become involved.
There are various reasons why I do not think that that is the right approach. The first consideration is why consent cannot be given validly and why the parents might not be considered capable of giving consent. The officer may feel, for example, that, even after the explanation has been provided, the parents have not been fully informed and require more information, more help and more support. In such circumstances, the obvious route would be for the officer to notify the agency that it should provide further information, counselling and support. I think that that would be a relatively straightforward assessment. However, the Bill provides an answer for such cases, and the process will provide for that need to be satisfied.
The issue may not be about the lack of information but about the officer's doubts about the parents' capacity to give consent or consistency in their desire to give consent. We are concerned that the type of court declaration proposed by the amendment is not the right approach. First, we are not entirely satisfied that the amendment makes clear what type of process or hearing the court should hold to determine the issue of consent.
Secondly, the amendment raises serious issues about the next step. What can the court do if it considers that the parents are not capable of giving consent? The crucial issue is what should happen then. For example, could the court force the parents to attend so that the court itself can explore the issue and make its own judgment? If so, would the agency have to return to the court to apply for a placement order? If so, would we

207
not end up with a two-stage process to obtain a placement order rather than a simple one-stage process?
In all logic, we should hope that the basis for the confusion about whether the parents genuinely wish to give consent—in which they might change their mind—or are capable of giving consent will be picked up at a much earlier stage. We believe that those issues should be addressed either in the adoption panel or when the agency itself becomes involved. If there is genuine doubt about the capacity to give consent, we believe that the way to resolve it would be for the CAFCASS officer not to certify the consent and to notify the agency of his concerns. Subsequently, application for a placement order can be made.
Where there is no Clause 19 consent but the agency considers that the child should be placed for adoption because the child is at risk of significant harm, Clause 21 would place the agency under a duty to apply for a placement order. Subsequently, the court would become involved and be able to decide whether the parents are capable of giving consent. Subsequently, the placement order could be made providing that the harm threshold has been met. If the court is not capable of giving consent, the placement order hearing could enable the parents' consent to be dispensed with as provided for under Clause 52(1). The child's welfare would be taken into consideration above everything else.
We are therefore convinced that the placement order provisions in Chapter 3 already provide for an appropriate court hearing to determine whether there should be a placement for adoption in cases where there is real doubt about parental capacity to give consent. We do not believe that the significant harm threshold will present an inappropriate barrier to placement. I should perhaps add that one of the reasons why we are so committed to the significant harm threshold is the necessity to be consistent with the Children Act and all the protection that it offers—a point that the agencies clearly made to us when we examined the issue one year ago. When the previous version of the Bill was published, in March, it did not include the significant harm threshold for placement orders. Many stakeholders expressed many concerns about the omission. We subsequently agreed with their judgment and have accordingly amended the Bill.
I reassure the noble Lord, Lord Clement-Jones, that we are looking for appropriate processes that will suit the condition of each family and each child. We want rapid processes, as set out in the Bill and subsequent regulations, that are consistent with the Children Act. We do not believe that the amendments offer any improvement on that.
I appreciate the second issue which the noble Lord, Lord Clement-Jones, seeks to address in his amendments—the concern to ensure that adoption agencies properly involve and consult wider family members including unmarried fathers in proceedings for placement with consent. We entirely agree with the importance of ensuring that that happens. Although I hesitate to use the word safeguard—which I know, for
208
the noble Lord, is like a red rag to a bull—the Bill contains a considerable number of safeguards to ensure that that does happen. We resist the amendment because we do not believe that it is necessary to impose an additional safeguard, especially one offering scope for further delay and confusion.
I should explain my understanding of the changes proposed in the two amendments. When a CAFCASS officer witnesses a consent under Clause 19, he should also examine what the agency has done to consult and work with wider family members. If the CAFCASS officer is unsatisfied, he can apply to the court so that it can make an order blocking the adoptive placement, perhaps pending the agency carrying out the work. The intention of the amendments as I understand them is to provide a check on agencies to ensure that these important issues—which relate to Article 8 of the ECHR and the right to family and private life—are picked up. I think that that is absolutely right. However, I argue that the processes in the Bill and the procedures that will follow will ensure that they are picked up at an earlier stage than that proposed by the amendment.
First, all agencies will be bound by the clause to which we have often referred, Clause 1(4)(f), to consult and involve relatives, wider family members and others with a significant relationship with the child, and to consider their willingness and their capacity to care for the child. We have already made clear that the new regulations and the accompanying guidance will require those obligations to be discharged from the very beginning of the process at the point at which the agency is considering whether or not adoption is in the best interests of the child. We believe that that will be a responsive process and we intend to ensure that it is a thorough process focused on child welfare.
Secondly, we have also said that we are willing to provide in court rules a route for agencies to apply to the courts for guidance so that they do not have to rely on inherent court jurisdictions whenever they are not sure what is the appropriate action to be taken in a complex family situation. I reinforce that point again. As part of the decision-making process the adoption panel will scrutinise the agency's plan for the child. That includes, by definition, a very careful examination of whether the agency has properly explored the wider family situation. The fundamental review of adoption panels constitutes an extra safeguard to ensure that that happens. Therefore, there is a strong independent element here. Scrutiny will be undertaken before a final decision is taken that adoption is in the child's best interests. That will take place well before any CAFCASS officer becomes involved. We believe that we have to get the matter right at that stage of the process.
Thirdly, all children looked after by local authorities will come under the new independent reviewing officer system to be established under Clause 118. That system will include all children accommodated and covered by Chapter 3 of the Bill, whether they are voluntarily placed, under statement orders, actually placed with prospective adopters or simply

209
accommodated pending placement. Each of those children will have a care plan which will have to be reviewed regularly by the authority. Independent reviewing officers will take part in every review. That is yet another independent element to make sure that the views and the needs of the child are taken into account. That process will, of course, include Article 8 rights concerning links with parents, relatives and so on. If the authority devises, or seeks to implement, a plan that breaches a child's human rights in that respect, for example, by separating him or her from wider family members, the reviewing officer will first notify the authority of his concern in the expectation that the plan will be modified to take account of it. If the authority does not do so, the reviewing officer can inform the child's parents, who can take action on the child's behalf, or he can alert CAFCASS. That is another barrier to things going wrong. All those processes would occur well before a CAFCASS officer became involved. That is not a snapshot; it is an ongoing function that can be continually reviewed.
I am going into the detail as I want to place on record the layers in the process where we hope to pick up on anything that may lead to a disaster. I hope that noble Lords are reassured that we are addressing the important concerns that the amendments raise and that they will understand why we do not think that it is necessary or proportionate to add another court process in the manner suggested.
These amendments are complex. We are aware that they raise important issues. We are impressed by the seriousness and the scrupulous attention to detail that has gone into drawing them up. I hope that my response reinforces the purpose of the Bill but also convinces the noble Lord that he can have confidence in the Bill and its processes.
3.45 p.m.
Lord Clement-Jones: My Lords, I thank the Minister for that careful reply. I appreciate the care that went into it in terms of taking us through what the Minister perceives to be the safeguards. I confess that she recounted an impressive catalogue of safeguards. However, the problem is that it does not have the final backstop, which is precisely what this set of amendments was designed to achieve.
I am slightly disappointed that the Minister appears not to have a clear idea of the procedure by which the amendments would operate as a fair degree of trouble was taken to brief the department beforehand and illustrations were given of how the process would work. Earlier, I spared the House the full catalogue of exactly how the process would work on several alternative bases depending on who took the initiative in taking the matter to court. I could recount—but I shall not do so—the precise procedure that was given to the department. Therefore, I am slightly disappointed by the Minister's lack of understanding of exactly how the process would work. The basis on which it would work is highly logical and, in my view and that of those who briefed me, it would have worked in a perfectly satisfactory way.
210
However, as regards the Government's placement orders scheme, it is difficult to insert a new brick in that edifice without that having perhaps unintended consequences. I believe that the Government, birth parents, CAFCASS and others will find that they do need the backstop that I mentioned. Although I am disappointed, I shall not press the amendment at this stage. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 [Contact]:
Baroness Andrewsmoved Amendment No. 8:
Page 17, line 18, leave out from "child-to end of line 19 and insert "is placed for adoption"
The noble Baroness said: My Lords, in moving Amendment No. 8, I wish to speak also to Amendments Nos. 9, 10 and 11. These amendments deal with baby placements. I hope that in the light of the recent disappointment of the noble Lord, Lord Clement-Jones, I can give him some better news on this group of amendments as they concern issues which he raised on Report on 14th October. We are bringing forward the amendments late but that is simply a measure of the fact that we have carefully considered the matter and have had more discussions with stakeholders about how to deal with baby placements and, in particular, with regard to the legal limbo into which the noble Lord feared some placements might fall if after the six weeks period the mother disappeared before the formal consent had been sought.
I remind noble Lords how the provisions for baby placements work. Under Clause 18 an adoption agency may place a child for adoption under six weeks old without needing either a placement order or a formal consent under Clause 19. This provision to permit placement under six weeks enables young babies to be placed for adoption even if the mother is not yet in a position to give formal consent to placement under Clause 19.
Clauses 47 and 52 provide that any consent given by the mother of a child to the making of an adoption order or to placement under Clause 19 is ineffective for the purposes of making an adoption order if it is given less than six weeks after the child's birth. As we have discussed at various stages of the Bill, that allows the mother time to recover from the birth and time to receive additional counselling to ensure that she is making the right decision for herself and the child. The noble Earl, Lord Howe, raised anxieties in that area. We hope sincerely that that will not constitute the first counselling that is offered but will constitute the final stages of counselling.
The effect of Clause 18 is that the agency may, with the parents' consent, place a child for adoption when it is under six weeks old. The process for seeking that consent will be set out in the adoption agency regulations. But in order to have a consent to placement for adoption that will be a valid basis for making a final adoption order under Clause 47(4), the agency will have to return the child to the mother after the six week period to get the formal consent.

211
On Report the noble Lord, Lord Clement-Jones, was concerned about the situation where a mother had given consent when the child was under six weeks old but the agency was unable to locate her. He asked what the legal status of the child would be in those circumstances. He was worried that the child would be moved to a temporary foster placement in the mean time with all the disturbance that that would involve. I reassure the noble Lord that we are clear that there would be no need for any temporary movement to foster placement. We believe that that would be undesirable and wrong; it is certainly not a requirement of the Bill. We have taken advice and worked through the issue. We are satisfied that, in the light of the work we have done, the status of the placement in legal terms would be that the child would still count as placed for adoption under the Bill after the six-week period. There would be no need for any temporary foster placement. Once a child had been placed for adoption under the Bill, the child remains in law placed for adoption unless something happens to change that situation—for example, if the agency or the parents seek to withdraw the child from the placement.
We hope that there will be very few situations in which a mother consents to a baby under six weeks being placed and then disappears entirely. It is hard to imagine the tragedy that that would involve. It would mean that the agency was never able to obtain a formal consent under Clause 19. However, there would be nothing to stop the adoptive placement proceeding as an agency placement all the way through to the making of the final adoption order. The difference would be that, rather than the final adoption order being made under the second condition in Clause 47(4) on the basis of a valid Clause 19 consent to placement, the adoption order would have to be made under the first condition in Clause 47, with parental consent or with that consent having been dispensed with. I hope that that reassures the noble Lord that the legal situation is watertight. The detailed examination prompted by his question uncovered a couple of matters in relation to which we wanted to put the position beyond doubt. That is what our amendments will do.
The amendments provide that where a child under six weeks old has been placed for adoption but after the six weeks the agency does not yet have authorisation under Clause 19, the rules for removal set out in Chapter 3 of the Bill still apply. Only the adoption agency may remove the child from the placement. However, the mother or parent can request the return of the child at any time. The child must be returned within seven days, the only exception being where the local authority applies for a placement order.
The second area in which we are proposing changes is in relation to contact. The effect of the amendments is to ensure that the provisions for placement contact orders in Clauses 26 and 27 cover baby placements which begin when the child is under six weeks but continue after that point without a Clause 19 consent being obtained. In view of the importance of sibling
212
contact, we are doing that in order to ensure that siblings and other relatives who wished to apply for contact were able to make use of the contact provisions and that they would not be shut out from the very early weeks of a child's life, especially if there was any gap period between the six weeks and the giving of the formal Clause 19 consent. That is obviously important to grandparents. The amendments aim to make it crystal clear that the benefits of the placement provisions in terms of rights of return and access to contact apply in any gap between the six-week period and formal consent being given under Clause 19.
I hope that the noble Lord feels that we have addressed the concern that he raised. We have taken very seriously the need to be absolutely clear in law. I hope that he agrees that the amendments provide a clear legal status for those babies after the six-week period. I beg to move.
On Question, amendment agreed to.
Clause 27 [Contact: supplementary]:
Baroness Andrewsmoved Amendment No. 9:
Page 18, line 7, leave out "less than six weeks old" and insert "placed for adoption"
On Question, amendment agreed to.
Clause 30 [General prohibitions on removal]:
Baroness Andrewsmoved Amendment No. 10:
Page 20, line 8, leave out paragraph (b) and insert—
"(b) a child is placed for adoption by an adoption agency and either the child is less than six weeks old or the agency has at no time been authorised to place the child for adoption,"
On Question, amendment agreed to.
Clause 31 [Recovery by parent etc. where child not placed or is a baby]:
Baroness Andrewsmoved Amendment No. 11:
Page 21, line 9, leave out paragraph (a) and insert—
"(a) a child is placed for adoption by an adoption agency and either the child is less than six weeks old or the agency has at no time been authorised to place the child for adoption, and"
On Question, amendment agreed to.
Clause 42 [Child to live with adopters before application]:
Earl Howemoved Amendment No. 12:
Page 27, line 35, leave out from "them" to "preceding" in line 36 and insert "at all times during the period of six months"
The noble Earl said: My Lords, this amendment, which I also tabled on Report, is designed to highlight my concerns about the procedures that are proposed to apply to non-convention intercountry adoptions. My understanding, which the Minister confirmed on Report, is that where an adoption application to a UK court is required, unless it relates to a convention adoption, the child must have had his or her home with the applicant for three years out of a five-year period prior to the application being made. As I read it, that is a change to the position provided for under the Adoption Act 1976, as modified by the Adoption (Intercountry Aspects) Act 1999. In my opinion, that is a change for the worse. Requiring children to have

213
to wait for more than three years for their legal position to be secured cannot possibly be in their best interests.
As I said in our earlier debate, many countries of origin are likely to balk at provisions which are obviously out of step with those that rightly apply to domestic adoptions. The Minister indicated to me that the draft intercountry adoption regulations have recently been the subject of consultation, particularly in the context of our obligations under The Hague convention. She kindly said that she would include in her and her department's deliberations the issue of what the appropriate residence period should be for relative intercountry adoptions. That was a welcome assurance.
However, as I said, there is a wider concern. This issue does not relate simply to relative intercountry adoptions. Although Clause 42(6) allows for an adoption application to be made sooner than normal if the court approves, the Minister said that that provision would be invoked only in cases that were considered to be of an exceptional nature. I do not believe that that covers the concern that I raised on Report and which I raise again. It is an unnecessary hurdle, apart from being a drain on court time.
The amendment, if agreed to, would specify the same six-month period before which an adoption order may be granted in respect of all intercountry adoptions, regardless of whether they are convention designated or non-convention non-designated adoptions. I hope that the Minister will provide me with some reassurance on those issues.
I do not wish to anticipate what the Minister may say about government Amendment No. 15, which is grouped with this amendment. He will know, I am sure, that it has been commented on by the Delegated Powers and Regulatory Reform Committee. I hope that the Government will take those comments into account. I beg to move.
4 p.m.
Lord McIntosh of Haringey: My Lords, I should begin by apologising to the House for the late tabling of the government amendments. The period between Report and Third Reading is very short but we tabled them later than we would normally like. We wanted to get this important and complex issue right.
I turn to the amendments relating to the time that the child should live with the adopters. I believe and hope that the amendments that I have tabled, at least with regard to their regulation-making powers, deal with the concerns raised in relation to Amendment No. 12, to which the noble Earl, Lord Howe, has just spoken. As he said, my noble friend Lady Andrews outlined on Report the current position under the Bill and explained that we would return to the issue of the time that the child should live with adopters in intercountry cases following further consideration.
Under Section 13 of the Adoption Act 1976 where the applicant is a parent, step-parent or relative of the child or the child was placed by an adoption agency or in pursuance of an order of the High Court, the child
214
must live with the applicants for 13 weeks before the adoption order can be made. In cases of intercountry adoption, which are not agency placements, the child must live with the applicants for 12 months.
Under the Bill the residence periods are set out in Clause 42. For non-agency placements which are not provided for elsewhere in Clause 42, the residence period is three out of the previous five years. That is the provision to which the noble Earl, Lord Howe, objects. However, we have taken a power in Clause 83(6)(a) to enable regulations to provide that provisions in Chapter 3 of the Bill, including Clause 42, apply with modification or do not apply to children brought in under Clause 83. It is our intention to use the power to provide that the child must live with the applicants for six months where the correct procedures have been followed and 12 months where they have not. Where Clause 83 does not apply, the standard residence periods set out in Clause 42 will apply.
However, it is intended that Clause 83 will apply to all but a very limited group of people. The exceptions are likely to be, for example, parents in prescribed circumstances. Under Clause 42, the residence period for parents is 10 weeks. Therefore, in the vast majority of cases of intercountry adoption, the time that the child has to live with the adopters will be set out in regulations as six months where the appropriate procedures have been followed, as envisaged by Amendment No. 12.
This group of amendments is intended to make clear the residence periods that should apply in relation to convention adoptions. It is also intended to ensure that the same modification powers are available for the early implementation of the restrictions on intercountry adoption.
In summary, in relation to intercountry adoption, wherever the correct procedures have been followed, we intend that the child should live with the adopters for six months. That should ensure that children have time to adjust and settle with their new families and that the local authority is able to monitor the placement satisfactorily prior to the court making the order. Where the correct procedures have not been followed, we intend that the child should be required to live with the adopters for a minimum of 12 months in order to allow the child to settle with his new family and in order for the local authority fully to assess the family in lieu of the checks that would have taken place before the child went to live with the family.
I turn to the amendments which deal with the question of to whom the provisions on intercountry adoption should apply. We have received representations from intercountry adoption stakeholder groups expressing concern about intercountry adoption by relatives. They have suggested that, at present, the welfare of the child is not paramount because it is treated predominantly as an immigration rather than an adoption issue. They have raised concerns about the lack of preparation of relatives who adopt from overseas and the fact that the suitability of relatives to adopt is not assessed unless the child's home country requires it. They have made

