Lords Sitting of 3 February 2003

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.

Illegal Immigrants: Transport Fines
Earl Attlee: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I remind the House that I hold several honorary positions in trade associations.
The Question was as follows:
To ask Her Majesty's Government why, in the aftermath of the International Transport Roth case, they are treating those who paid their civil penalties for carrying clandestine entrants differently from those who did not.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, the civil penalty regime that operated until 8th December 2002 was not found to be unlawful by the Roth judgment. Consequently, penalties issued under the regime were lawfully imposed. Where penalties have been paid, liability has been accepted and the Government are under no obligation to return them. While it would be open to us to take action against those who have not paid their penalties, we consider, in the light of the Roth judgment, that such action is not appropriate.
Earl Attlee: My Lords, I thank the Minister for his reply. Is not the reality that the operators paid their fines because the Secretary of State impounded their vehicles and that if they had not paid the fines in order to get their vehicles back they would have gone bankrupt?
Lord Filkin: My Lords, no, that is not the case. Some 50 per cent of the fines were paid by transport
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operators whose vehicles had not been impounded. Where vehicles were impounded, it was perfectly open to operators, if they wished, to provide an alternative form of security while still contesting the fine.
Lord Dholakia: My Lords, if the Minister looks in Hansard he will see that we objected to this piece of legislation during the passage of the Nationality, Immigration and Asylum Bill. I think the Roth judgment has proved that we were right. Does the Minister consider that many firms paid up because the law was stacked against them? More importantly, they did not feel they wanted to waste more resources and time fighting something they were unable to defend at that stage.
In the light of that, does the Minister consider it appropriate to allow them at least a court hearing and for the court to decide, on the basis of the Roth criteria, whether or not their money should be refunded?
Lord Filkin: My Lords, no, because essentially the scale of the clandestine immigration problem requires a tough response. I do not need to remind the House of how serious that response should be. We cannot see any benefit in letting off people found to be in breach of legal requirements on vehicle security who have paid the appropriate penalties.
We are not asking a lot of transport operators. We are simply asking that they comply with a code of conduct and check that their vehicles are secured. That would cost them very little in capital equipment and in time. There have been persistent high levels of evidence that transport operators have allowed their vehicles to come into the country without checks having been put in place. It is essential, therefore, that we provide an incentive for them to take their responsibilities more seriously.
Lord Berkeley: My Lords, perhaps my noble friend can clarify one or two matters. I understand that the Question concerns lorry drivers who were charged with bringing in people before the Roth case. Is it true

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that those who paid will not be getting their money back, while those who did not pay and contested the fine will not have action taken against them? Is that not a bit of a legal nicety and rather unfair on those who paid?
Lord Filkin: My Lords, I refer my noble friend to the Answer I gave to the noble Earl, Lord Attlee. In essence, approximately £2 million was paid before the Roth judgment. Of that, about £350,000 was paid by UK transport operators and the remainder by foreign operators. I can only repeat what I have said already: we can see no justification for repaying the money. It is essential that a clear signal is given to transport operators to comply with their responsibilities to secure their vehicles and stop clandestine immigrants getting into this country.
Lord Tebbit: My Lords, would it not be more effective if the Government deported illegal immigrants as soon as they were discovered instead of directing them to the nearest welfare agencies? Can the noble Lord say whether he thinks the Government's reputation for fairness and justice will have been enhanced by the Answer he gave today?
Lord Filkin: My Lords, no, I do not think it would be more effective to seek to deport people in the circumstances the noble Lord describes. All the evidence is, and common sense dictates, that it is far more effective to stop people getting here in the first place if they are essentially economic migrants using an asylum route. That is why we expect transport operators to co-operate with us in stopping illegal migration into the country. I am certain that on reflection the noble Lord will support an approach which says that it is much more sensible to stop them getting here in the first place rather than having to support them while they go through the procedures under the asylum Acts.
Lord Campbell of Alloway: My Lords, if one has an object that is laudable but where nonetheless the law should not have been enacted, how can penalising and then refusing to refund the penalty be justified? How can that be equitable in any sense?
Lord Filkin: My Lords, because the Court of Appeal did not feel that the Act was unlawful. It found that a flat fine at a high level was potentially disproportionate to the circumstances, which was why, under the Nationality, Immigration and Asylum Act, we brought in the provision making it possible to levy differential fines in those circumstances.
To give the more specific legal answer, Section 4(6) of the Human Rights Act states that,
"('a declaration of incompatibility')—
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made".