215
clear that that means that we cannot be sure that those relatives will provide a safe, secure environment for the child. We have listened carefully to the issues raised by the stakeholder groups and believe that we need to address that important matter.
Clauses 83, 85 and 134, the transitional provision in paragraph 11 of Schedule 4 and Section 56 of the Adoption Act 1976 place restrictions on the circumstances in which children may be brought into or taken out of the United Kingdom for the purposes of adoption. At present, those restrictions include the requirement for a person wishing to bring a child into the country for the purpose of adoption to be assessed and approved by an adoption agency and for a person wishing to take a child out of the country for the purpose of adoption to be in receipt of an order permitting that. However, those safeguards do not apply when the prospective adopters are the child's natural parents, natural relatives, guardians or step-parents.
In the light of the concerns raised about that lack of safeguards, we have returned to the case for exempting those groups and have decided that something must be done to address the matter. The approach that we have taken through the amendments is to remove the specific exemption of parents, guardians, relatives and step-parents from the provisions which set out the restrictions. Then, in each case, a regulation-making power has been taken to enable us to prescribe that the provisions setting out restrictions on bringing in or removing a child are not to apply—or, where necessary, to apply with modification—to parents, relatives and step-parents. That reflects the need to be flexible and to be careful that we do not impose the restrictions inappropriately.
Using regulation-making powers will provide the necessary flexibility to react to changing circumstances. Through experience and discussions with other countries, it may become clear that it would not be appropriate to include certain groups in the restrictions. Therefore, we shall consult, and the use of regulations will allow us to respond.
Amendments Nos. 13 to 15 deal with the position under the Bill. Amendments Nos. 30 to 33 deal with the position under the Adoption (Scotland) Act 1978, and Amendments Nos. 41 to 44 deal with the position under the Adoption Act 1976. Before I leave Amendment No. 15, perhaps I may say that we have received the opinion of the Delegated Powers and Regulatory Reform Committee. Clearly it is impossible to do anything about it this afternoon but I anticipate that, when this amendment goes to the House of Commons, we shall seek to bring forward other amendments to give effect to the committee's proposal that the regulation-making powers should be affirmative in the first instance and negative on subsequent occasions.
Because the amendments remove the explicit exemption of parents, guardians, relatives and stepparents from the restrictions, that gives us additional powers in relation to residence periods. It means that we shall be able to use the regulation-making powers
216
in Clause 83, in the Adoption (Scotland) Act 1978 and in new Section 56A of the Adoption Act 1976 to make regulations to specify the time that a child must live with a parent, relative, guardian or step-parent in intercountry adoption cases.
These are detailed amendments, but our intention is clear. We intend to ensure that children who are adopted from overseas by parents, relatives, guardians and step-parents are properly safeguarded. We recognise that such children are potentially vulnerable, that they need to be protected and that their relatives may well need the same assessment of their suitability and/or help to prepare for adoption as would be the case in relation to a stranger planning to adopt a child from overseas.
However, we are also clear that we do not want to impose unworkable restrictions and that we need to take the advice of those working in the field as to any groups that should legitimately be excluded. That is why we have taken care to include in the amendments regulation-making powers that provide the necessary flexibility to react to experience, changes in practice and the views of professionals.
I hope that, on that basis, the House will accept that the amendments that we have tabled address the concerns behind Amendment No. 12 as well as the other matters that I addressed in introducing them.
Lord Clement-Jones: My Lords, before the Minister sits down, I wonder whether he could be absolutely clear about the commitment that he gave regarding Amendment No. 15. He said that he imagined that the Government would seek to amend the amendment when it went to the Commons. Will he give a commitment that, through the usual channels with the other place, he will ensure that it meets the requirements of the Delegated Powers and Regulatory Reform Committee?
Lord McIntosh of Haringey: My Lords, clearly I cannot give a guarantee as to what the House of Commons will do. I cannot imagine that that will not be the case. That is what we propose to do.
Earl Howe: My Lords, I very much welcome the thought devoted to this issue by the Minister and his colleagues and, indeed, by his department, and I welcome the assurances that he has given today. I am extremely grateful. I believe that the Government's amendments have addressed in very large measure the concerns that I raised. I also greatly welcome the modifications that the Government have proposed to Clauses 83 and 85. I consider that they represent an improvement to the Bill.
In general, I want to place on the record how much we on these Benches appreciate the willingness shown by the Government throughout our deliberations on the Bill to respond positively to the concerns raised from around your Lordships' House. I believe that this has been a very constructive series of debates. We have a better Bill as a result of those debates, and I believe

217
that all noble Lords share my appreciation of what Ministers have done. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 83 [Restriction on bringing children in]:
Lord McIntosh of Haringeymoved Amendment No. 13:
Page 47. line 17, leave out paragraphs (a) and (b).
The noble Lord said: My Lords, with gratitude to the noble Earl, Lord Howe, for his remarks, I beg to move.
On Question, amendment agreed to.
Clause 85 [Restriction on taking children out]:
Lord McIntosh of Haringeymoved Amendment No. 14:
Page 48, line 41, leave out from beginning to "adopters" in line 1 on page 49 and insert—
"( ) the prospective"
On Question, amendment agreed to.
Lord McIntosh of Haringeymoved Amendment No. 15:
After Clause 85, insert the following new clause—
"POWER TO MODIFY SECTIONS 83 AND 85
(1) Regulations may provide for section 83 not to apply if—

(a) the adopters or (as the case may be) prospective adopters are natural parents, natural relatives or guardians of the child in question (or one of them is), or

(b) the British resident in question is a step-parent of the child,

and any prescribed conditions are met.
(2) Regulations may provide for section 85(1) to apply with modifications, or not to apply, if—

(a) the prospective adopters are parents, relatives or guardians of the child in question (or one of them is), or

(b) the prospective adopter is a step-parent of the child, and any prescribed conditions are met.

(3) In this section, "prescribed" means prescribed by regulations and "regulations" means regulations made by the Secretary of State, after consultation with the Assembly."
On Question, amendment agreed to.
Clause 101 [Officers of the Service]:
[Amendment No. 16 not moved.]
Lord Clement-Jonesmoved Amendment No. 17:
After Clause 111, insert the following new clause—
"POWER OF COURT AND PARENTAL CONTACT
(1) In section 10(4)(a) of the 1989 Act (power of court to make section 8 orders), after "parent," leave out "or guardian".
(2) In section 34(3) of the 1989 Act (parental contact etc. with children in care), after paragraph (a) insert—
"(aa) a relative;"."
The noble Lord said: My Lords, I feel sweetness and light are clearly breaking across the House. However, we still have a few amendments to deal with today. I am confident that the Government will give them a favourable passage. Perhaps those are famous last words.
218
I probably succeeded again in confusing the Lord Chancellor's Department with the amendments. They appear to have been again put on the Marshalled List in truncated form. I hope that the department will be able to respond despite the fact that the amendments are somewhat flawed. Clearly I shall be interested to hear whether the Government accept the logic stated previously by these Benches.
On Report, the Government introduced an amendment to the effect that relatives may apply under Clause 26 for contact with a child whom the agency is authorised to place for adoption. It removes the earlier requirement that relatives needed to apply for leave first before making such an application. It should be mirrored in the case of special guardianship.
The amendment addresses what has become a rather illogical situation. Relatives seeking contact with a child placed for adoption do not need to apply for leave to apply for contact. However, the same people seeking contact with a child in accommodation or care need to do so. There is no obvious rationale for retaining that differentiation. Relatives are generally successful when they apply for leave making the leave stage arguably an unnecessary use of the courts' time. If their application is, in rare cases, inappropriate there is already a mechanism in Section 91 of the Children Act to restrict future applications. It is surely time to raise the presumption that they may apply for contact unless they need to be restricted from doing so rather than vice versa. I beg to move.
Lord Hunt of Kings Heath: My Lords, first, I reassure the noble Lord that, although there is a problem with the drafting, I fully understand what he seeks to do. The amendment seeks to permit relatives to apply for Section 8 orders for contact with children in care without the leave of the court.
The leave requirement is intended to ensure in the context of Sections 10 and 34 of the Children Act that applications concerning children are made by those who have a genuine interest in the upbringing of the child. In practice, leave is nearly always granted for relatives. The application for leave should be filed at the same time as the application and one fee is taken. So relatives should see little difference in practice whether or not leave is required.
There is a concern about accepting the amendment for two reasons. One is the definition of "relative" as in Clause 145. This is broad and includes,
"a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood",
or by affinity or step parent. Many of those relatives will have taken an active interest in the upbringing of the child and should have no difficulty in obtaining leave. But some of those caught under the definition may have had little relationship with the child and in those cases there may be a real question as to whether court proceedings are in the best interests of the child.
We think that the existing position is best preserved. We must see these arrangements from the perspective of the child and what is best for him or her, particularly where those children have already suffered abuse within the family.

219
I understand the noble Lord's point. He points to the distinction between the amendment in relation to placement contact orders so far as concerns adoption and the wider issue he raises. I understand that the two situations are different. Section 8 contact orders are for use in a wide range of situations including for contact with children in family situations where the child is neither in care nor subject to any court order. In those normal family situations there is no legal barrier to contact with the relatives. Where contact orders are sought, therefore, it is likely to be where there is dispute about contact. In that case, we believe that it is appropriate in the interests of the child that the leave requirement be in place as a screening process, as I have already suggested.
In contrast, a child placed for adoption is under a totally different situation. The end objective is separation from his or her family. The child is not in a normal family situation. He is under the supervision of the adoption agency which will oversee any kind of contact. There is no presumption of contact with those persons. There is already a filter for contact in adoption placements because the adoption agency looks after the child's interests. But we did still want to allow for relatives to apply to courts for contact if they were unable to secure it through the agency. That is why we have allowed them to apply for Clause 26 contact orders and why there is no leave requirement in that situation.
I hope that the noble Lord accepts that there is a valid distinction. However, the Government recognise that some relatives—we think in particular of grandparents and siblings—may have genuine concerns about whether the leave requirement imposes a barrier against an application even if, as our experience suggests, the concern is more perceived than real.
I place on record, therefore, that the Government are considering what changes to guidance and secondary legislation may be necessary to ensure that the application for leave process is as simple as possible and that there are no barriers, real or otherwise, to a concerned relative making an application for the benefit of the child.
We believe that it is right for there to be a distinction. But we are willing to look at the practical circumstances to see whether, through regulations, there is a case for streamlining the application for leave.
4.15 p.m.
Lord Clement-Jones: My Lords, I am grateful to the Minister for that reply. He makes an interesting distinction. With a child in care there may well be a dispute surrounding the child and, therefore, there is a need for a slightly different pattern than in circumstances where the adoption agency has an overview under Clause 26. That was helpful. His undertaking to see whether the guidance can clear away some of the barriers associated with applying for leave was also helpful. It would be helpful if consultation and discussion were to take place
220
between stakeholder organisations and the department. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. [Amendments Nos. 18 and 19 not moved.]
Clause 115 [Special guardianship]:
Lord Clement-Jonesmoved Amendment No. 20:
Page 66, line 20, at end insert—
"( ) a birth parent;"
The noble Lord said: My Lords, Amendment No. 105, debated on a previous occasion, was a similar amendment.
There has been considerable debate in Committee and on Report on the special guardianship provisions. Your Lordships are aware that on these Benches we had two problems with the special guardianship provisions. The duty on the local authority to provide an assessment was dealt with by a tied vote on Report and, therefore, will not be raised again. The second issue related to birth parents not being included specifically in the list of people who may request support services.
The effect of the special guardianship order is to exclude the parent from decision making about the child. It is also anticipated that some form of contact is likely in most cases. We believe that it is essential that the parent has the right to an assessment of their need for support services—otherwise, the provision of support may be lop-sided—or at least, even if parents do not have the right, that they are included in the list of prescribed persons. Therefore, the parent should have help to adjust to the new arrangements.
Although the noble Lord, Lord Hunt of Kings Heath, confirmed in Grand Committee, at col. CWH 356, that birth parents may well be included in the list of those within the "prescribed description" who may ask for support, we suggest on these Benches that this right to request support should be contained in the primary legislation, otherwise it is likely that local authorities will give it a low priority. I beg to move.
Baroness Noakes: My Lords, we considered this matter on Report. At that stage I said—and I repeat—that because such a guardianship does not sever the legal relationship between the parent and the child, the birth parents have important interests that need to be looked after in the interests of the child. Therefore, the inclusion of birth parents within those categories of persons who can request a needs assessment is an important element, not only for the birth parents but for the child. I hope that the Minister will be able to respond even more positively than he did on Report in this respect.
Lord Hunt of Kings Heath: My Lords, I always attempt to respond positively. As noble Lords will know, when we previously discussed the matter I informed the House that we already had the ability to use the power in subsection 3(c) to prescribe other people who may be assessed, which would be a means of including birth parents.

221
However, I am sympathetic to the intention, which I think provides a signal in the legislation that we anticipate that birth parents are likely to be key recipients of special guardianship support services. Alas, the noble Lord's amendment is technically flawed. The reference to a birth parent causes some difficulty because that is not defined in the Children Act.
Therefore, in the spirit of understanding and good fellowship in this Bill—which I think we have all enjoyed—I suggest that the House passes the amendment and we shall seek to make a minor amendment in another place in order to make the provision technically correct.
Lord Clement-Jones: My Lords, I cannot refuse an offer such as that. I am deeply grateful to the Minister for his "charity"—if I may put it that way. I thank the Minister for his remarks. Many people will be extremely happy with that reply, and not just noble Lords on these Benches.
On Question, amendment agreed to.
Clause 116 [Accommodation of children in need etc.]:
Lord Clement-Jonesmoved Amendment No. 21:
Page 68, line 20, after "accommodation" insert "with their families"
The noble Lord said: My Lords, in moving Amendment No. 21, I shall speak also to Amendment No. 22. The amendment to Section 17 of the Children Act 1989 in Clause 114 of the Bill is welcome in so far as it confirms the power of local authorities to provide accommodation for children with their families under Section 17.
Such confirmation is urgently needed because the law has become confused on that point as a result of contradictory decisions in three Court of Appeal cases. We discussed them at some length last time. All three cases are now subject to appeal to the House of Lords. If an amendment to this effect is not made, we must await a decision by the House of Lords on those cases. If its decision does not allow for families to be provided with accommodation under Section 17, the opportunity for sorting out the problem will remain unresolved for the foreseeable future.
However, despite the general support for the principle behind the amendment, there is widespread concern that the proposed amendment to Section 17, coupled with the amendment to Section 22 of the Children Act, legitimises the current local authority practice of providing accommodation—for example, bed and breakfast placements—for children and young people in need without a parent or other person with parental responsibility under Section 17 of the Act, instead of accommodation provided by Section 20 of the Act, even when there appears to be a clear duty to do so.
Secondly, removing the status of the "looked-after" child from this group also removes the duty of local authorities to safeguard and promote their welfare, to consult with them about actions that affect them, and to comply with the regulations designed to ensure that
222
placements are safe and suitable. That undermines many of the commitments made as a result of People Like Us.
Thirdly, the amendment contains no lower age limit. Technically it could be used to validate the placement of children of any age.
Lastly, there is evidence to suggest that local authorities are already using Section 17 of the Children Act to provide accommodation to asylum seeker children. It appears that the Government do not disapprove of this action in principle; I quoted last time from the letter from the noble Lord, Lord Hunt, to the noble Baroness, Lady David, dated 5th August. If that practice persists in relation to asylum seeking children it could be a breach, as mentioned on Report, of Article 2 of the United Nations Convention on the Rights of the Child—the right to equal treatment.
The crucial disadvantage to this practice is that under Section 17 the local authority are not subject to the duties in Sections 22,23 and 24 of the Children Act and the associated regulations, which prescribe the duties of social services departments in respect of "looked-after" children, including the duty to review their case and/or apply the leading care provisions.
If a young person is accommodated under Section 20, this additional support is mandatory, depending on the assessed need. There cannot be many children or young people out there who need accommodation because they are no longer able to live with their families, yet do not need the support and protection laid down in these sections of the Act. For example, they may need advice and support to apply for welfare benefits to which they are entitled, and/or they may need someone to enter into a contract on their behalf, as children do not have contractual capacity. 11 they are accommodated under Section 20, and therefore have "looked-after" status under Section 22, they will have a social worker who will deal with such matters for them; if they are accommodated under Section 17, they will not. We question which children, who cannot live at home, would never have a potential need for this kind of support.
It would be unwelcome if the Government's amendment, as we mentioned on Report. was interpreted by local authorities as giving official approval to a practice which is unlikely to meet the young person's needs, and which may well leave him or her exposed to a significant degree of harm.
On Report, the noble Baroness, Lady Andrews, outlined that it was not necessary to curtail the power of the local authority to provide accommodation for lone children under Section 17 to ensure good practice because, first, the framework for the assessment document would ensure that the child's needs were fully explored. We disagree with that because many young people who present to social services in need of urgent accommodation, for whatever reason, may he given short-term accommodation in bed and breakfast and may never be subject to a full care assessment. Who will press the local authority to complete this task if there is no one looking out for the child's interests?

223
Children who have been in care for 10 to 12 years may resist "being taken into care" and the consequent loss of independence, because they want to make a life for themselves. With the greatest of respect to the Minister, such children would not be "taken into care" because they would already be "looked-after" by the local authority if they were still "in care". If they were not, they would be eligible as care leavers for leaving care support, including accommodation under Section 24, as amended by Clause 114.
The other argument is that children who had not previously been looked after, might not want to be "looked-after", with all that that entails, if all they really want is housing because they have left home. However, in our view they remain children in law for whom someone needs to be responsible. If the parents cannot be, for whatever reason, the state must. The framework for accommodation under Section 17 does not provide for that, but under Section 20 it does.
Where any such children are ready to move to semi-independent living with a need for only minimal, additional support, the possibilities for placement of looked-after children under Section 23 are sufficiently wide to enable the local authority to place them in "independent" living arrangements—for example, supported lodgings—while they are still looked after, so that the child is not left without formal protection; and, more specifically, has a named person to contact should he have need of advice and support. Once such children cease to be minors, they would be eligible for aftercare support under Section 24. However, the same would not be available if the accommodation is provided under Section 17.
Noble Lords on these Benches are concerned that the potential risks to many children opened up by the possibility of accommodation for lone children under Section 17 outweigh the potential advantages for a few independent children who, recently estranged from home, may prefer not to be received into accommodation. The key point is that if they are provided with housing under Section 17 rather than Section 20, no one will be responsible for protecting their welfare. As the largest group that is likely to be affected is asylum-seeking children, this may have disastrous consequences for an already vulnerable group of children. It cannot be right that the law fails to protect them, and even potentially discriminates against them, in this way.
Our amendment is intended to find the right balance between respecting the needs and wishes of children who are ready for independent living and ensuring that those who cannot live in their family environment for whatever reason are adequately protected. It clarifies that local authorities can provide accommodation for children with their families under Section 17, but prevents the local authority from housing children alone without social work support, as this would derogate from their responsibilities as a corporate partner.
I very much hope that this amendment receives widespread support in the House today and that, whether or not it is passed, the Government will assure
224
us that they share the concerns about the practice and will issue strong guidance to local authorities. I beg to move.
4.30 p.m.
Lord Northbourne: My Lords, I broadly support the thrust of this amendment.
Baroness David: My Lords, I believe that we still have a problem here. It is a matter that I raised previously. I hope, therefore, that the Minister will give a sympathetic response.
Baroness Andrews: My Lords, I am not sure that I can be quite as brief as the two previous speakers, but I shall do my very best. I am well aware of the situation as outlined by the noble Lord. As we debate these issues today, I am reminded that we discussed them in almost identical terms last week. The noble Lord and I have different views on the weighting as regards the question of balance about who we protect and what cost is incurred to others who may fall outside that band of protection.
I shall begin by reassuring the noble Lord that we entirely agree with the spirit of this amendment, and of the consequential amendment to Section 22 of the Children Act. We endorse the approach that children are best helped within their family. However, the amendments present a major problem; namely, one of balance between care and concern for children whose options will be reduced rather than addressed by what the noble Lord seeks to achieve. Perhaps I may offer the House an explanation.
During our previous debate, I sought to make four points. First, I sought to reassure the noble Lord that the amendments that had been made on Report in another place were precisely necessary to clarify beyond doubt the power of local authorities to provide accommodation for young people under Section 17 of the 1989 Act. That addresses the confusion raised by the state of case law. Secondly, I tried to reassure the noble Lord that Section 17, as amended, was not a licence for local authorities to avoid their responsibilities to provide for children who should have the protection of being looked after. I reiterate and emphasise the latter, because that is certainly the burden of what we believe. We do not want to see avoidance of Section 20. We want to see children being given the accommodation that is right for their age, for their condition, and for their needs.
Thirdly, I sought to explain that, if the amendment succeeded, the pendulum would swing to the other extreme and there would be no avenue open to local authorities under the Children Act, other than taking children into care. Fourthly, we tried to explain that the amendment, as drafted, would have a negative knock-on effect, because it would make it impossible for young people to be provided with accommodation on their own. I understand what the noble Lord said regarding 16 and 17 year-olds, but we must recognise that there are some youngsters of that age who may possibly have spent their lives in care, or who may, for whatever reason, be excluded from the family home

225
with no other relatives or friends with whom they can share homes, for whom this flexible form of accommodation available to the under-17s is most important.
I wish I could reassure the noble Lord on the most important point; namely, that there is a very positive and critical role for the framework as regards the assessment of children in need, and their families, as the basis for determining the sort of accommodation that is thought right for each child. The whole burden of the framework is addressed to the individual needs of the child and to the care that must be taken to assess the parenting capacity, the needs of the child, and the social and environmental situation in which they are growing up.
The noble Lord has reiterated and extended his concerns as regards asylum seekers. He also raised the question of age limits, with which I shall deal shortly. However, I hope that our original responses were reinforced in a letter sent to noble Lords that went into some detail on those points. Although I can assure the noble Lord that we have reconsidered the matter, I am afraid that our arguments have not changed in the week that has just passed, because the situation, as we see it, has not changed.
In the letter we sought to reassure the noble Lord, and the noble Earl, who is not now in his place, and addressed the issues that arose following concerns that Section 17 might have the effect of separating families, and those relating to the Home Office's Nationality, Immigration and Asylum Bill, which deals with such matters as failed asylum seekers who do not comply with removal restrictions, or those who apply for asylum late. I can assure noble Lords that Section 17 not only complies with Article 8 of the European Convention on Human Rights, but also enables local authorities to accommodate families together who might otherwise be split up. It provides greater flexibility and choice of provision.
In addition to the fact that Home Office Ministers will have taken advice about compliance with the ECHR, Section 17(3) of the Children Act 1989 states that services,
"may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare".
Again, I should stress that there is nothing in the existing law that prevents a family being accommodated. All the choices that the noble Lord addressed are possible. There is nothing in the legislation, as amended by this clause, that implies, or impels, the separation of children from their families. Therefore, the proposed amendment duplicates what is already possible with regards to accommodation.
The noble Lord raised the question of the lower age limit. It is worth reflecting that Section 20 of the Children Act specifies that looked-after provision must be made for children under the age of 16. It is very unlikely, for example, that a child of 13 would not be accommodated as a looked-after child. We must trust agencies to make the right decisions in that regard.
226
However, the real point here relates to 16 and 17 year-olds who have a very individual notion of what constitutes the right thing for themselves, many of whom are seeking independence.
During the debate on Report, the noble Lord raised the concern that differential treatment of children might bring about a breach of Article 2 of the United Nations Convention on the Rights of the Child—the right to equal treatment. Again, I reassure the noble Lord that the obligations that we have set out relating to the assessment framework, to which there is a specific reference, are the same for local children as for asylum-seeking children. Asylum-seeking children will not be disadvantaged; they must be treated the same as children born in the United Kingdom; otherwise, Article 2 issues may arise.
I return to the framework and the emphasis that it places on the wishes and feelings of young people. We do not believe that it would be helpful to restrict the ways in which local authorities can provide help. Our amendments to Section 17 of the Children Act 1989 are designed precisely to clarify that those choices shall be available.
If accommodation under Section 17 were not available, young people could only be provided with accommodation under Section 20. In consequence, they would have to be designated as looked-after children. That is the real problem for children at that transitional age. That is why we were careful in another place to include the specific and consequential amendment to Section 22. That ensures that providing accommodation under Section 17 does not mean that a child became looked-after. Amendment No. 22, the consequential amendment, reinforces Amendment No. 21, so the answer to it must be the same. It causes the same problems.
Let me explain briefly what removing local authorities' ability to choose to provide that intermediate form of accommodation means. At present, given the lack of certainty caused by case law, the Local Government Act 2000 enables local authorities to provide help with finding and/or funding accommodation, rather than providing accommodation themselves. Although that is indeed one route for a young person who is capable of operating independently, the local authorities' problem is that they often cannot find landlords who are willing to take on such young people.
So if providing accommodation becomes a problem, helping young people with finding accommodation or with funding it is obviously easier. By restoring the provision in Section 17, we want to ensure that councils have greater flexibility to use their own accommodation when suitable. I should also point out that councils' reliance on bed-and-breakfast accommodation—which is dreadful and inappropriate accommodation that can often put children at risk—becomes less likely if councils have the flexibility to use their own accommodation. So that is a positive response. We hope also by providing accommodation to stop some of the drift and even disappearance of some young people.

227
The noble Lord, Lord Clement-Jones, also raised the issue of practice and to what extent we could guarantee that practice would be appropriate. Each child who is assessed under the framework may or may not need to be put into care or to become looked after. In the framework for assessment, the determining factor is what is right for that child. The social workers responsible for the child will be responsible for that decision.
When we announced increased funding for social services for children, which is the source of funding for assessment, we also made it clear that we would not be doing so unless we thought that we could guarantee better performance on councils' part. That is the condition attached. Not only do we have in place in-year monitoring as part of comprehensive performance assessment; we are working with all of the key interest groups to develop it further.
I hope that I have been able to reassure the noble Lord, Lord Clement-Jones, that we understand his concerns. The amendment would cause more problems than it would solve. A combination of Section 17 with the options in place under the framework for assessment will help to solve the problem.
Lord Clement-Jones: My Lords, before the Minister sits down, what she said is in many ways extremely illuminating, but what guidance will incorporate the considerations that she has just discussed? That cannot be done simply by performance management, can it?
Baroness Andrews: My Lords, I do not want to mislead the noble Lord. I shall take advice on that and write to him. I shall provide the precise information for him and for the rest of the House.
Lord Clement-Jones: My Lords, I thank the Minister for that. I also thank her for taking considerable trouble to take us all through the considerations that apply, the different sections of the Act, how they can be used and the intention behind the amendments to Section 17. However, as she is well aware, we on these Benches are fearful, especially in the context of children who are asylum seekers, about what will be the impact of the ability to use Section 17. Simply relying on the framework for assessment or performance management in the manner that she described is inadequate.
We are at Third Reading; we are late down the road on this matter; but the Minister still cannot tell me whether guidance may be issued about the precise use of those sections and how they interplay. I can well understand the need for flexibility but, given how the Act works, children being looked after do not constitute an onerous burden—certainly not equivalent to that of children being in care. If children have been in care, after 16 they can be accommodated under Section 24. If they are younger than 16, they really should be looked after.
228
I am in a difficult position here, but I hope that the Minister can prevail on her ministerial colleagues and on her department to issue guidance on that matter. It would not be right to press the amendment now, but I hope that she will use her best efforts to ensure that the interlocking of those different sections is well understood by local authorities—or at least that there is a sporting chance that they are understood.
Baroness Andrews: My Lords, I assure the noble Lord that we shall give the matter serious consideration.
Lord Clement-Jones: My Lords, I thank the Minister for that positive reply. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 22 not moved]
4.45 p.m.
Clause 119 [Advocacy services]:
The Earl of Listowelmoved Amendment No. 23:
Page 71, line 8, at end insert—
"(6) In making arrangements under this section, the local authority shall have regard to the principle that the child or young person should be offered the assistance of a representative of their choice; and this shall include the right to have an independent advocate, who shall be, as far as is practicable, independent of the local authority which is responsible for the child or any person who is involved in the investigation or adjudication of any representation under section 26 by or on behalf of the child or young person.""
The noble Earl said: My Lords, the effect of my amendment is to ensure that advocacy services for children in care and care leavers should as far as possible be out of house—independent of the local authority. The amendment allows local authorities the flexibility that the Minister is so concerned to give them. They are urged only to,
"have regard to the principle",
that a fully independent advocate should be provided. If there is no such service locally, the local authority is not bound to avail itself of one.
It is vital that children in care and care leavers have an option—a choice of someone to advocate for them who will put their interests first. With respect to the Minister, it is not good enough for advocates to have considerations other than the interests of the child. It is not good enough that such people should be employed by the same local authority in which the child is in care, or from whose care it has come—even if that employer is at some remove from the child. Someone whose promotion may depend on his relationship with that local authority is someone whose interests are closely involved with the authority.
Out-of-house arrangements are not absolutely independent. They are normally local authority-funded. However, such agencies have been known to pursue their concerns about a young person without remuneration. They do not suffer from many of the same conflicts of interests as do local authority employees.

229
I regret that my amendment is poorly worded. I apologise for that; my legal adviser is currently abroad. But I hope that the Minister will find the spirit of my amendment acceptable.
Advocacy services for children, introduced to legislation for the first time in the Bill, are an important step forward. I, and all those involved in the field, appreciate the efforts of the Minister and Government in this area. However, I regret to say that the services will be flawed if there is not the vital sufficiency of independence; otherwise, I am concerned that the proposals will fail to fulfil their potential. I beg to move.
Baroness Howarth of Breckland: My Lords, throughout the debate, on all sides there has been a real commitment to listening to children and a deep concern for their welfare. The noble Earl, Lord Howe, expressed that earlier. Indeed, the inclusion of the clause, which has been widely welcomed, is a reflection of how the Government have responded to troubled children who need help to speak out about their care and concerns. Therefore, in supporting my noble friend's amendment, I want to acknowledge how far we have come and also to encourage the Minister to take what might be one further small step for the Government but a leap for the rights of children.
My personal links through Childline and the National Youth Advocacy Scheme have given me the opportunity to hear directly from many young people in care. As we have said before in this Chamber, their difficulties are varied when wanting to make representation. They range from arguments about rules, to their rights not to be moved from one placement and placed into another, thus losing all contact with friends and schools, to allegations of bullying and indeed abuse.
Many, however, do not want to invoke the full complaints procedure. They need someone to help them negotiate through difficult patches. Others need immediate removal from their situation to protect them. But what they all need is a trusted adult alongside them—someone they see as representing their interests, and no others, to see them through the process. More than anything else, these young people have said that they want that to be independent of the system or the individuals about whom they are complaining.
I have no doubt that there are many good social workers and legal workers in local authorities who could do that, but is it a right principle? There are real problems about conflict of interest. I have thought through whether reciprocal arrangements would work, hut, as the Minister will know, the panels of guardians ad litem ran into real difficulties because of differences between local authorities attempting to ensure their independence. From that, we gained the independent group of CAFCASS.
Within a local authority, responsibility for a client and an employer can come into conflict. As a former director of social services, I have experienced that to a great degree. The Minister might like to consider how
230
an advocate employed by a local authority would take forward an application for a child under human rights legislation when he has signed contracts binding him to abide by the policies and procedures of his employing authority?
There was an attempt at independence in the context of the Children Act complaints procedure where an "independent person" means independent of the local authority. But the role of these individuals is severely curtailed to consideration of the issues without making any investigation or necessarily seeing the child. Let us take it the whole way forward and have real independence.
While anecdote is not evidence, it is worth reminding ourselves of what can happen if the child does not have independent representation. Perhaps I may tell your Lordships of a 14 year-old who made a complaint on behalf of 11 children in her children's home. The little ones were so terrified at night that they were sleeping under the local bandstand. The regime was oppressive but did not stop the severe bullying between the young people.
The young woman received a letter from her local authority legal department, not in child-friendly terms, telling her to present herself at the town hall at a given date and to "explain herself". The letter went on to state that although the local authority lawyer would be present, together with senior members of the administration, she had no right to legal representation. What the local authority did not know was that she had contacted an independent advocacy scheme and arrived with an advocate and a lawyer who finally found 22 allegations against the local authority. What happens to young people who have not found independent help in circumstances such as those? It was clear that this local authority had no intention of giving her independent advice.
I know that the Minister believes in letting local authorities get on with their job. It is a view I largely share. But is he aware that the fastest growing group of referrers to independent agencies are local authority social workers who feel they can do no more within their own system? I also know that the Government are not keen on central schemes. But is the Minister also aware that, as I understand it, there were discussions with the Department of Health and the Association of Directors of Social Services when a scheme was considered to top-slice—I realise that that is not a nice word in local authority terms—a tiny amount of funding from local authorities properly calculated to ensure that any child in care could choose his advocate and know that the funding would he available?
It is a kind of insurance fund for each child and it would go with the child, but of course not all children would use it. It would also save the voluntary sector having to bill 151 separate authorities. In the long run. it would therefore be cheaper. Would the Minister consider looking at such a scheme again, if only at somewhere to run it as a pilot?
Perhaps I may ask the Minister one final question of clarification of his reply on 23rd October. He said:

231
"We want to ensure that the assistance provided is not influenced by the local authority. We believe that this is best done by ensuring that no one with a direct interest in the outcome of the complaint is involved in the provision of assistance to the child or young person".—[Official Report, 23/10/02; col. 1391.]
Does the Minister not accept that in a local authority there is a clear line management all the way through to the director and, through corporate working, to the chief executive? Ultimately, that will be with the members, particularly in an era of cabinet working where one member is likely to be responsible for these services. How will the Minister ensure that there is no one with a direct interest involved in investigations in these circumstances?
If as an adult one is seeking advice or help for what one sees as an injustice, there is a wide range of independent services to which one can turn. I urge the Minister to offer our most vulnerable children—children in care—at least this one.
Baroness Howe of Idlicote: My Lords, I support the amendment tabled by my noble friend Lord Listowel and what was admirably said in addition by my noble friend Lady Howarth. The most important point made in this debate and previously was the growing need of such children—the most vulnerable and least achieving of the children in our society—to have an independent voice.
We already know that a number of the children have begun to be more vociferous and organisations such as the Advocacy Consortium are already doing some work in this respect. I like the idea that some central funding would totally remove the charge of lack of independence because a local authority was paying, however supposedly independent the organisation undertaking the work.
Whether that is possible or not, we must have a guarantee from the Minister that these services will be available to children in care. Many of them have been in care for a long time and by definition they will feel intimidated about making a complaint against those who are in charge of them. Noble Lords may remember that I referred to the Children Act under which there was a plan to have a "friend" for every child who had been in care and was not in contact with the family. Whether or not that plan can ever be resurrected, an organisation to which these children can go must be established. Childline is one of the most effective voluntary organisations and has been of huge practical help to young people, but the danger that these children are in—often, sadly, when they are in local authority care—cannot be overstated. I hope that the Minister will feel able to give a greater guarantee than he has in the past.
5 p.m.
Earl Russell: My Lords, I congratulate the Minister on what he has already done about advocacy, but he understands well enough that progress is incremental and that a parliament is an assembly of Oliver Twists. Therefore, I do not think that he will take it personally if we ask for more.
232
The principle of conflict of interests, referred to by both the noble Earl, Lord Listowel, and the noble Baroness, Lady Howarth, is crucial. The local authority to which the noble Baroness referred, which summoned a girl to appear, telling her that she had no right to legal representation but that the local authority lawyer would be present, was acting as judge and party in its own court. Therefore, as I understand it, it was in breach of the principles of natural justice and liable to judicial review. It might have found that a great deal more expensive than allowing the child a decent advocate.
We need a further definition of what is "advocacy". I have experience of the problem. I once represented a student of mine in a situation which appeared to put his interests in conflict with those of the college. I am glad to say that, in the end, appearances proved deceptive, but they were the appearances at the time. As I served a very good college, I had the great fortune to receive a note in writing, under the hand of my head of department, stating that he understood that my duty was to serve the interests of my student regardless of those of the college, as long as I understood in return that the department's duty was to both the students concerned as they were both members of the department.
But they do not all come like that—and it is because they do not all come like that that this precaution of legislation to prevent conflicts of interest is vitally important in terms of justice. When one thinks of the possibility of judicial review, it is vitally important to the saving of local authorities' money—and that needs to be done, too.
Baroness Noakes: My Lords, I support the intent of Amendment No. 23. Last week on Report I welcomed the Government's amendment, which inserted Clause 119, in place of my amendments designed to introduce independent advocacy. However, I said that the welcome was tempered by concerns about independence, those concerns being shared by a number of noble Lords. We could not see that there was genuine independence from the local authority, only that the Government were promising case independence. The House should be grateful to the noble Earl, Lord Listowel, for tabling the amendment, which allows us to debate again the importance of independence.
The amendment does not require that all advocacy services are independent but that a looked-after child should be able to choose his or her advocate and, so far as is practical, to choose an advocate who is independent of the authority. It is thus a very modest amendment. I am not sure that its drafting is entirely right, but that is not a point for today.
I hope that the Minister will be somewhat more reassuring than he was on Report about the Government's commitment to the independence of advocacy services. At that stage the Minister seemed to say that it would be acceptable for an authority to provide only in-house advocacy services. I do not believe that that is good enough. A local authority may find it impossible to contract with an outside advocacy