Government Office for London
2.43 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What are the functions of the Government Office for London within the Office of the Deputy Prime Minister; what are its relations with the Mayor of London; and what involvement it has in Transport for London's Underground operation.
Lord Evans of Temple Guiting: My Lords, the Government Office for London—one of nine regional government offices—delivers programmes for nine government departments and promotes London within government. It acts as a contact between government departments and the Mayor and the Greater London Authority. London Underground is directly sponsored by the Department for Transport.
Lord Peyton of Yeovil: My Lords, how very interesting. Does the noble Lord agree that the time has come for action on the London Underground, and that the parties concerned—or an awful lot of them— should stop arguing with, and blaming, each other, and start worrying about the misery and torture endured by passengers under this system? I do not wish to leave out any member of the infamous team: the Deputy Prime Minister, the Chancellor of the Exchequer, the Secretary of State for Transport, the Mayor of London, Mr Kiley and his team, from whom we had hoped for so much, and London Transport. The problem has gone on for so long as to be absolutely disgraceful. One is tempted to think that the Government have grown so much as to become like a very fat man who is unable to see his own feet anymore and, therefore, has no idea where he is going.
Lord Evans of Temple Guiting: My Lords, the criticism of the noble Lord, Lord Peyton, is a little on the extravagant side. In spending £15 billion on transport in London, this Government are making up for years of neglect of the London Underground. With the plans for PPP almost in place, we are now at the beginning of the end in improving the London Underground.
Baroness Scott of Needham Market: My Lords, the travelling public in London are dismayed that, following the accident at Chancery Lane, the Central line is to remain closed for several more weeks for track inspections. Does the noble Lord agree that that suggests that, like Railtrack before, London Underground's knowledge of its own tracks is less than we should expect? Given that background, is he still confident that the financial arrangements for the PPP are valid?
Lord Evans of Temple Guiting: My Lords, to answer the second question first, we are absolutely confident that the arrangements for PPP are secure and valid. Everybody regrets the accident at Chancery Lane.