233
provider, but I doubt that that will ever be the case. If that were to be the case, I concede that the provision of in-house advocacy would be better than none. However, in practice, there should always be the option available to the authority to arrange for some kind of outside and independent advocacy services.
I shall listen very carefully to hear whether the Minister states that the regulations will enshrine both choice for the child and proper independence wherever possible. I hope that the Minister will not put the freedoms of local authorities above the interests of this vulnerable group of children.
Lord Hunt of Kings Heath: My Lords, noble Lords—particularly those who took part in the debates on the Children (Leaving Care) Bill and the Health and Social Care Bill—will know that it was with great pleasure that I was able to bring forward the government amendment on Report. All noble Lords will agree that it is a very great advance.
I recognise the description of the noble Earl, Lord Russell, of the Oliver Twists in the House. I have learnt that noble Lords are usually not satisfied with whatever the Government bring forward—that is fair enough—and I understand the points that have been raised about independent advocacy. However, we should not underestimate the role played by a number of local authorities in showing how advocacy can work effectively. That is why I trust local authorities to take this matter forward.
Unfortunately, the noble Baroness, Lady O'Neill, is not in her place, but I was struck by the theme of her reflections on the whole question of trust. As someone who came into public life as a member of a local authority, I uphold the principle of placing trust and responsibility in local authorities. We have an ability to do that here. Many local authorities will choose to use external organisations to provide such advocacy, but some will wish to provide it in-house. The publication of our advocacy standards, the consultations that we will undertake and the regulations that we will bring before both Houses will enable us to ensure that, where a local authority has decided to provide services in-house, those services are effective and meet the problems that a number of noble Lords have suggested might occur with an in-house service.
Let me address the detail of the amendment and, first, the question of choice. I should say to the noble Earl, Lord Listowel, who has great experience in this area and is a champion of children and children's rights, that I fully agree that giving a child or a young person a choice is important. We should reflect on the fact that we intend to use the regulation-making power in Clause 119(3)(b) to set out that the child or young person should be provided with choice in relation to who should be appointed to act as his or her advocate.
I therefore do not feel that it is necessary to set out on the face of the Bill that the child should be provided with a choice. However, the fact that we intend to do this in regulations, and that the regulation-making
234
power enables us to make quite detailed provision in relation to this issue, meets the point raised by the noble Earl.
As to the remainder of the amendment, as a number of noble Lords have suggested, there are some technical flaws in its wording. It is not clear exactly how it would work. The amendment provides that when the local authority is making arrangements for the provision of assistance to children and young people, it shall have regard to the principle that the child or young person should be offered a choice of representative. However, it does not place any kind of duty on the provider of the service to ensure that in a specific case the child has a choice. Given that the second part of the amendment is directed towards requiring the service to be independent of the local authority, the local authority does not have the input into appointing the advocate which would be required for it to ensure that the child or young person has a choice.
In addition, we must face up to the fact that there are bound to be occasions when the child's choice of advocate is not suitable to act on his or her behalf. To what extent should the local authority or the advocacy organisation running the service be tied to ensuring that the child or young person gets his or her choice? I do not have easy answers to that point. There needs to be full consultation. These matters are finally best answered through regulations. The national advocacy standards also stress that choice is important in the provision of advocacy services.
I turn to the question of independence—an issue that we discussed at some length on Report. The word "independent" is not a term with any precise meaning. The amendment seeks to give it meaning in this context. It does so in two ways. First, it sets out that the advocate,
"shall be, as far as is practicable, independent of the local authority".
Secondly, it sets out that the advocate shall be independent of,
"any person who is involved in the investigation or adjudication of any representation".
I shall take the second point first. A number of noble Lords commented on it specifically. I re-emphasise that the power that we have taken in subsection (3)(a) of new Section 26A to be inserted into the Children Act enables regulations to be made to ensure the independence of the person providing the advocacy to the child or young person. I stated to the House our clear intention that the regulations made under subsection (3)(a) would provide that the advocate must not be the subject of the complaint; be involved in the line management or case management of the case; or be involved in the investigation or consideration of the complaint. That goes further than what is set out in the amendment, which does not set out that the advocate must not be the subject of the complaint or be involved in the case management or line management.
The Government will be consulting on the regulations. That will enable us to take a view from all those involved in advocacy services and children's

235
rights services about what other measures might be appropriate to include in regulations in order to secure independence. Again, the regulation-making power gives us scope to make detailed provision and to respond to the concerns of practitioners and to changes that may be required over time in the light of experience.
The other provision in the amendment relating to independence is that the advocate shall be,
"as far as is practicable",
independent of the local authority? What does independence mean? The fact that the amendment needs to use that phrase reflects the difficulty of defining what is meant by the term. "Independent" can have different meanings in different situations. What is required in terms of independence may be viewed differently from different perspectives. Arguably, the service will never be entirely independent of the local authority because it is the local authority that will be funding the provision of the advocacy service.
The noble Baroness, Lady Howarth, suggested that we did some top-slicing and created a national service. I do not believe that we ought to go down that route. Local authorities are statutory organisations. It is their responsibility to ensure that proper advocacy services are in place and, at the end of the day, they should provide the funding. Out of the extra resources that local authority social services will receive over the next three years we believe it appropriate that they should fund such services. The noble Earl, Lord Howe, is probably right. It is certainly our experience in the National Health Service that patient advocacy and liaison services are having a very positive impact in dealing with issues as they arise, and quickly, before they are allowed to fester. It is in the best interests of local authorities to have effective advocacy services, whoever runs them, in operation.
We must not confuse "independent" with "separate". I return to the point that I made earlier. There are many examples of excellent in-house advocacy and children's rights services being run by local authorities with those services located and managed separately from the organisation. I should regret the fact, if the House decided to accept the noble Earl's amendment—which I accept comes from the best of motives—that it would mean forcing 40 or so local authorities to dismantle their existing schemes, preventing children and young people from working with local advocates with whom they have built up a good relationship.
We must also remember that, very often, the consultation that we have had with stakeholders has emphasised to us the importance of a variety of schemes being provided. I refer not merely to services by national organisations. It has been suggested that where a local authority, for instance, has a much wider programme of encouraging the participation of young people, there is every advantage in advocacy not being separate from that but being part of the service that is provided across the range of local authority provision.
236
The challenge for me is to ensure that this will work. If I am insisting that local authorities be shown some discretion, I must assure this House that we shall make sure that that works out okay for young people.
On Report, I explained that the national advocacy standards will build on the regulations to inform the way in which independence works in practice. The standards set out the core principles of how we want councils to provide and commission advocacy services. We want to ensure that the child or young person knows that the service will not be influenced. We want children and young people to be fully confident that advocates are acting exclusively on their behalf and have no potential or conflicting interest. I have no disagreement with any noble Lord who has spoken on that matter. I should not have brought forward the amendment on Report had I thought that by giving some discretion to local authorities I should be setting up a situation whereby those local authorities would inhibit that advocacy from operating effectively.
We will ensure that local authorities implement this provision in a sensible way, according to the standards that we set out, and we shall performance-manage them. I urge noble Lords, who know how keenly I feel about advocacy, to allow for some local authority discretion.
5.15 p.m.
Baroness Howe of Idlicote: My Lords, before the Minister sits down, perhaps I may query one aspect of his remarks. It seemed to me that there was quite a lot of support for the intentions behind the amendment, if not for the wording—the Minister has fairly pointed out that some areas could be tightened up. Am I right in understanding him to say that there may well be some local authorities that would want exclusively to run the advocacy services, and that he would be happy with that—that is, if there was not a chance for some independent, albeit approved, group of people such as the Advocacy Consortium to be involved as an alternative, as a choice for the young people concerned? If that is what he means, is he quite certain that it fits within the requirements of human rights legislation in terms of transparency so far as concerns independence?
Lord Hunt of Kings Heath: My Lords, the Government would not take any action that they believed to be outwith human rights legislation. My argument is this. I raised the issue of the technical deficiencies in the noble Earl's amendment. On top of that, I have a substantial difference with the noble Earl. First, it is essentially appropriate for local authorities to make their own decisions about independent advocacy in the context of the national advocacy standards. Secondly, they can decide to run those services in-house. The Government want advocacy to work effectively, and to ensure that, we want to allow local authorities that run successful advocacy services to be allowed to continue to do so. However, we will keep a close eye on the general performance of local government in this field. We

237
would not hesitate to intervene if we came across local authorities that had not established effective advocacy services.
Lord Northbourne: My Lords, before the Minister sits clown, he did not answer clearly the question of the noble Baroness, Lady Howe, as to whether it is intended that some local authorities should run advocacy services to the exclusion of any other kind of advocacy for the children concerned.
Lord Hunt of Kings Heath: My Lords, we will consult on regulations. We want local authorities to have discretion in this area; they should be shown flexibility. But the safeguards are the national advocacy standards, which we will performance-manage to ensure that local authorities provide effective advocacy services.
The Earl of Listowel: My Lords, I thank the Minister for his response, and everyone who took part in the debate. The House clearly wishes the Minister to take great care in the implementation of the provisions and to watch over the process to ensure that the advocacy provided is independent.
I welcome what the Minister said about consultation. He emphasised that there would be extensive consultation before implementation of the regulations. I welcome his assurance that he will ensure that advocacy services will be provided. Given those assurances, and recognising the important step taken by the Minister and the Government in putting advocacy services on the face of the Bill for the first time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Barkermoved Amendment No. 24:
After Clause 120, insert the following new clause—
"PRIVATE FOSTERING
After section 66(4A) of the 1989 Act there is inserted—
"(4B) The Secretary of State may by regulations make provision as to the circumstances in which local authorities may oversee the registration of private fostering.""
The noble Baroness said: My Lords, not long ago the noble Earl, Lord Howe, commented that it had been enjoyable to work on this Bill, and I agree. There has been much intensive, heartfelt discussion and much co-operation throughout the House. The Minister frequently listened to the points made and agreed to them. There has also been much cross-party agreement, and, perhaps more interestingly, huge disagreement within parties on some issues. This amendment is the final substantive area for discussion—what a brilliant example of co-operation on which to finish. Many noble Lords will regard this as the most extraordinary amendment, and, on reading the text, may have believed that there was a mistake, and that the amendment should have been tabled in the Minister's name. It could have come from his own pen, but it is mine.
We have discussed private fostering several times, and many noble Lords were present last week when we returned to the subject yet again. Over the months of
238
discussion, we have established that there is unanimous agreement that the issue is important. We have agreed that the complete lack of regulation of private fostering must change. We have not agreed on exactly what should be done or on the urgency of the situation.
On Report, the Minister made some important points in respect of the amendments tabled, which I took on board. He talked about the current review, which is almost complete, and the need for the Government to take into account the views expressed as part of that consultation. He mentioned the forthcoming report by the noble Lord, Lord Laming, into the death of Victoria Climbié. We need to be mindful of the recommendations of that independent report. He talked about the difficulties of determining exactly how any regulation of private fostering should work. He also talked about the difficulties of dealing with details such as what to do about language students, and the age at which children should be subject to regulation if they are privately fostered.
The Minister made a powerful and persuasive case that Ministers need flexibility in this respect. That is why the amendment in my name would give the Minister the widest and most permissive regulatory powers. We on this side of the House usually rail against such measures at considerable length. However, I have accepted that that is what is needed in this case.
Why does the measure need to be included in this legislation? I return to the point that this Adoption and Children Bill is the correct legislative home for measures on private fostering. After the publication of the Laming report, it is likely that there will be yet another set of arguments in favour of a registration scheme. Every report on the subject for the past 30 years has said that registration is important. I strongly believe that the primary legislation needed to enable a registration scheme for private fostering to come into play should be this Bill; otherwise we will have to wait until an unspecified future date when another suitable Bill can be used as a vehicle for it. By that stage, we would have lost valuable time in dealing with the last unregulated area of childcare.
For those reasons, I believe that it would be right to include the provision now. In doing so, the House would not be pre-empting the Laming report, nor would it be acting imprudently. I strongly believe that we should not wait for yet another childcare crisis to happen, to which we would have to react by legislating very quickly.
For all those reasons, I believe the amendment is the right way to go. It places no requirement on the Minister. It is a permissive power that can be used at any time. The history of regulation on adoption legislation is remarkable. Adoption legislation containing regulatory powers has been passed over the years, but some of those powers were not brought into play until 15 or 20 years later. Indeed, some of them were never used, such as those in the 1940s legislation.
I think the amendment is wise and sensible. It is a concession to the point that the Minister raised last time. I beg to move.
5.30 p.m.
Earl Howe: My Lords, I have supported the noble Baroness on the issue on two previous occasions. I am very much in sympathy with her wish to seize this legislative opportunity on a matter of such importance. We have all acknowledged in earlier debates that children who are privately fostered are some of the most vulnerable in our society. We cannot be confident that there will be another such legislative opportunity in the foreseeable future. I support the amendment.
Baroness Howells of St Davids: My Lords, although I have not spoken on the issue, I have followed the Bill closely. I support the amendment. I have spent some time consulting on the probability of us not taking this small step at this time. The more we invite or introduce new cultures into the British system, the more we have to realise that some people do not see fostering in quite the same way as we do. Some people think it is easy to send their child over to stay with an aunt, a cousin or somebody else. The local authority must have a means of registering people who do such informal fostering. If it does not have such a means, it cannot be blamed when things go wrong. This is a very small clause to deal with a very important issue. Hundreds of children are coming into this country with no protection. I should very much like the Minister to agree to it.
Lord Hunt of Kings Heath: My Lords, I have always recognised that, without question, something needs to be done about private fostering. I hope that noble Lords will acknowledge that I have recognised the concerns that have been expressed throughout the passage of the Bill. I commend the noble Baroness, Lady Barker, for always trying to meet my objections and coming forward with a new amendment. I accept that she has cleverly tried to give hugely wide permissive regulatory powers to meet almost every objection that I have raised.
However, I have grave doubts about giving such wide regulatory powers before the policy on what is to be done is sorted out. By making those powers so wide and so vague the noble Baroness may, inadvertently, detract from the focus that is required.
I recognise the concern expressed by the noble Earl, Lord Howe, that there will not be a legislative opportunity in the future once the policy is decided. Noble Lords will know that we are engaged in substantial discussion with stakeholders on what is to be done. Ministers are clearly always wary about giving any promissory note about future legislation. I shall simply repeat my earlier comment that, although legislation on adoption comes round fairly infrequently, legislation relating to children and children's issues is not infrequent. If it is decided that legislation is required, of course the Government will look for the earliest opportunity to bring it before your Lordships.
We have a problem. The Children Act 1989 provides a legal framework for notification that requires the private foster carer and the person with parental responsibility to notify the local council of the
240
proposed private foster care arrangements. Under that framework, once the local authority knows about the impending arrangements, the Children Act requires the authority to satisfy itself that the welfare of the child is being satisfactorily safeguarded and promoted by others by supervising, regulating and advising in respect of the private placement. The local authority is required to visit at specified intervals and to report on those visits.
The local authority must satisfy itself that the foster parents, household and accommodation are satisfactory. It has the power to impose requirements or, if there are serious concerns, to prohibit the fostering arrangement. Common types of private fostering arrangements include the practice of African children being sent to England to benefit from a good education, with the expectation of improved life chances for the child. Many teenagers move in with the parents of boyfriends or girlfriends following family rifts and others stay with school friends or neighbours following family disagreements, separation or divorce. Many children come to language schools and are accommodated by host families. Children come from Chernobyl or the Balkan countries for extended holidays to learn, to have specialist health care and for recuperation.
There have been concerns about all that for some time. My department has taken a number of measures and actions to increase the awareness of the general public and to improve local authority activity on private fostering. As a result of that and of a recognition that more needs to be done, we have instigated a review of the current arrangements surrounding private fostering. That review is still in progress. It is focusing on whether the existing arrangements in Part IX of the Children Act 1989 and its associated regulations are robust enough to protect vulnerable children living away from their parents. The review seeks to determine how appropriate the current framework is and how it could be improved through a number of options. We have clear in our minds that any changes have to get the right balance between safeguarding children and recognising parental responsibility across the range of children who are presently privately fostered.
We have investigated the current notification and assessment process, the thresholds of intervention and the possibility of discrete standards. The review has looked at what registration would mean for private fostering, how the awareness of private fostering could be increased, especially through the work of other professionals, and whether different groups of children ought to be handled differently.
We have involved a wide range of stakeholders and listened carefully. British Council meetings have included other departments with an interest, including the Department for Education and Skills, the Foreign and Commonwealth Office, the Home Office and the Office of the Deputy Prime Minister. This is a thoroughgoing review. We also need to take into account the findings of the Climbié inquiry, which may well make recommendations that we need to consider.

241
I have already recognised that the noble Baroness is seeking to be helpful in drafting an amendment that would give the widest possible discretion to set up a registration system.
I would, however, just caution the House: there is no easy and straightforward answer to address all the issues to the right level and extent. I doubt whether we could, as the amendment suggests, truly mop up all of the issues in one general, unspecific provision in this legislation. Indeed, given noble Lords' attitude to giving wide and unspecified powers to the executive, I doubt whether this provision could really commend itself to the House.
Surely it would be more sensible to use the findings of the review properly. The very reason for instituting the review was to avoid a knee-jerk reaction and ensure a proper and reasonable response to the concerns. Of course we may need additional regulating power—but for what? The amendment is certainly not clear about that. Indeed, it seems to propose nothing more than powers that are already available. Private fostering is already regulated—although there is general agreement that that is not working—and the circumstances are already defined in the Children Act.
The amendment states that local authorities "may oversee" the regulation of private fostering, which is a wide provision. I should think that the last thing that anyone, including the noble Baroness, Lady Barker, would want is alaissez-faire approach to this issue. Children's safety is important and we must have legislation that specifically requires local authorities to perform their duties.
I do not seek to criticise the noble Baroness, and I understand completely why she has moved this amendment. I think that she will understand that I very much agree with her sentiments. Action on private fostering needs to be taken, and it is clear that the current regulatory system is not working effectively. However, although I do not want to go over ground that we covered on Report, a number of very difficult issues remain to be decided before we can confidently produce legislation. For that reason, I hope that the noble Baroness and other noble Lords will accept that, although I cannot recommend accepting the amendment, the Government are as exercised as she is to ensure that we sort out this problem for the long term.
Baroness Barker: My Lords, it will come as no surprise to noble Lords to hear that I accept that the Minister and I largely agree on this issue. I know that he shares my concern that the current system is clearly not working. I also accept that this amendment is not the definitive word on the regulation that is necessary to make private fostering safe. The amendment would, however, do two things. First, it would give the Government permissive powers to oversee the regulation of a registration scheme. The Minister described the position in private foster care. Currently, however, local authorities have only reactive powers. They can prohibit people from continuing to care for a child only when they have sufficient evidence that something has gone wrong. They have absolutely no
242
power to prevent unsuitable people from becoming private foster carers in the first place. That is a key distinction.
I have no wish to revisit our recent lengthy debates on the issue. However, I know that the Minister shares my concern that, as evidence currently being gathered shows, private fostering is changing from an informal agreement between relatives and members of the extended family to something much closer to a commercial transaction. That is the key impetus for our desire to give local authorities the power to stop unsuitable people from becoming private foster carers in the first place.
Like the Minister, I do not like the breadth of the proposed powers. However, I do not believe that any of the objections which he raised cannot be met by the wide powers in this amendment.
Lord Hunt of Kings Heath: My Lords, although the noble Baroness criticises the current legislation—and by implication the decision of local authorities not to implement it—Amendment No. 24 does not oblige local authorities to register. The amendment's exact terminology is that local authorities "may oversee"; they would not be obliged to register. I understand what the noble Baroness is seeking to do. She is trying to make a provision that is sufficiently wide to enable the Government, once we have concluded our review, to legislate through regulation. My own view is that, if there is to be a substantial change in policy, it should be done through primary legislation. However, I also believe that, by making the power so wide, the noble Baroness is detracting from the ability to require local authorities to take action. I therefore think that there is a genuine drafting problem here.
Baroness Barker: My Lords, it is extremely interesting to hear the Minister, for once, making the type of argument that we on this side of the House have been making week in and week out. Tomorrow, therefore, some of us will probably not only read Hansard but frame it.
There may a problem with the drafting of my amendment, but the Government still have an opportunity to change it and toughen it up. As I said, I do not think that any of the objections that the Minister raised cannot be dealt with by the amendment itself. I do not doubt that future legislation will address children's issues. However, as I have said time and again for 30 years, we have known about this issue but not satisfactorily tackled it. Although I do not think that my amendment is the answer, we can, by signalling our intention to move the issue up the agenda before publication of the Laming report, strengthen the hand of those who seek an answer.
I am very sorry to end on this note because the Minister has listened and been extremely generous in most of his responses to our points. This time, however, I do not find his arguments compelling. I should therefore like to test the opinion of the House.
5.48 p.m.
On Question, Whether the said amendment (No. 24) shall be agreed to?
Their Lordships divided: Contents, 55; Not-Contents, 138.

Division No. 1

CONTENTS

Addington, L. [Teller]

Mackie of Benshie, L.

Avebury, L.

Maclennan of Rogart, L.

Barker, B.

McNally, L.

Beaumont of Whitley, L.

Maddock, B.

Bhatia, L.

Mar and Kellie, E.

Bradshaw, L.

Methuen, L.

Carlile of Berriew, L.

Newby, L.

Chan, L.

Northover, B.

Clement-Jones, L.

Perry of Walton, L.

Dahrendorf, L.

Phillips of Sudbury, L.

Dundee, E.

Prashar, B.

Falkland, V.

Razzall, L.

Geraint, L.

Redesdale, L. [Teller]

Goodhart, L.

Rennard, L.

Greaves, L.

Rodgers of Quarry Bank, L.

Roll of Ipsden, L.

Hamwee, B.

Roper, L.

Harris of Richmond, B.

Russell, E.

Holme of Cheltenham, L.

Sandberg, L.

Hooson, L.

Sharp of Guildford, B.

Howe of Idlicote, B.

Shutt of Greetland, L.

Jacobs, L.

Stodart of Leaston, L.

Jenkins of Hillhead, L.

Taverne, L.

Kilclooney, L.

Thomas of Walliswood, B.

Laird, L.

Tope, L.

Lester of Herne Hill, L.

Walmsley, B.

Linklater of Butterstone, B.

Weatherill, L.

Livsey of Talgarth, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Crawley, B.

Ahmed, L.

David, B.

Amos, B.

Davies of Coity, L.

Andrews, B.

Davies of Oldham, L.

Archer of Sandwell, L.

Dean of Thornton-le-Fylde, B.

Ashton of Upholland, B.

Desai, L.

Barnett, L.

Dixon, L.

Bassam of Brighton, L.

Donoughue, L.

Berkeley, L.

Dormand of Easington, L.

Bernstein of Craigweil, L.

Dubs, L.

Billingham, B.

Eatwell, L.

Blackstone, B.

Evans of Parkside, L.

Bledisloe, V.

Falconer of Thoroton, L.

Boothroyd, B.

Farrington of Ribbleton, B.

Borrie, L.

Faulkner of Worcester, L.

Boston of Faversham, L.

Filkin, L.

Bragg, L.

Fyfe of Fairfield, L.

Brett, L.

Gale, B.

Brightman, L.

Gibson of Market Rasen, B.

Brooke of Alverthorpe, L.

Gordon of Strathblane, L.

Brookman, L.

Goudie, B.

Brooks of Tremorfa, L.

Gould of Potternewton, B.

Burlison, L.

Graham of Edmonton, L.

Campbell-Savours, L.

Greenway, L.

Carter, L.

Grenfell, L.

Chandos, V.

Grocott, L. [Teller]

Chester, Bp.

Hardy of Wath, L.

Chorley, L.

Harris of Haringey, L.

Christopher, L.

Harrison, L.

Clark of Windermere, L.

Haskel, L.

Clinton-Davis, L.

Hayman, B.

Cohen of Pimlico, B.

Hilton of Eggardon, B.

244

Hogg of Cumbernauld, L.

Nicol, B.

Hollis of Heigham, B.

Orme, L.

Howarth of Breckland, B.

Parekh, L.

Howie of Troon, L.

Patel, L.

Hoyle, L.

Patel of Blackburn, L.

Hughes of Woodside, L.

Pendry, L.

Hunt of Chesterton, L.

Peston, L.

Hunt of Kings Heath, L.

Pitkeathley, B.

Inge, L.

Ponsonby of Shulbrede, L.

Irvine of Lairg, L. (Lord Chancellor)

Prys-Davies, L.

Radice, L.

Islwyn, L.

Ramsay of Cartvale, B.

Janner of Braunstone, L.

Rea, L.

Jay of Paddington, B.

Rendell of Babergh, B.

Jones, L.

Richard, L.

Jordan, L.

Rooker, L.

Kirkhill, L.

Scotland of Asthal, B.

Layard, L.

Sheldon, L.

Lea of Crondall, L.

Simon, V.

Lichfield, Bp.

Smith of Gilmorehill, B.

Lipsey, L.

Strabolgi, L.

Listowel, E.

Symons of Vernham Dean, B.

Lofthouse of Pontefract, L.

Taylor of Blackburn, L.

Temple-Morris, L.

McCluskey, L.

Thornton, B.

Macdonald of Tradeston, L.

Turnberg, L.

McIntosh of Haringey, L. [Teller]

Turner of Camden, B.

Varley, L.

MacKenzie of Culkein, L.

Walker of Doncaster, L.

Mackenzie of Framwellgate, L.

Warwick of Undercliffe, B.

Mallalieu, B.

Wedderburn of Charlton, L.

Mason of Barnsley, L.

Whitaker, B.

Massey of Darwen, B.

Whitty, L.

Merlyn-Rees, L.

Wilkins, B.

Mitchell, L.

Williams of Elvel, L.

Monson, L.

Williams of Mostyn, L. (Lord Privy Seal)

Morgan, L.

Morris of Aberavon, L.

Williamson of Horton, L.

Morris of Manchester, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.58 p.m.
Clause 123 [Restriction on advertisements etc.]:
Lord McIntosh of Haringeymoved Amendment No. 25:
Page 72, line 34, at end insert—
"(6A) References to an adoption agency in this section include a prescribed person outside the United Kingdom exercising functions corresponding to those of an adoption agency, if the functions are being exercised in prescribed circumstances.
"Prescribed" means prescribed by regulations made by the Secretary of State."
The noble Lord said: My Lords, in moving Amendment No. 25, I wish to speak also to Amendments Nos. 26, 27, 28, 46 and 50. This group of amendments provides a clearer and more straightforward text than the current draft of the provisions they concern and provide a better foundation for regulations.
Amendment No. 25 concerns Clause 123, which restricts the publication of advertisements indicating that persons other than adoption agencies are willing to make arrangements for the adoption of a child. Clause 123 is designed to provide the most effective restrictions on adoption advertising in the United Kingdom. It is a UK-wide provision and makes

245
explicit reference to the Internet, so there can be no doubt that the Bill covers that medium. Given the nature of the Internet, it is difficult to restrict information that flows from a website hosted by an Internet service provider located in another country. We would seek the assistance of the authorities in that country if we had concerns for the welfare of children, or would apply for a derogation under the e-commerce directive, if the Internet service provider were located in a member state. We intend to provide for derogations through regulations made under the European Communities Act 1972.
If a person were to see information on the Internet and then act on it by bringing a child into this country for adoption, the Bill would provide us with the means to penalise them, if necessary. If they did not comply with the conditions in Clause 83, which provides restrictions on bringing children into the United Kingdom, they would face a penalty of up to six months' imprisonment or a fine not exceeding the statutory maximum or both. In the event that the case was referred to the Crown Court, they would face up to 12 months' imprisonment or an unlimited fine or both.
Amendment No. 25 inserts new subsection (6A) into Clause 123, which provides a regulation-making power for the Secretary of State. If he considers that a body outside the United Kingdom corresponds in its functions to a United Kingdom adoption agency—it may not be an adoption agency as such, as some countries may not have adoption agencies—and if it provides the necessary protection, he may use the power to prescribe that the body is, for the purposes of Clause 123, to be treated as a UK adoption agency. As a consequence, such a body would not be considered to act in contravention of Clause 123, if it were to advertise in the United Kingdom.
The amendment will make it possible for a body established in another country that corresponds, in the sense that I have described, to a UK adoption agency to advertise its services in the UK. That might be helpful to prospective inter-country adopters, who may, for example, be able to obtain information advertised or distributed in the UK, if such a body has been prescribed as corresponding to a UK adoption agency. By requiring that the body must correspond to a UK adoption agency, the Secretary of State must satisfy himself that such bodies are properly regulated in the country in which they are established. That condition is necessary to ensure that there are proper safeguards in place to protect the welfare of children. Amendment No. 26 is consequential on Amendment No. 25.
Amendments Nos. 27 and 28 relate to Clause 125, which provides that contravention of Clause 123 is an offence and sets out the penalties. The Government implemented the e-commerce directive through regulations that came into effect in August. The directive aims to remove obstacles to the growth and competitiveness of e-commerce in the European Community. It places an obligation on each member state to ensure that providers of information society services, such as Internet service providers, established
246
on its territory comply with its national law. Generally, each member state will be prohibited from restricting the freedom to provide information society services from another member state.
The directive also limits the liability of intermediaries, such as Internet service providers, to circumstances in which there is actual knowledge of illegal activity and corrective action is not taken expeditiously. The directive is binding on the United Kingdom, and we must ensure that the provisions of the Bill are compatible with it. We will take the necessary steps to ensure that the restrictions in the Bill are compatible with the e-commerce directive, by using a regulation-making power contained in the European Communities Act 1972. We are taking the same approach for other legislation now before Parliament, including the Tobacco Advertising and Promotion Bill and the Enterprise Bill. The amendments take the advertising provisions as far forward as is practicable.
Amendment No. 28 omits subsections that provide defences for electronic distribution of an advertisement or information in Clause 125. As amended, Clause 125 would provide that a person was not guilty of an offence under the clause unless it were proved that he knew or had reason to suspect that the clause applied to that advertisement or that information. We will ensure that the liability of Internet service providers is provided for in a way that is consistent with the directive in the 2(2) regulations.
Amendment No. 27 will remove from Clause 125 the reference to the distribution of electronic advertisements or information that is no longer needed.
Amendment No. 46 introduces paragraph 13A into Schedule 4. It is a free-standing transitional provision, which enables the Secretary of State to prescribe in regulations that the references to an adoption agency in current English, Welsh and Scottish adoption legislation include a particular body that, he considers, corresponds to an adoption agency in the UK. That would enable such a body to advertise without contravening restrictions on adoption advertising in England, Wales and Scotland.
Amendment No. 50 omits the reference in Schedule 5 to paragraph 13 of Schedule 4 and inserts a reference to paragraph 13A, which is to be inserted by Amendment No. 46. When Clause 123 comes into force, the transitional power will no longer be needed and will be repealed. I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringeymoved Amendment No. 26:
Page 72, line 35, after "(6)" insert "or (6A)"
On Question, amendment agreed to.
Clause 125 [Offence of breaching restriction under section 123]:
6 p.m.
Lord McIntosh of Haringeymoved Amendments Nos. 27 and 28:

247
Page 73, line 32, leave out from "section" to "unless" in line 34.
Page 73, line 38, leave out subsections (3) to (5).
On Question, amendments agreed to.
Clause 130 [Disclosure of information]:
Lord McIntosh of Haringeymoved Amendment No. 29:
Page 76, line 21, leave out "authority" and insert "organisation"
The noble Lord said: My Lords, in moving Amendment No. 29, I shall speak also to Amendments Nos. 34, 35, 36, 37, 38 and 47. They are technical amendments.
Amendment No. 29 is a minor technical amendment to correct a mistaken reference in Clause 130. As the Bill stands, Clause 130(5)(b) refers to the disclosure of information by the "registration authority"; it should refer to the "registration organisation".
Amendment No. 34 seeks to amend Clause 143 which allows the appropriate Minister to make, by order, any supplementary, incidental, consequential, transitory, transitional or saving provision that he considers necessary or expedient in order to give effect to the Act. That is a standard provision and is included in most Bills. Its use is restricted only to what is necessary or expedient for the purposes of, or in consequence of, giving full effect to the provisions of the Bill.
The amendment clarifies who the appropriate Minister is, when an order under Clause 143(1) has UK or Great Britain extent. In England and Wales, it would have been the Secretary of State and the Assembly acting jointly: for Scotland, it would have been the Secretary of State. We would have needed two orders for an enactment with UK extent. Amendment No. 34 resolves that problem by ensuring that amendments to enactments with a Great Britain or UK extent can be made by an order made by just the Secretary of State. Before any order is made using the powers in Clause 143(1) that could, if Scottish Ministers had the power in the Bill, be made by the Scottish Parliament, the Scottish Ministers must be consulted. Amendments Nos. 36 and 37 ensure that it is clear that, as was intended, Clause 143(1) has UK extent.
Amendments Nos. 35, 38 and 47 are consequential on amendments that were made on Report; namely Amendments Nos. 128 and 149, tabled by the noble Baroness, Lady Barker. The amendments did not change the effect of the provisions, and, after consultation with the Scottish Executive, we accepted them. On Report, Amendment No. 149 omitted paragraph 19 from Schedule 4, so Amendment No. 35 omits the reference to paragraph 19 of Schedule 4 at Clause 149(5)(d). Amendment No. 38 omits the reference to paragraph 19 of Schedule 4 at Clause 150(5). Amendment No. 47 removes the reference in Schedule 5. I beg to move.
On Question, amendment agreed to.
Clause 134 [Scottish restriction on bringing children into the United Kingdom]:
Lord McIntosh of Haringeymoved Amendments Nos. 30 to 33:
Page 78, line 28, at end insert—
"( ) In section 50 of the Adoption (Scotland) Act 1978 (restriction on removal of children for adoption outside Great Britain)—

(a) in subsection (1), "not being a parent or guardian or relative of the child" is omitted,

(b) after subsection (3) there is inserted—

"(4) The Scottish Ministers may by regulations provide for subsection (1) to apply with modifications, or not to apply, if—

(a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or

(b) the prospective adopter is a step-parent of the child, and any conditions prescribed by the regulations are met.""

Page 78, line 29, leave out "the Adoption (Scotland) Act 1978 (c. 28)" and insert "that Act"
Page 79, leave out lines 5 to 9.
Page 79, line 44, at end insert—
"( ) Regulations may provide for this section not to apply if—

(a) the adopters or (as the case may be) prospective adopters are natural parents (whether or not they have parental responsibilities or parental rights in relation to the child), natural relatives or guardians of the child in question (or one of them is), or

(b) the British resident in question is a step-parent of the child,

and any prescribed conditions are met."
On Question, amendments agreed to.
Clause 143 [Supplementary and consequential provision]:
Lord McIntosh of Haringeymoved Amendment No. 34:
Page 84, line 36, at end insert—
"( ) For the purposes of subsection (I), where any provision of an order extends to England and Wales, and Scotland or Northern Ireland, the appropriate Minister in relation to the order is the Secretary of State.
( ) Before making an order under subsection (1) containing provision which would, if included in an Act of the Scottish Parliament, be within the legislative competence of that Parliament, the appropriate Minister must consult the Scottish Ministers."
On Question, amendment agreed to.
Clause 149 [Commencement]:
Lord McIntosh of Haringeymoved Amendment No. 35:
Page 88. line 22, leave out ", 19"
On Question, amendment agreed to.
Clause 150 [Extent]:
Lord McIntosh of Haringeymoved Amendments Nos. 36 to 38:
Page 88, line 32, leave out from "enactment" to "has" in line 33.
Page 88, line 38, leave out ", 143(1)"
Page 89, line 3, leave out "paragraphs 19 and 22 extend" and insert "paragraph 22 extends"
On Question, amendments agreed to.
Schedule 3 [Minor and consequential amendments]:
Lord Hunt of Kings Heathmoved Amendment No. 39:
Page 113, line 12, at end insert—
"In section 48 (regulation of fostering functions), at the end of subsection (1) there is inserted—
"(f) as to the fees or expenses which may be paid to persons assisting local authorities in making decisions in the exercise of such functions"."
The noble Lord said: My Lords, on Report, the Government tabled an amendment to ensure that local authority adoption agencies are able to remunerate and pay expenses to members of adoption panels. The amendment was necessary because of concerns expressed to us that some adoption agencies felt that they did not have the legal power to make such payments. This amendment makes similar provisions in relation to local authority fostering panels. The purpose of Amendment No. 39 and the amendment we tabled on Report was to help to ease the problem of recruitment of panel members, which can then cause delays in the system.
In commending the amendment to the House I take the opportunity to pay tribute to the work of panel members, both in fostering and adoption. They do excellent work and we need to do everything we can to support and encourage more people to apply. I beg to move.
On Question, amendment agreed to.
Schedule 4 [Transitional and transitory provisions and savings]:
Lord Hunt of Kings Heathmoved Amendments Nos. 40 to 46:
Page 117, line 1, at end insert—
"10A In section 13 of the Adoption Act 1976 (child to live with adopters before order is made)—

(a) in subsection (1)(a), at the beginning there is inserted "(subject to subsection (1A))",

(b) after subsection (1) there is inserted—

"(1A) Where an adoption is proposed to be effected by a Convention adoption order, the order shall not be made unless at all times during the preceding six months the child had his home with the applicants or one of them.",

(c) in subsection (2), after "subsection (1)" there is inserted "or (1A)",

(d) subsection (4) is omitted."

Page 117, line 1, at end insert—
"10B In section 56 of the Adoption Act 1976 (restriction on removal of children for adoption outside Great Britain)—

(a) in subsection (1), "not being a parent or guardian or relative of the child" is omitted,

(b) at the end of that section there is inserted—

"(4) Regulations may provide for subsection (1) to apply with modifications, or not to apply, if—

250

(a) the prospective adopters are parents, relatives or guardians of the child in question (or one of them is), or

(b) the prospective adopter is a step-parent of the child,

and any prescribed conditions are met.

(5) In this section, "prescribed" means prescribed by regulations and "regulations" means regulations made by the Secretary of State, after consultation with the National Assembly for Wales.""