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London Underground has announced that it will be two weeks before the service returns to normal. The problem is that new bolts must be put on 2,800 motors on the 700 trains involved, which will take 5,600 hours. The Health and Safety Executive is insistent that nothing should return to normal until all that work has been carried out and it is confident that the Tube its safe and secure for its customers.
Baroness Hanham: My Lords, in view of the delays now experienced on the London Underground, and the Minister's response, which suggests that there will be further delays on the Tube, do the Government intend to put pressure on the Mayor of London to delay the implementation of his notorious congestion charge?
Lord Evans of Temple Guiting: My Lords, my announcement was contained in a London Underground press notice issued last Thursday, so there is nothing new in what I say. Congestion charging starts on 17th February. It is entirely for the Mayor and his staff to decide whether there should be any delay in implementing it. But we see no reason why there should be, because it is essential that the congestion charge, which we hope will be a success, is seen as a way of reducing the appalling congestion in London.
Lord Stoddart of Swindon: My Lords, the noble Lord says that the Tube is safe and secure for travellers to use. But, is it not a fact that the Mayor of London last week warned Londoners that the Underground was unsafe? Did the noble Lord see that report? Clearly, he does not agree with it; but does he think that it was wise of the Mayor of London to issue the statement only three weeks before introducing the congestion charge?
Lord Evans of Temple Guiting: My Lords, I was not aware of any such article in the Daily Mail. A picture on the front page of the Evening Standard purported to be of a rail, but it was not. I do not think that I said that the Tube was absolutely safe. I said that, only when work is completed and the Health and Safety Executive says that the Tube is safe, will the Central line reopen and run as efficiently as we hope it always will.
Baroness Gardner of Parkes: My Lords, in response to my noble friend's question on whether the Office of the Deputy Prime Minister or the Government Office for London has made any approach to the Mayor, the Minister said that it was entirely a matter for the Mayor. But my noble friend asked whether the Deputy Prime Minister or the Office for London made any approach. Is the Minister not aware of the desperate difficulty that people are having in getting home at the moment? Surely, that must be aggravated by the congestion charge.
Lord Evans of Temple Guiting: My Lords, people are having appalling difficulty getting home at the
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moment, first, because of the accident on the Central line and, secondly, because of the weather. Congestion charging does not start for two weeks. Therefore, it is difficult to blame it for the present conditions.
Lord Faulkner of Worcester: My Lords, will the Minister confirm that the safety record of London Underground, far from being poor, is exemplary? In terms of safety, it is the envy of many capitals around the world. Will the Minister also confirm that safety remains paramount in any new financing arrangements for the Underground?
Lord Evans of Temple Guiting: My Lords, I confirm that both those statements are accurate.
Lord Howell of Guildford: My Lords, when the Minister says that the congestion charge is entirely a matter for the Mayor of London, is he correct? Is he aware that, under the Greater London Authority Act, powers are available to the Secretary of State to vary and to exempt certain groups and persons from the charges and penalties under the congestion charge? Will the Minister reconsider whether penalties and charges could be varied and groups protected? People are being badly hurt, not merely due to the Central line fiasco and tragedy. They are unable to contact the central administration of the congestion charge authorities to determine how to pay.
Lord Evans of Temple Guiting: My Lords, the detail of congestion charging is a matter for the Mayor and his staff. As regards the first point made by the noble Lord, Lord Howell of Guildford, yes, it is right that in certain circumstances there can be intervention from central government. However, within the context of the questions I was being asked, I did not consider that central government would so intervene.

Legal Aid Scheme
2.52 p.m.
Lord Clinton-Davis Lord Clinton-Davis asked Her Majesty's Government:
How many firms of solicitors withdrew from the legal aid scheme in 2002.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, the Legal Services Commission does not collect data in a way that allows me to answer the exact question that the noble Lord, Lord Clinton-Davis, has asked. At the start of 2002, 2,919 solicitors' offices had criminal defence service contracts. At the end of the year, there were 2,909—a net loss of 10. There were 4,938 solicitors' offices that had general civil contracts in the Community Legal Service at the start of the year and 4,681 at the end—a net loss of 257.
Lord Clinton-Davis: My Lords, 'while I thank my noble friend for her Answer, is she aware of the deep dissatisfaction of local firms which have neither the