Page 117, leave out lines 17 to 20.
Page 117, line 42, leave out from "may" to end of line 45 and insert "provide for any provision of Part II to apply with modifications or not to apply"
Page 118, line 14. at end insert—
"( ) Regulations may provide for the preceding provisions of this section not to apply if—

(a) the adopters or (as the case may be) prospective adopters are natural parents, natural relatives or guardians of the child in question (or one of them is), or

(b) the British resident in question is a step-parent of the child,

and any prescribed conditions are met."
Page 118, line 17, at end insert—
"11A In section 72 of the Adoption Act 1976 (interpretation), subsection (3B) is omitted."
Page 118, line 34, at end insert—
"13A (1) The Secretary of State may make regulations providing for the references to an adoption agency in—

(a) section 58(1)(c) of the Adoption Act 1976 (c. 36), and

(b) section 52(1)(c) of the Adoption (Scotland) Act 1978 (c. 28),

to include a prescribed person outside the United Kingdom exercising functions corresponding to those of an adoption agency, if the functions are being exercised in prescribed circumstances.
"Prescribed" means prescribed by the regulations.
(2) Before exercising the power conferred by sub-paragraph (1) in relation to the Adoption (Scotland) Act 1978 (c. 28), the Secretary of State must consult the Scottish Ministers."
On Question, amendments agreed to.
Schedule 5 [Repeals]:
Lord Hunt of Kings Heathmoved Amendments Nos. 47 to 50:
Page 120, column 2, leave out line 18.
Page 120, column 2, line 18, at end insert "In section 50, the words "not being a parent or guardian or relative of the child"."
Page 121, line 47, leave out "11" and insert "10A"
Page 121, line 47, leave out "13" and insert "13A"
On Question, amendments agreed to.
6.15 p.m.
Lord Hunt of Kings Heath: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Hunt of Kings Heath.)
Lord Brightman: My Lords, perhaps I may take a moment to express my appreciation of one aspect of the drafting of the Bill. I refer to the inclusion of an

251
index of defined expressions, which is to be found in the last three pages of the Bill in Schedule 6, page 122. That invaluable device enables the reader to tell at a glance whether a particular word or expression is used in the text of the Bill in its ordinary dictionary sense or in a special statutory sense.
Your Lordships will see that the index is in two columns. Column one lists those words and expressions which are given a special meaning in the Bill. Column two states the clause where the meaning is to be found. Perhaps I may take an example. Clause 35 at page 23 of the Bill requires prospective adopters to return a child to the adoption agency if the agency is of the opinion that the child should not remain with the prospective adopters, and the adoption agency "gives notice" of its opinion to the prospective adopters.
The dictionary definition of "notice" in this sort of context is "intimation" or "warning", which, so far as the dictionary definition goes, may be oral or in writing. The reader of the Act will want to know whether "notice" is used in its ordinary dictionary sense or in a more restricted sense such as a notice in writing; perhaps whether it would be enough to pick up the telephone.
As the Bill contains an index of defined words and expressions, the reader will not have to search long or far for the answer. Column one of the index tells the reader immediately that, indeed, "notice" has a special meaning. Column two tells him immediately where that meaning is to be found: Section 145, where "notice" is defined as "notice in writing". Therefore, a telephone call would not be sufficient.
I do not know why every lengthy Act of Parliament does not contain an index of defined expressions. It costs little effort to compile, takes up little space in the Act and saves the reader much trouble. The Public Bill Office tells me that only three Bills in 1998 contained an index of defined expressions. There were none in 1999; two in 2000 and two in 2001.
I submit that all lengthy and complicated Acts of Parliament should contain such an index. My thanks go to those concerned for including an index in the Bill.
Lord Hunt of Kings Heath: My Lords, I thank the noble and learned Lord for his kind comments. I shall ensure that they are read by those who drafted the Bill. I agree with the noble and learned Lord; having an easy-to-understand glossary is of use to a Minister as it is to every other Member of your Lordships' House. I commend that very good practice of my own department to other government departments; that is, in a corporate sense.
On Question, Bill passed and returned to the Commons with amendments.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2002
6.16 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)rose to move, That the draft order laid before the House on 28th October be approved [39th Report from the Joint Committee].
The noble Lord said: My Lords, as the House will know, the Terrorism Act 2000 came into force on 19th February 2000 and signalled the Government's determination to do all they could to defeat terrorism in all its forms. At the time that that legislation was passed by the House we would little have been able to predict the events of some 18 months afterwards, or how our perceptions of the scale, form and risk of terrorism would expand.
On September 11th 2001 we saw the tragic events in New York. The extent to which terrorists could go in pursuit of their goals was a shock to all the civilised world. Further, we have recently seen the horror which took place in Bali. Again, that has drawn the attention of the world to the risks that ruthless terrorists pose to order and civilisation in all countries of the world. Clearly, many countries now see terrorism as potentially as great a threat to world peace as other forms of risk have been seen previously.
The development of terrorism as a threat has increased the importance of international cooperation around the world between governments which are concerned to work together to defeat it. Certainly, it has heightened the level of awareness in the United Kingdom of the risk of terrorism. At a local level, for ordinary British citizens it has reinforced the importance of heeding travel advice where possible, recognising how difficult it is to obtain appropriate travel advice which will be able to forecast and correctly judge such risks. By its nature, terrorism is unpredictable. Things we would have thought impossible have taken place in the past year or two.
An important part of the Terrorism Act 2000 is the power to proscribe organisations concerned in international or domestic terrorism. It is a heavy power which should be used only where circumstances warrant. Under the Act the Secretary of State has the power to proscribe any organisation which he believes is concerned in terrorism. The criteria used are that an organisation is concerned in terrorism if it commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism, or is otherwise concerned in terrorism.
The impact of proscription is to make it more difficult for international terrorist organisations to operate in the United Kingdom and seeks to deter them from coming here in the first place. We hope and expect that it acts as a powerful deterrent in that it inhibits activity in the first place. The proscription offences are a means of tackling some of the more low-level support activities for terrorist organisations. Finally, the Act is a powerful signal of the Government's and society's rejection of those organisations' claims to legitimacy.

253
The House may remember the penalties for proscription. They bear on the membership of a proscribed organisation: that is an offence. Similarly, it is an offence to support a proscribed organisation or to display support in public for a proscribed organisation. Relevant sanctions apply.
When considering which terrorist organisations should be subject to proscription, the Home Secretary takes into account a number of factors, including those indicated to Parliament by Ministers during the passage of the Bill. He takes into account: first, the nature and scale of an organisation's activities; secondly, the specific threat that it poses to the United Kingdom; thirdly, the specific threat that it poses to British nationals overseas; fourthly, the extent of the organisation's presence in the United Kingdom; and, fifthly, the need to support other members of the international community in the global fight against terrorism.
There have been no changes to the list of proscribed organisations since the order proscribing 21 international terrorist organisations came into force on 29th March 2001, although the list of proscribed organisations and the need to make judgments about whether others should be proscribed are kept under constant review.
As the House knows, the order recommends the proscription of four organisations. It might be helpful if I commented briefly on each of them. The first, Jemaah Islamiyah, which I shall refer to as JI, is the name of an Islamist extremist group based in Indonesia, Malaysia and the southern Philippines. I shall illustrate its past activity. In December 2001, 13 JI members were arrested in Singapore. They had been planning attacks against several targets in Singapore, including the British Council, the High Commission and the US, Israeli and Australian embassies.
The second organisation is the Abu Sayyaf Group, which I shall refer to as the ASG. It is an Islamist extremist group based in the southern Philippine island of Mindanao. The group has committed a number of kidnappings: in April 2000, 21 people of different nationalities were kidnapped from a resort in eastern Malaysia; in August 2000, an American citizen was kidnapped and held captive for eight months; and in May 2001, the ASG conducted an armed raid on a holiday resort, took 20 people hostage and killed two of the American hostages during that activity. The ASG has killed hostages when ransoms have not been paid and is known to have links to Al'Qaeda.
The third organisation is the Islamic Movement of Uzbekistan, the IMU. It was formed in 1998 out of a more general political Islamic resistance to post-Soviet rule in Uzbekistan. In February 1999, it launched a sophisticated bombing campaign in Tashkent, directed against the Uzbekistan regime. The close ties to Al'Qaeda and the Taliban meant that it often followed the agenda of Al'Qaeda and the Taliban. Osama bin Laden is widely reported to have given money and training to it on the understanding that it followed his agenda in central Asia.
254
The final group is Asbat Al-Ansar, which was formed in 1985. It is a Sunni Muslim terrorist organisation based primarily in the Lebanese-Palestinian refugee camp of Ain Al Hilweh. Its terrorist actions have so far been limited to bombings and assassinations within Lebanon, including the assassination of the leader of Al Ashbashi. It is believed to have been responsible for the murder of four Sidon judges in 1999. Its most recent attack, in January 2000, was against the Russian Embassy in Beirut when it used rocket-propelled grenades and small arms.
I have previously indicated the factors that are taken into account in making judgments about who should be proscribed. Clearly, the Home Secretary has had to exercise his judgment about each of those organisations against those criteria. Clearly, access to related intelligence-based material on those organisations is also an important part of that process.
Proscription is both a fair and proportionate response to the terrorist threat that is found in this country and abroad. It is clearly not aimed at any specific community or at any religion; it is aimed at terrorists. There is a fair and robust appeal process already in place. The Proscribed Organisations Appeals Commission is an independent judicial tribunal. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 28th October be approved [39th Report from the Joint Committee].—(Lord Filkin.)
Viscount Bridgeman: My Lords, I apologise to the House for not being in my place at the start of this debate. We on this side of the House very much welcome the steps that the Home Secretary is taking. We accept that this approach is the result of very careful intelligence gleaned from international sources. It has obviously been given additional impetus by the events in Bali, which, if nothing else, show how unpredictable terrorism can be throughout the world. What procedure is there for keeping the organisations under constant review? The Minister referred to the appeals procedure. Is there a review procedure within the Home Office? In general, we support the order.
Lord Ahmed: My Lords, I have a question for my noble friend about the list. What evidence is there that a group operating in Uzbekistan or Lebanon is also a danger to British citizens in the United Kingdom? Will he comment on extreme organisations in India, for example, which were responsible for killing British citizens? Those organisations have not been proscribed on the terrorism list. I refer to the VHP, Shiv Sinna, Bajrangdal and RSS. They were widely reported to be responsible for the murder of many innocent people in Gujarat. At least three British citizens were also murdered by them. Will they be considered for inclusion on the list in future?
Lord Goodhart: My Lords, I speak on behalf of those on these Benches. We share the Government's

255
view of the danger of international terrorism and the noble Lord's horror at the events of 11th September last year in the United States, the bombing in Bali earlier this month and the events in Moscow during the past few days.
When debating the original list, we objected to the inclusion of 21 different organisations in a single order. A statutory instrument cannot be amended and it is therefore impossible to vote on the exclusion of one organisation, however weak may be the case for treating that organisation as terrorist, without scrapping the whole order.
There was genuine argument about whether some organisations belonged on the original list. There is no reason to doubt that all organisations on the list are terrorist organisations. They are already all on the United Nations list of terrorist organisations. We therefore support the order.
The noble Lord, Lord Ahmed, raised some important questions. My honourable friend in another place, Mr Simon Hughes, has asked on various occasions whether it would be possible to be somewhat more forthcoming about the evidence. Perhaps that could be done in the Select Committee responsible for intelligence and security in the other place.
Although we support the order, that does not alter the principle involved: we continue to believe that there should be separate orders for each organisation. There may be controversy about one or more of the names on the list. We should not object to several orders being moved as a group with a single debate, thereby incurring no extra time.
But, given the draconian nature of the effect of an order against an organisation, we believe that there should be a separate debate on each organisation so that it is possible for Members of each House to take a proper decision in respect of each organisation. Indeed, I understand that a challenge is currently being made in the courts as to whether it is proper for the Home Secretary to lump more than one organisation together in a single order. Therefore, we believe that on this occasion issues do need to be aired, although, as I have made clear, we support the order today.
Lord Filkin: My Lords, I start by thanking both Front Benches for their explicit support for the order and for recognising that it is necessary and proportionate. I shall respond to the specific questions raised.
The noble Viscount, Lord Bridgeman, asked about the review procedure. Clearly, if there is no longer a need for an organisation to be proscribed because the circumstances have changed and its threat has been removed, it is possible for that to happen. The Home Office chairs an inter-departmental working group at official level, comprising representatives from all relevant government departments and agencies, including the FCO, the Security Service, the Secret Intelligence Service, the Northern Ireland Office and the Association of Chief Police Officers. The group reviews all organisations listed as proscribed. In
256
practice, the membership of that organisation advises the Home Secretary before he considers whether or not to use his powers under the Act.
My noble friend Lord Ahmed asked whether it was necessary to proscribe a terrorist organisation acting in Uzbekistan. As I believe he implied, it is not only a question of a threat to British citizens in this country; it could be a question of a threat to British citizens abroad. It is also possible that we would consider it our duty, as our contribution, to support actions against international terrorism. International groups might also merit proscription because, if they were not so proscribed, the future risk to UK citizens might be real and substantial.
My noble friend also raised—I believe we have corresponded with him on the matter on previous occasions—the issue of VHP in India and a number of other organisations. I am afraid that I shall give the same answer as was given to my noble friend's written questions. The list is kept under review and a decision to proscribe or de-proscribe is taken after careful consideration of all the facts.
If my noble friend feels that we should consider any further points, I hope that he will write to me or to the Home Secretary and we shall look at them. But a judgment always has to be made. I believe that it would be disproportionate to proscribe every single terrorist organisation in the world that potentially posed some risk. No country acts in that way. Therefore, a judgment has to be made about where and when one believes that the risk to British citizens or to global security is sufficient to trigger proscription by the United Kingdom Government.
I thank the noble Lord, Lord Goodhart, for his question. There is no reason to doubt that these are terrorist organisations. I believe he is correct that the legislation does not prevent more than one group being listed in one order. However, I do not believe that that was his point. Basically, he was saying that, from his perspective, it would be desirable to deal with them as separate orders, or even as a grouped amendment. I shall reflect on that. I would say only that today's order contains a coherent list of a group of organisations, all of whom have Al'Qaeda connections. Therefore, it seemed both efficient and appropriate to group them under one order. I hope that that goes some way to meeting the questions raised.
On Question, Motion agreed to.

Racism in the Theatre
6.34 p.m.
Baroness Rendell of Baberghrose to ask Her Majesty's Government whether they are satisfied with progress made in combating racism in the theatre.
The noble Baroness said: My Lords, the Eclipse conference started from the premise that racism exists within the theatre, and the Eclipse report summarises the discussions that took place there. Ideally, the conference should have been attended by chief

257
executives and artistic directors but, of the 125 theatres invited, fewer than a quarter attended, while some would have preferred to send education officers or marketing managers. A mixed understanding of racism was shown by some and there was a reluctance to accept that it even exists in the United Kingdom.
Twenty-one recommendations were outlined in the report. Those included: advice to all theatre boards to inform themselves of the new amendment to the Race Relations (Amendment) Act 2000; that the Arts Council should implement equal opportunities training for all boards and senior managers; and that, for those boards and senior managers, seminars should be held to discuss and share methods of positive action and equality in employment.
Since the publication of the report, seminars have been held in Yorkshire and in northern, north-west, east England and south-west regions. More will take place during November in the West Midlands and in southern arid south-east England. Representatives from most theatres in those areas attended the first seminars. According to the Arts Council, some were making progress and others had a long way to go.
Unfortunately, the view of some who attended has been that the employment of black and Asian people is a financial risk. They give as grounds that their presence on the stage or in management fails to attract potential audiences. Some active hostility was shown. The old objection to casting—for example, as regards Afro-Caribbeans in roles originally intended for white actors—is still being put forward, in spite of such prejudice having been shown in the majority of cases to be unfounded.
At the other end of the spectrum are theatres which are making real advances. A short time ago, the Theatrical Management Association, together with Barclays Bank, presented for the first time its special award for theatres with the best anti-racism records. Five regional theatres were mentioned at the presentation—the award going to the Contact Theatre in Manchester.
Instrumental in achieving that was Kully Thiarai, who set up the work leading to Contact's success. She then moved to become joint artistic director of the Leicester Haymarket Theatre—one of those among the five with good anti-racism records mentioned at the award presentation. Mandy Stewart, the Haymarket's chief executive, says that the Eclipse report has sharpened awareness but that that theatre has always been committed, particularly through its programming and casting policy, to the representation of ethnic minorities.
Of Leicester's total population of approximately 285,000, about 40 per cent are non-white. The Haymarket employs permanently 70 people, of whom only 10 per cent are non-white. But last year it also employed 99 performers of whom 57 were white and 42 non-white, marking a significant move forward for that theatre.
258
People sometimes talk as if the work of changing things is a recent development. I quote Neil Bartlett, Artistic Director of the Lyric Theatre, Hammersmith, who says that, in fact,
"some theatres and theatre workers have been quietly and creatively changing both their thinking and their work practices. It is important that this work is recognised alongside the lack of change elsewhere".
The Lyric, Hammersmith, recognises that London is the most ethnically diverse city in the world and it is committed to reflecting that cultural diversity in its staff, board, artistic programme, education activities and audience. As an equal opportunities employer, it has always aimed at encouraging applications from all sections of the community. However, unlike Kully Thiarai's findings in Leicester, the applications received fail to reflect the diverse population of London or the United Kingdom. Consequently, the Lyric remains an overwhelmingly white organisation.
The Lyric will widen its advertising to include The Voice, the Asian Times and the local job centre. It seems therefore that more should be done to encourage applications from those in ethnic minorities aspiring to work in theatres nationwide and that this advertising project should be recommended to theatre managements in general.
The Lyric has introduced a positive action training programme. It is to be developed over the next six months and funding for this development will be sought. When vacancies occur for senior management posts, new job descriptions will state that a commitment to and knowledge of culturally diverse arts practice is essential. The theatre is also ensuring that all staff are informed about the new amendments to the Race Relations Act. In respect of productions, the Lyric will seek to ensure that those featuring all-white casts are the exception rather than the rule and particular care will be taken to audition actors from ethnic minorities while at all times taking care that the policy of best candidate for the job still applies. That, of course, is a valid point and it is important in the theatre and elsewhere that the best candidate factor should never be lost sight of by all employers committed to cultural diversity. It might be well, too, for theatre management always to keep in mind the bad old days when, for instance, Hollywood film makers, in employing actors of African descent, almost invariably cast them in roles as menials or comic relief. I am thinking in particular of "Gone with the Wind".
The Arts Council statistics for 1999 to 2000 show that out of staff then employed in British theatre only 80 were Afro-Caribbean and Asian and out of 463 board members only 16. Kully Thiarai at Leicester is currently the only non-white artistic director of a major mainstream theatre, a fact which may perhaps be an unpleasant surprise to Members of your Lordships' House. Ms Thiarai has listed recommendations to theatre organisations willing to develop a non-racist programme. She writes:
"Small things can have a huge effect".

259
She suggests:
"A black box office member, a culturally diverse print or image, some non-European food in the bar, all say something about your organization".
She continues:
"Cultural diversity doesn't have to be a burden. It can be hugely liberating, particularly for us as artists".
The Arts Council has declared it a priority and is currently revising its action plan which will take place in 2003 through the Black Regional Theatre Initiative and the Arts Lottery programme. Over 10 per cent of a total of £29 million new funds for the theatre are to be used to support it. The aim is to use it to embrace training initiatives, five training bursaries for black and Asian practitioners and a number of annual bursaries for black and Asian directors.
Five million pounds have been allocated to the Decibel project, a programme of arts events due to take place in 2003–04 and whose object is to challenge the perception of the arts in England to reflect contemporary British society. The project will feature the work of African, Caribbean and Asian artists, develop new networks and co-ordinate a national festival. That means artists as writers, actors and staff in theatres. In 2001–02 there were four Arts Council regularly funded black, Asian and Chinese companies: Nitro, the Tanasha Theatre, the Tara Arts Group and Yellow Earth, and several more touring companies able to function through the national touring programme funds.
All those measures seem promising for a racism-free future in the theatre. The various organisations committed to attaining it are willing and energetic. Funds which appear to be adequate are available. Things are beginning to look hopeful with more and more people involved in the theatre becoming aware that a Utopian vision of a race-equal United Kingdom is not yet in being. W. H. Auden defined civilisation as,
"the degree to which diversity is attained, unity retained".
It is a good definition to bear in mind. Much progress has still to be made and prejudice overcome.
6.44 p.m.
Baroness McIntosh of Hudnall: My Lords, I thank my noble friend for introducing the debate. Perhaps I may be permitted to apologise to her for causing her unnecessary anxiety by appearing in the House rather later than I had expected. I congratulate her on an excellent setting out of the issues for consideration today. I declare two interests. I am Principal of the Guildhall School of Music and Drama; and I am a former executive director of the National Theatre. In that capacity, I failed to attend the Eclipse conference although I had a good excuse. However, I recognise that it was a great disappointment that so few people at the most senior levels of organisations were able to attend.
Ten years ago, the National Theatre, for which I then worked, presented a new production of Rodgers and Hammerstein's wonderful musical "Carousel", which is set, as many noble Lords will know, in a
260
fishing village in New England in the late 19th century. It was directed by Nicholas Hytner, who is now Director Designate of the Royal National Theatre—and nobody who saw "Carousel" or any of his other productions before or since will be surprised that he was chosen for this most public of theatre jobs. He assembled a fine cast, including a brilliant young singer/actor named Clive Rowe, who played "Mr Snow", a character described by his creators, Rodgers and Hammerstein, as "big, be whiskered, overbearing" and as "narrow-minded and smug, but mustn't alienate the audience, so requires experienced comic actor with immediate warmth". The other essential characteristics for the role are that he should be about 30, with, "a lyric tenor voice with a heroic top A".
Clive Rowe had, and still has, apart from no longer being 30—I am sure he will not mind my revealing that—all the necessary qualities to play the role. Indeed, by the time all avenues had been explored, he was the only actor who really had the lot. He was brilliant—and had a huge personal success in the part.
Clive Rowe, is black and I am sorry to say that this fact caused enormous consternation in the breasts of certain critics who should have known better. "Good heavens", they said, "this is outrageous. There were no successful black fishermen on the New England coast in the 19th century". This was, as they saw it, "political correctness"—that vile, overworked phrase—within the hallowed portals of the National Theatre.
Writing a few months later in the Independent, Nicholas Hytner said,
"Horrified by the unreality of a black Enoch Snow, what neither of them"—
the critics in question—
"cared to consider was the unreality of the rest of the show. They seemed unconcerned by the constant presence of a 30-piece orchestra, and by the odd propensity of these particular New Englanders to break into song at the drop of a hat, or to employ ballet as a regular means of discourse. It didn't bother them that the sea was represented by blue lino, the shore by green carpet. But a black man representing a herring fisherman—hold the front page".
He continued in the same article:
"An evening in the theatre rests on a sort of imaginative conspiracy between actor and audience …every age—every show—conspires differently to achieve its own reality …what seemed real to movie audiences of the 1920s seems hopelessly artificial now. Although the appearance of non-white actors at Stratford caused a frisson twenty years ago, it now passes without comment"
That was 10 years ago. Does it now pass without comment? You might think we had moved on from that kind of blinkered response. Sadly, however, despite Nick Hytner's optimism, the press still thinks it worth commenting on the fact that, for instance, David Oyelowo played Shakespeare's Henry VI for the RSC recently, or that Adrian Lester is to play Henry V for the Royal National Theatre, directed, unsurprisingly by Nicholas Hytner, not because those actors are among the finest classical players of their generation, which they certainly are, but because they are both black and, as we all know, medieval English kings on the whole were not. It is time we grew up. But

261
whether this can legitimately be seen as a symptom of racism, either in the theatre itself or in the people who attend it or comment upon it, I am not sure.
Those who dwell on these issues in this way are exhibiting something else—a sort of cultural paralysis which results in a depressing inability to recognise that the world has changed. In fact, as far as the employment of performers from ethnic minorities is concerned—and my noble friend has already indicated this—theatre in many of its forms has made a good deal of progress in the past 20 years, as a quick scan of cast lists will reveal. That does not mean, however, that we can afford to be complacent about the many barriers to be overcome by people from minority groups of all kinds. I refer to a recent debate in your Lordships' House on disability in relation to the performing arts where many of the same issues were evident.
Those people from minority groups who wish to make a career in the theatre, or who might form a larger percentage of the audience for theatre if they felt it better represented the true diversity of our culture, still need to be encouraged. I should like to focus briefly on two aspects that need attention. One is recruitment to boards and senior management positions, which my noble friend Lady Rendell has already referred to. The other is the vital importance of training and education in changing attitudes and aspirations.
On the matter of recruitment, until we have enough people from what I hope I can call, without offence, non-traditional backgrounds in leadership roles in arts organizations—that is, fewer people like me and more like Kully Thiarai, who has been referred to already, or like Venu Dhupa, the former executive director of the Nottingham Playhouse, who was instrumental in getting the Arts Council's Eclipse initiative going—I agree with my noble friend that we shall not get the changes which she and others would like to see. Bottom up processes, seeking out and encouraging those who need to be helped to take advantage of the opportunities that theatre offers, are absolutely vital. But theatres, like other businesses, are led from the top. That is where we look for signs that change is not just on its way but that it has actually arrived.
There are still regrettably few chairpeople, artistic directors and chief executives from ethnic minority groups. The Eclipse recommendations are intended to address that issue, among others. Along with my noble friend, I welcome the enormous amount of thought and effort that has gone into developing the action plan, which will be implemented shortly.
On the matter of education and training, your Lordships will not be surprised to hear that I regard these as the most important mechanisms for combating the effects of racism. I now lead an organisation which prepares young people for careers as musicians, actors, stage managers and stage technicians. We deliver a high quality, specialised education to a relatively small number of talented students. But we also recognise a responsibility to extend the reach of such education in two main ways:
262
first, by developing strategies to widen access so that our students come from the broadest possible range of backgrounds; and, secondly, by ensuring that, while the basis of our education will inevitably remain rooted in western traditions, it also acknowledges that the mere preservation of these traditions will not be enough if arts organisations are to respond and to develop in a changing cultural landscape.
We have developed an innovative programme—CONNECT—within which students and teachers at the Guildhall school are working with education and community partners in Newham, Tower Hamlets and Lewisham to engage young people in those areas. This has required working in a number of different artistic languages, using a variety of creative approaches and leadership skills. These inclusive processes can embrace everything from classical to popular, western and non-western genres, set repertoire—written and oral—and new works created through collaborative workshops. Much of the resulting work takes place in local venues, as well as in established performance spaces, both at the Guildhall school and elsewhere.
These inclusive, collaborative processes can also be seen at work in a ground-breaking project called the Art of Regeneration, which was launched recently at the Albany Centre in Deptford. It is led by the National Theatre, but it works with the London boroughs of Lewisham and Greenwich, and a number of other partners, including, I am pleased to say, the Guildhall School of Music and Drama. It involves the provision of arts-based programmes to people in those boroughs who have so far had little opportunity to participate.
These programmes, such as the Guildhall's CONNECT, are already vastly oversubscribed. Their success depends critically on partnership, flexibility. openness, and encouraging people from diverse backgrounds and with a broad range of skills to embrace new ideas and to learn from each other. It is my firm belief that racism, or any other unacceptable form of exclusion, in the theatre will be combated effectively in the long term only through initiatives of this kind. That is the way we shall grow a generation of audiences and practitioners who have the confidence and the interest to set the agenda for the future. It will take time, and it will take commitment of resources. I know that the Government, and in particular the current Secretary of State for Culture, Media and Sport, understand this very well. Despite the fiscal and political challenges that lie ahead, I hope that the necessary courage and determination to make progress will not fail.
6.55 p.m.
Lord Chan: My Lords, I thank the noble Baroness, Lady Rendell, for securing this debate. I congratulate her on her dedication in ensuring that black, Asian, Chinese and others are given equal opportunities to enrich the diversity of arts and entertainment in Britain. This Unstarred Question today is a timely and appropriate follow-up to her Question posed nearly two years ago in your Lordships' House.

263
The Arts Council of England changed its policies in the year 2000 to allocate, over six years, £20 million to fund black, Asian, Chinese and other minority ethnic organisations in new developments, theatres and individual projects. Benefits from this investment have yet to emerge and feed into the Arts Council's initiative, which is called Diversity 2002.
Here I wish to acknowledge the help of Mrs Lee Fulton, a media and culture consultant, and Andy Cheung, who, as an Arts Council Fellow, worked in the Department of Culture, Media and Sports for a limited period. They are my friends and they have provided me with up-to-date relevant information. Positive action training through bursaries and fellowships has begun to enable a diversity of talent from many ethnic backgrounds to acquire experience in a range of organisations from art galleries to theatres. Charities such as the Paul Hamlyn Foundation have funded some bursaries.
But where have these fellows and bursary holders progressed? Has the first group of 15 Arts Council of England Fellows been given sufficient support to enter mainstream arts and culture organisations?
Of the two Chinese artists trained, one is working in Hong Kong but is due to return soon. The other is struggling to survive by writing for a new tourist magazine called Chinatown. So I look to the Minister for answers.
The national training organisation of the arts and entertainment sector, known as Metier, surveyed employers in 2000. It reported serious under-representation of people from minority ethnic descent in the areas of classical drama, music and dance in the roles of performers and managers. Only 2.5 per cent of nearly 3,000 employees in Metier's arts skills 2000 research project were from black, South Asian and Chinese backgrounds.
A welcome development is the extension of positive action schemes beyond London and the South East, such as the North West Arts positive action trainee scheme. In addition, North West Arts will be inviting applications for three-year fixed term funding for theatre organisations in the region. Between one and four awards of between £20,000 and £50,000 per annum are likely to go to culturally diverse companies.
The past 10 years have seen the emergence of a number of performing arts bodies. I shall concentrate on those in the Chinese community. The British Chinese Artists' Association was established in 1992 to address the lack of profile, funding, resources and opportunities for British artists of Chinese descent. It became a registered charity in 1996. Since then the British Chinese Artists' Association has promoted through its specialised audience and artist database more than 100 events in performance, music, dance and visual arts.
The Yellow Earth Theatre is a London-based international touring company formed by five British East Asian performers in 1995. Funded by the Arts Council of England and London Arts, the Yellow Earth Theatre is a pioneering theatre company that
264
celebrates and integrates the best of East-West theatre. It aims to establish an East-Asian arts centre and youth theatre in London. The Mu Lan Chinese Theatre Company has been producing contemporary British/Chinese plays reflecting life in Britain.
Clearly, it is difficult for talented black and minority ethnic artists to progress in British theatre. The number of Equity membership cards is a useful indicator of that progress. I understand that they are difficult to obtain, particularly for newcomers to the theatre such as black and ethnic minority artists.
A further barrier is that of casting where black, Asian, and Chinese artists tend to be limited to parts where their racial background determines the character role that they play. Not surprisingly, this method of casting means that minority ethnic people have few opportunities in mainstream theatre. We heard this evening from the noble Baroness, Lady Rendell, and the noble Baroness, Lady McIntosh, about recent positive changes, but even when the play, opera, or musical is in a non-European setting—such as Gilbert and Sullivan's "Mikado" or Puccini's "Madam Butterfly"—how many character parts are played by non-Europeans? Is there a case here of institutional racism for the theatre to answer?
Finally, we are grateful to government for the Race Relations (Amendment) Act 2000, which makes it obligatory for all public authorities to take account of the impact of their policies on the ability of black and minority ethnic people to be employed and to have access to their services. All public organisations are expected to produce race equality schemes and to implement them. Should not more be done by theatres, in addition to those measures described by the noble Baroness, Lady Rendell, under the Race Relations (Amendment) Act? I look forward to hearing the Minister's reply to my questions on the progress made in combating racism in the theatre.
7.2 p.m.
Lord Parekh: My Lords, I am grateful to my noble friend Lady Rendell for initiating a discussion on the question of racism in the theatre. The subject is important, because racism is always unacceptable wherever it occurs, particularly in the arts which are based on the principle of equal human worth and, rightly, believe themselves to be free of conventional prejudices.
Two reports in recent years have highlighted the magnitude of racism in the theatre. I have in mind the Glass Ceilings report published in August of this year, and the Eclipse report published just four months earlier. Between them, they showed that, although considerable progress has been made, we still have a long way to go. For example, out of 2,009 permanently employed staff in regional theatres, just over 80—that is to say, about 4 per cent—are from black and Asian communities. At senior levels, there are 463 board members, as mentioned earlier by my noble friend Lady Rendell. Of these, just under 20 are blacks and Asians; that is, about 3.5 per cent of the population.

265
The depressing picture does not simply end with the under-representation in employment. Both reports point out that the roles in which the blacks and Asians are cast tend to be racially stereotyped. There are hardly any black and Asian stage managers, artistic directors, technicians, designers, or marketing officers. Until recently, there were few scholarships, bursaries, or traineeships for ethnic minorities; and, therefore, no realistic prospect of the ethnic minorities rising to important technical, managerial, or other senior positions in the next few years.
Further, little attempt is being made to draw on the great theatrical traditions of the ethnic minorities and bring them into a creative dialogue with the mainstream Western theatrical tradition. As far as I can see, only a limited attempt is being made to take the theatre to the Asian and black audiences and increase their theatrical literacy. As I observed earlier, and as both my noble friends Lady Rendell and Lady McIntosh most sensibly pointed out, there have been significant changes for the better during the tenure of this Government; for example, £25 million has been specifically set aside for the theatre, 10 per cent of which is earmarked for diversity projects.
The National Theatre has launched its transformation season, which focuses on new writings—some of which are from ethnic minorities. I must also mention the considerable work carried out by the Royal Shakespeare Company. However, despite all this, as both reports point out, and as I said earlier, there are problems requiring urgent attention.
What should we do? I should like to make three or four quick suggestions. First, regional theatres should review their equal opportunity policies, develop positive action programmes, introduce a system of ethnic monitoring, and build up a database of regionally available talents.
Secondly, the Arts Council needs to play a proactive, co-ordinating role in this area. It should build up a national database and website of Afro-Caribbean and artistic talents. It should also introduce companies to venues, bring in blacks and Asians as local and national advisers, act as a broker between touring companies and theatre buildings, and monitor the progress of regional and local theatres. The council should also encourage a more extensive system of bursaries and traineeships, popularise the practices of theatres carrying out good work, and encourage regional theatres to invite blacks and Asians as guest directors from time to time.
It would also help greatly to ask boards appointing artistic directors to include in the job requirement an interest in, and knowledge of—and, perhaps, even a commitment to—minority art and artists. The Arts Council, and other funding agencies, should also encourage boards of theatre companies to recruit ethnic minorities, develop long-term strategies and targets, and foster diversity of themes and cast.
Finally, ways need to be found to attract black and Asian audiences. This would have several advantages. Obviously, it would increase revenue. It would also create a climate conducive to the emergence of artistic
266
talents among the ethnic minorities. Indeed, if I may say so, it would also wean away large chunks of ethnic minorities from addictive and often rather mediocre television to the communal, interactive and living reality of the theatre. The taking of the theatre to the ethnic minorities should also, over time, enrich the mainstream theatrical tradition and output.
How do we achieve that aim? How do we take the theatre to the ethnic minority audiences? There are various ways in which that can be done. Theatrical productions should draw on ethnic minority experiences, both by concentrating on those experiences and by integrating them into mainstream theatre. Theatre timings could also be changed to suit ethnic minority patterns of work and life. There is already a rich theatrical tradition among ethnic minorities, including street theatre, which can be both exploited and brought into a creative dialogue with the mainstream Western tradition. A building dedicated to black theatre would also be helpful. It could act as a focus for ethnic minority interest in the theatre.
I have great confidence in my noble friend Lady Blackstone. Her record in this area of fighting racism is most commendable, as is her commitment to the arts. I can say that from several years of close association with her. I hope that both my noble friend and the Secretary of State will respond positively to many of the constructive suggestions that have been made in the debate by my noble friends and myself.
7.9 p.m.
Baroness Howells of St Davids: My Lords, I, too, should like not only to thank my noble friend Lady Rendell for tabling this Unstarred Question, hut also to congratulate her on raising this sensitive issue in your Lordships' House. I did not attend the conference to which my noble friend referred, so I shall give a personal view as a black person. From the introductory remarks of my noble friend and from what other noble Lords have said, the House will have come to the certain knowledge that race matters even today in British society. Racism exists in all our institutions and in the conditioning of British citizens alike.
Some of your Lordships may recall how Stephen Lawrence's life ended in a tragic assassination on a spring evening in Eltham in south-east London. He was an 18 year-old British citizen of Caribbean descent. He was waiting at a bus stop with a friend. The reason for his assassination was sheer bigotry—bigotry over the colour of his skin. The United Kingdom was shaken by that unimaginable act. For most people it was unthinkable, but for black British citizens it was an expression of the racism that affects their daily lives in one way or another.
The country was forced to debunk the idea that there were only a few bad apples in the barrel and confront the fact that its very institutions were racist. Since the Macpherson report, many steps have been taken to introduce laws and rules to get rid of bigotry in all of Britain's institutions. Among them are the

267
strengthening of the Race Relations Acts—which was long overdue—and the setting of targets by many institutions to combat injustice.
As a result, black people have made considerable headway in society. Progress has not been easy, but it has been steady. Black people's progress has been a direct result of pressure placed on institutions to change their structures and systems in the country in order to end discrimination.
Today's debate poses the question whether we are satisfied with the progress made in combating racism in the theatre. Black people find it difficult to envisage a set of criteria to demonstrate results in the highly competitive field of theatre for actors and actresses. But in many of its institutions, the theatre is an employer where black people still remain underrepresented, as evidenced by my noble friend Lady Rendell and other speakers.
That is not to say that there are not trained personnel to take those jobs, but the available figures suggest that the playing field remains uneven and that discrimination continues, because there is no representation of black people where decisions are made. The theatre is almost all white at its top. Black people's interest is not best served when an ethnocentric view is the only deciding factor—whether in employment or in the theatre itself.
It is noticeable that UK institutions go to the United States of America to recruit black actors. Black actors from Britain must go to the United States for any recognition or opportunity. Examining that phenomenon, one comes to the conclusion that there is a lack of exposure for home-grown black actors.
It is often said that there is a natural aptitude for the stage that is ignored by prospective producers. As a race, black people display a natural rhythm—I add that the exception stands before you. Black people feel deeply and express it. I am reliably informed that those two qualities are necessary to create good performers. We cannot afford to allow that lack of exposure to continue. That would be to deny trained actors the right to practise their trade; and to deny our country real engagement with its rich diversity of talent.
In my view, it is impossible to set effective targets. I therefore look to the Government to reconsider how they fund ethnic arts and artists. Funding must be sufficient; it must allow black people autonomy; and it should recognise that in some communities—certainly in my community—it is impossible to raise the match funding that is often required. The lottery has given a grant to a black theatre company, the Talawa Theatre. Match funding has now become a nightmare. The Afro-Caribbean community cannot raise the large sums required to set up and run its own theatre. There is therefore no space for seed-bedding.
In her role as chair of the London Arts Board, Lady Hollick said:
"The innovative and dynamic work created by London's diverse arts community contributes to our capital's status as a world city".
268
Today, more than one in three Londoners are from black and minority ethnic groups. That represents more than half of the country's culturally diverse residents, yet there is not one theatre in London that is black-owned and black-led to be a showcase for black actors. We must do better.
7.16 p.m.
Viscount Falkland: My Lords, I am grateful to the noble Baroness, Lady Rendell, for introducing this debate on her Unstarred Question. I hope that she will feel encouraged after our contributions on what is a complex subject—racism generally and especially in the arts—to introduce a further debate to which more time can be devoted. In my attempt to reduce a complex subject to the proportions that I can discuss tonight, I shall have to fall back on some personal reminiscences.
As a young man first working in London, I was perhaps a little further to the Left than I am now. I was certainly much concerned with racism in this country. I was reminded of that the other evening when I watched an excellent programme on BBC4—now a beacon in public service broadcasting—that demonstrated the disastrous, sad and disgraceful treatment of West Indians in the immediate post-war period. Large numbers of West Indians who, having served in the forces during the Second World War, came here expecting—indeed, having been encouraged to expect—to become part of an integrated multiracial society were soon disappointed. I must mention that the noble Baroness, Lady Howells, who spoke about racism generally, made a moving contribution to that programme.
I used to discuss such matters and the frustration that one had with the lack of progress towards a multiracial society in this country with Lord Pitt of Hampstead, whom I remember fondly. He used to say to me: "My dear boy, if you see what happened to those great ideals in the post-war period, is it any wonder that the ethnic minorities have retreated back into their own cultures, rather than doing what we had all hoped that they would do: try to merge into a multiracial culture in this country?" That is so true and is partly responsible for the continued existence of racism in this country in the terrible way that it is manifest in some areas—that certainly applies to the Macpherson report.
The Macpherson report definition of institutional racism does not necessarily apply to the theatre. In the late 1950s and early 1960s, I worked close to the theatre and had the great honour of knowing quite well some performers from the ethnic communities. To give two extremes, I knew Ram Gopal, the great classical dancer and choreographer, and I knew a number of black actors, both male and female, who were just starting their careers in an area in which it was difficult to find work.
I also used to attend many of the drama school productions and was then concerned about how few students there were from the ethnic minorities. It was interesting to listen to the noble Baroness,

269
Lady McIntosh. I remember going to the Guildhall, where I felt there was a notable absence, despite the music—and we know of the contribution which people from the West Indies make to that. However, I imagine that after 40 years that has changed and that if I now went to drama schools I would find many young black actors. We see on television how talented so many of them are.
During the 40 years which have elapsed, the role of ethnic minorities has increased and changed in this country. Against the background I have described, we have seen a slow improvement. It has been based, at the worst, on blatant ignorance and seldom on pathological hatred such as the kind I witnessed at the Mosley meetings in North Kensington just after the war. I attended out of curiosity, and I saw that shamed figure unrolling maps at crucial moments in order to show the selected areas where under his scheme the races of the world were to be shoved. That confirmed me in my view that what we needed and wanted was a multiracial society, and I am as disappointed as many to find that that has not happened.
While there is blatant ignorance at one end of the spectrum, there is also, not only in this country but in others, as I discovered when I worked in business, often visiting Africa and other places, a deplorable lack of curiosity by Europeans about the culture of the countries in which they live and work for long periods.
Much has been said about the role of schools and education. I believe that that, too, is vitally important. I remember a debate in your Lordships' House on drama schools and theatre and the need to bring to students who were not making academic headway the usefulness of drama. The debate was picked up by a school in south London, which for the first time decided to put on a drama production, which ambitiously was "Macbeth". The entire cast comprised young black men. They had had a short time to prepare and the text was rough hewn in its production, but the energy and the enthusiasm were fantastic.
I attended one night, and there were several performances. The principal told me that the whole morale of the school had been changed by the production. He said, "It is better than football because they work together and enjoy it". It was a very physical production, but, nevertheless, think of the opportunities given to people from poor, ethnic minority back grounds in south London by having a whole new area of life opened to them. I wish that more schools did such things. Unfortunately, interest in politics and Hansard is diminishing, so they do not often read our debates. But I hope that someone in education will pick this one and put on another production. I do not care what it is—probably not "The Importance of Being Earnest", but something more suitable.
That leads me to the problems in the theatre which were dealt with by the noble Baroness, Lady McIntosh. In the professional theatre there is the imperative to attract and hold audiences. That must be balanced against the problems we are discussing
270
today. Understandably, much of the ethnic theatre is didactic and political, which is not often appealing to audiences, particularly in this country, who look for amusement and distraction. There is a great deal of frustration.
There is also the problem of suspension of belief which one must face. Again, the noble Baroness, Lady McIntosh, referred to that. She was right in saying that "Carousel" is wonderful. People from ethnic minorities can play English kings in opera productions because, like "Carousel", the structure is so extraordinary and imaginative that one can get away with things which cannot be done in the legitimate theatre.
In summary, the situation does not cause me great alarm because I have read the Eclipse report. It is most interesting and I have read it thoroughly. I do not agree with much of it, because it is too political and people are in too great a hurry. However, a deplorable instance is related by one contributor, Tiata Fahodzi, who is the artistic director of a well-known touring company. I am afraid to say that I am not familiar with his work. I shall not mention any names because ultimately he received an apology. But his account is an example of the clumsiness which occurs in this country where race is concerned.
The company was putting on a matinee performance and unfortunately computers were stolen from the building that afternoon. When the performance ended, the management saw fit to disregard the white actors but to take all the black actors and in full view of people leaving the theatre to strip-search them. That of course is disgraceful. It has to be said that an apology was made after the usual excuses one often hears on such occasions. However, that shows the extreme insensitivity which can occur.
I am much heartened by the contribution in the Eclipse report of Tyrone Huggins, Artistic Director of the Theatre of Darkness. I agree with his personal approach and I know his work. He has written a lot of interesting theatre and his attitude to the frustrations and anger felt by many of the ethnic communities is not to take the short-term view. To be realistic, one must take his approach. He hopes that in 20 years' time his nephews and nieces will look at his work and not see it as predominantly Afro-Caribbean but as part of the work of British black people. He hopes that 20 years on from that the situation will have changed, to the extent that people will be curious and interested in the origins of black people and that full integration and understanding will have begun. In conclusion, I want to quote that contributor. He asked whether he was guilty of excessive patience and lack of expectation. He said:
"I don't know and I honestly don't care. I'm playing a very, very long game. Things will change. They have to".
7.28 p.m.
Baroness Buscombe: My Lords, I, too, congratulate the noble Baroness, Lady Rendell, on introducing I he debate. As we have already heard, in April 2002 a number of English theatre groups released a report designed to tackle institutionalised racism in the

271
theatre. The report contains a strategy which is aimed at greatly improving opportunities for black, Asian and Chinese artists working in English theatres. The report addresses issues such as the number and seniority of staff from culturally diverse communities and the programming of work created by black, Asian and Chinese practitioners in theatre.
The Eclipse report was drawn up by the Arts Council of England, the Theatrical Management Association, the East Midlands Arts Board and the Nottingham Playhouse. It also had the backing of the wider theatre sector. It looked at the issues of governance, artistic programming, employment opportunities, professional development and audience development. It was also used to aid the implementation of the arts funding system's national policy for theatre in England, which places a priority on diversity and inclusion.
The recommendations of the Eclipse report followed two one-day conferences at the Nottingham Playhouse theatre in 2001. The aim of the conferences was to set out to encourage debate and solutions to institutional racism in the theatre, starting from the premise that institutional racism exists within the theatre sector. This was determined by the Arts Council statistics for 1998–99 that showed poor representation of black, Asian and Chinese people in particular on the boards and staff of English theatres, and by the findings published in the Macpherson report in 1999, to which the noble Baroness, Lady Howells, referred.
On 29th April this year, my noble friend Lady Anelay of St Johns asked the Government for their response to the Eclipse report. In particular, my noble friend referred to a target set of March 2003 for every publicly funded theatre organisation in England to have reviewed its equal opportunities policy and ascertained whether the targets set are being achieved, and, if not, to draw up a positive action plan to develop opportunities for African, Caribbean and Asian practitioners. At that time, the Government were not prepared to issue a definitive response, and so we look forward to the Minister's response today.
The Arts Council of England has emphasised the need for the theatre to engage with audiences and artists from a broader, more diverse range of backgrounds. There is a need for the theatre to reflect real life accurately. It is important that the theatre reflects the cultural diversity of society in the 21st century.
Clearly, there are funding issues that must be satisfactorily addressed. In addition, as noble Lords have said, we cannot underestimate the importance of effective training and education. The overall aim must be to ensure representation at all levels. This must mean artists, writers and producers, as well as all levels of management. At the same time, we have to be realistic. It is not only a question of meeting targets—for example, it is probably unrealistic to expect as broad a diversity of communities working in theatre in rural Dorset as in, say, Stratford in east London—there is also bound to be some tension between the
272
wish to attract particular audiences and the need to cover costs. Theatres have to be practical and measure supply and demand if they are to survive.
This particular point was discussed in some detail in a recent edition of the "Front Row" programme that I listened to on Radio 4. It featured Steven Luckie talking to Mark Lawson about an initiative called the "Eclipse Theatre", which is aimed at addressing the lack of black material, black audiences, actors and back-stage personnel in British theatre. Steven Luckie's emphasis happens to be regional theatre, and his initiative is operating in the new Wolsey in Ipswich, the Bristol Old Vic and the Nottingham Playhouse. One of the key priorities of the Eclipse Theatre is audience development.
Of course there are a number of ways to attract diverse audiences, and different objectives can be achieved which help to combat racism. For example, the National Theatre is currently in discussion with the Football Association with regard to the possibility of touring with a relatively new play by Roy Williams, who happens to be a major black playwright. The play is called "Sing your heart out for the lads" and is about a young, black British football fan and the challenges that he faces as a supporter. The aim is to put on this play for the benefit of young football supporters, an idea that links so well with current initiatives being pursued by several football clubs to combat racism.
It is important for those in the theatre to look to other cultural and artistic channels for examples of success in overcoming racism, both for the artists and audiences alike. Last Friday, I attended the official opening of the British Empire and Commonwealth Museum in Bristol. I was amazed to find, housed in this new museum, a purpose-built radio broadcasting unit. The museum had obtained a restricted service licence for 22 days to experiment with a new station called "Commonwealth FM". In the first weeks of the museum's life, the unit has broadcast in Punjabi, Somali, Cantonese and Arabic to audiences across Bristol. This museum had made the conscious decision to develop a project that would draw people in from the many different communities in and around Bristol and representatives from those communities were involved in making programmes, presenting, producing, running, editing and researching material of their choice.
Most of the groups covered issues faced by their own communities and, as the project began to gather momentum, individuals simply arrived at the museum having heard about the radio project and were encouraged to take part. The premise of Commonwealth FM was to make radio programmes. It has done this and, at the same time, broken down barriers, with a complete cross-section of age groups, nationalities and cultures all working together in what they can now feel is their local museum—a museum that celebrates diversity through our history. I wish the museum well and I hope that it will repeat this project with a new broadcasting licence in the near future.
Other examples of breaking down barriers from which those in the world of theatre may take heart must include the pop world and television. Role

273
models are surely key to setting the pace for change, whether they be Otis Redding, Freddie Mercury, Jennifer Lopez or Ms Dynamite. The MOBO—Music of Black Origin—Awards play a major part in generating role models and raising the profile of successful artists. On television, "The Cosby Show", the "Fresh Prince of Belair" and "Sister Sister" are great and attract massive audiences, although I do worry that such programmes are rather stereotypical and tend, because they have all black casts, to ghettoise community culture.
In contrast, on the breakfast show "Rise" on Channel 4 this morning, a broad representation of different cultures was present. In my view, this is the better route to effectively breaking down barriers.
This is a timely debate and, as the noble Viscount, Lord Falkland, said, much more could be said in support of all of those, including the Arts Council, National Theatre, the Nottingham Playhouse and others to whom I have already referred, for the valuable work that they have undertaken to combat racism. Of course, one thing that we must never lose sight of is consumer choice. While we support the overall objectives set out in the Eclipse report, consideration has always to be given to presenting works that people want to see, a point made very well by the noble Viscount, Lord Falkland.
In conclusion, I agree with Peter Hewitt, the chief executive of the Arts Council of England, when he talked about,
"the need to change the mindset and artistic theatre practice to reflect the diverse society of Britain in the 21st century".
It is hoped that the necessary commitment, financial investment and courage to meet this end will prevail.
7.37 p.m.
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, I, too, am most grateful to my noble friend Lady Rendell of Babergh for introducing the debate. It has raised a number of extremely important issues.
In considering the Question, I should like first to make the general point that the Government abhor racism and will do everything they can to ensure that it is eliminated from all forms of public life, whether in the theatre, sport, the way we are governed, the way we are policed, the way we are taught.
The Question asks whether the Government are satisfied with the progress in combating racism in the theatre. The answer has to be that as long as there is any question of there being racism in any walk of public life we must remain dissatisfied.
But let us probe the Question a little further. We should ask ourselves the direct question: is the theatre racist? To answer that we must ask ourselves, first, if the theatre deliberately discriminates on grounds of race in terms of those whose work it promotes and who it welcomes as its audience; and, secondly, whether it deliberately does not promote equality of opportunity.
274
Like the noble Viscount, Lord Falkland, my answer is that the theatre does not deliberately set out to do any of this but that sometimes it may do so unthinkingly. Black, Asian and Chinese artists still, perhaps with some justice, may not feel that they get enough exposure on the stage. Black audiences may not feel welcome in some institutions. We have to encourage a change of attitude so that talent will out in terms of artists, and audiences are broadened across all ethnic and social groups. What we have to do is to ensure that theatre, like other art forms, properly reflects the diversity of the population. That is a more helpful starting-point than accusing the theatre of racism.
I am not sure whether the Eclipse report, mentioned by nearly all speakers, definitively proves to us that the theatre is racist. What it does do is tell us that we need to ask a large number of questions about diversity and about discrimination, open or hidden. We need to examine funding streams, appointments to boards and management practice and programming policy. We need to go on asking whether the way in which theatre works allows it truly to reflect the society from which it springs. That is what it has to do.
I start from the belief that theatre, like all the arts. is about opening up possibilities and not about closing them down. It is about talent, not about prejudice. It is about offering opportunity for the spectator to watch interesting, stimulating performances and for the performer to realise his or her art. That is what is important—not the colour of someone's skin, but what he or she can do. Logically, in artistic terms, discrimination of any kind—except artistic discrimination and the ability to enable and support what is truly excellent—has absolutely no part in the modern theatre.
We have to face the facts, too. The Government do not run theatres; nor should they. Some theatres run with the help of public money. Many, including in the West End, run without any at all. So, when we talk about the theatre, we are not talking about homogeneous public sector institutions but about a mixed economy of public and private institutions.
Perhaps I may give some background detail to the Eclipse report. The report is an account of a conference funded by East Midlands Arts, the Theatre Management Association, the Arts Council and the Nottingham Playhouse. It represented the industry itself recognising its own failings and trying to see what more can be done. It is inevitably a snapshot of informed opinion, being an account of a conference that took place with a particular audience at a particular time; nevertheless, it gives us plenty of food for thought.
The conference was aimed at senior managers of middle to large scale presenting and producing theatres and was set up in response to discussions around cultural diversity and the roles and responsibilities of regional theatres.

275
The report is a useful contribution to the debate and has given the Arts Council a number of things to think hard about. It has identified key areas where funders can implement change. It contains some sobering facts, which may be of particular interest to my noble friend Lady McIntosh of Hudnall and to the noble Lord, Lord Chan. Employment representation in English theatre for African, Caribbean and Asian staff was 4 per cent in 1998. The latest figures show that this improved to 4.8 per cent in 2001. African, Caribbean and Asian board members represented 3.5 per cent of all members in 1998. That rose quite substantially to 6.3 per cent in 2001. There is clearly some way to go despite those improvements.
Responding to my noble friend Lord Parekh—I am most grateful to him for his generous comments—I should like to add just how much I have learnt from him about the broader area of racial equality in this and other societies. However, I would say to him that both my right honourable friend the Secretary of State and I do take the figures that I have just quoted extremely seriously.
The Arts Council, too, is taking the Eclipse report seriously. It is tackling issues of management and governance. It is running regional seminars on positive action and equality of opportunity. A lot of work here is to clarify legislation that already exists through the Race Relations Amendment Act and equal opportunities policies.
Regional Arts Council officers continue to visit the theatres that did not attend the Eclipse conference; and, as part of their funding agreements for 2003–04, all funded theatres are required to review their equal opportunities policies and to set up a positive action plan. I think that that provides the noble Baroness, Lady Buscombe, with the reply that she was seeking. All theatres involved are to be assessed on an on-going basis, with the emphasis in the first instance being on what support is needed from the regional officers.
Perhaps I may mention one or two other initiatives. The Arts Council is working to improve the numbers of black and Asian actors working in the subsidised theatre and, together with arts and business, it is introducing board training for blacks and Asians. The Arts Council is also launching Decibel—mentioned by my noble friend Lady Rendell—which is a diversity project whose mission is to challenge perceptions of the arts in England to reflect contemporary British society, thus encapsulating the whole ethos of what the Government aim to achieve. Five million pounds has been allocated to that project which will support the national programme of events next year.
The Black Regional Initiative in Theatre is another key strategic development scheme that seeks to develop a more equitable black and Asian theatre across the country.
One way of encouraging change is through funding, as my noble friend Lady Howells of St Davids, implied. Apart from using funding agreements to ensure equal opportunities and positive action, the Arts Council is using the funding system to try to make
276
significant changes to the balance of what is funded. In 2001, the Arts Council of England gave a significant boost from lottery funds to the Capital Arts projects, with £29 million being allocated to black, Asian or Chinese arts organisations. Again, this was mentioned by my noble friend Lady Rendell. It is a major step forward.
In addition, in distributing the new £25 million of theatre money from the last spending review, 10 per cent was reserved for ethnically diverse projects— again, a major step forward. For example, Leicester Haymarket will receive an additional £400,000—a 41 per cent increase—to allow it to increase its focus on South Asian theatre.
Perhaps I may give one or two other examples of good practice. Around the country, we do see signs of progress. The Leicester Haymarket is one of the most exciting examples of a theatre meeting its communities' needs. It is the only building base producing theatre with a black artistic director—Kully Thiarai—who is joint artistic director with Paul Kerryson. The work presented at the Haymarket reflects the communities of Leicester in every way. It is an example of the arts infrastructure taking into account the demography of the city in which it is located. The theatre's programming policy is inclusive, casting actors regardless of their race but ensuring that they reflect the local community.
A further example of how energy and collaboration can bring about real results is the creation of Eclipse Theatre. In direct response to the report, Nottingham Playhouse has joined forces with the New Wolsey Theatre, in Ipswich, and the Bristol Old Vic to launch a range of initiatives to develop the national profile of black middle-scale regional theatre.
The Playhouse, the New Wolsey and the Bristol Old Vic will be producing three major pieces of black theatre, the first of which will be a production of Errol John's classic play, "Moon on a Rainbow Shawl" in February next year, directed by the acclaimed black director, Paulette Randall.
Good practice should not just be adopted by the subsidised theatre. We need to see it in the West End too. The success of the West End in promoting shows such as "Umoja" and "Bombay Dreams", which have drawn ethnically diverse audiences to the theatre, is something to celebrate.
As I said at the beginning, I do not think that we should conclude that the theatre is institutionally and systematically racist—but we can conclude from the available evidence that in terms of employment practices it needs better to reflect the diversity of the population; and the theatre must always ensure that it is attracting as wide an audience as possible.
I am glad that we can show that progress is being made. If we tackle the issue of diversity properly, we should in time eliminate racism. I am confident that through the example set by theatres such as the Nottingham Playhouse, the Leicester Playhouse and Tricycle, through the continuing influence of the Eclipse report and the continued action of the Arts Council and the commercial sector, progress can be

277
sustained. But there is still more to do. Am I satisfied with progress? So long as there is progress still to be made in any aspect of policy, I, for one, will not be satisfied. But I am reasonably confident that common sense and pragmatism will prevail. Certainly, as a Government, we will continue to work with ACE and others to try to bring about the necessary changes.
278
Finally, to pick up a comment by my noble friend Lady McIntosh of Hudnall, I hope that will mean that before long we will no longer need to comment on the fact that a superb performance of "Hamlet" was by a black actor rather than that it was by an outstanding classical actor.
House adjourned at nine minutes before eight o'clock.