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inclination nor the resources to carry on doing legal aid work, both in the civil and criminal sense? Is she further aware that a number of practitioners say that they are thoroughly demoralised and have reached breaking point as a result of what has happened to the legal aid scheme? Finally, what is to happen to clients who need legal aid?
Baroness Scotland of Asthal: My Lords, we are aware that the profession expressed unhappiness about the level of remuneration. It was only when this Government came into office that there was an increase, after a significant period of time. Therefore, we are aware of those concerns. I reassure my noble friend that, within the limits of resource constraints, the Government are doing all that they can to meet the concerns being raised in relation to remuneration and other matters.
Lord Phillips of Sudbury: My Lords, I declare an interest as a practising solicitor whose firm is stupid enough to have a legal aid certificate. Is the Minister being a little anodyne in those replies? There is, if not a catastrophe, a serious crisis developing. If she doubts me or the Law Society or the Legal Aid Practitioners Group, she may have read the annual report of the Legal Services Commission. What does the Minister think of this? The report states:
"We are picking up intelligence through our regional offices that up to 50% of firms are seriously considering stopping".
It continues:
"Our studies show that at current legal aid rates many firms are at best marginally profitable".
Is that not a crisis?
Baroness Scotland of Asthal: My Lords, there is not a crisis. First, the noble Lord's firm is not in the least bit stupid to continue legal aid. I commend it on its good judgment, and its service to the public. The noble Lord, Lord Phillips of Sudbury, will know that legal aid, solicitors, and those who work funded by legal aid, provide a wonderful service. I understand his concerns. The Government are considering what the justification is for any withdrawal from legally aided work. That is an issue under constant review. I reassure the noble Lord that on a monthly basis the figures are being reviewed to ensure that there is proper legal aid coverage throughout the country.
Baroness Buscombe: My Lords, the Minister will know that since the introduction of the new contracting arrangements and the Legal Services Commission, the number of solicitors firms giving legal advice, funded by legal aid, on family law has seriously declined. What are the Government doing to protect the interests of those who need such advice in areas which now have no cover?
Baroness Scotland of Asthal: My Lords, as I have already said, we have recognised for some time that there are potential problems in these areas. We take those concerns seriously. We know that the profession
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is unhappy. We are monitoring the supply on a monthly basis to the commission. At present, there does not appear to be a widespread problem in providing adequate cover in England and Wales. Those are the issues with which we have been exercised for some time. I assure the noble Baroness, Lady Buscombe, that the particular issue in relation to family law practitioners is one on which we are keeping a careful eye.
Lord Taylor of Blackburn: My Lords, has not the situation occurred because of abuse of the system by certain people?
Baroness Scotland of Asthal: My Lords, I cannot respectfully agree with my noble friend. Anecdotally, concerns have been expressed about whether there has been abuse. We make every effort to audit firms to ensure good quality. However, it would not be fair to state that the problems currently faced are as a result of abuse throughout the system.
Lord Alexander of Weedon: My Lords, I declare an interest as chairman of Justice, the all-party law reform group. First, I am grateful that the Minister has emphatically refuted the suggestion that this problem is caused by abuse. Is she aware that Justice takes a similar view to the noble Lord, Lord Phillips? This is an issue for litigants, not for lawyers, although lawyers give the service. Is the Minister aware that we take the view that this is the closest we have had to a crisis for a considerable number of years?
Baroness Scotland of Asthal: My Lords, I understand that that is the view being expressed. As I have already said, we are absolutely determined that there should be a proper maintenance of cover throughout the country. We are monitoring the situation carefully. We are taking every opportunity to encourage younger people to enter the profession, and to help others do legally aided work. Of course, we are restrained by the resources available. I reassure the noble Lord that, within the resource constraints, not only do we value those practitioners who do legal aid work, but we very much want them to continue. We shall continue to do all that we can to ensure their valuable work is available to the members of the public who desperately need it.
Lord Ackner: My Lords, is the crisis exacerbated by the setting up of the public defender who will be in competition with the private solicitors for public funded work?
Baroness Scotland of Asthal: My Lords, I do not think that that is right. Noble Lords will know that only six offices have been set up. The areas have been carefully chosen as a means by which the Government will judge exactly the nature of the work undertaken and the quality of the work given. We do not perceive that this will cause any unhelpful competition with other practitioners.

PFI Procedures
3 p.m.
Baroness Sharp of Guildford Baroness Sharp of Guildford asked Her Majesty's Government:
What changes they have made in private finance initiative procedures as a result of the shortcomings revealed by the Audit Commission report on experience with private finance initiatives.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, the Audit Commission's report found that, while teaching staff and pupils were generally pleased with their new schools, there had been some difficulties with procurement and design. However, the report focused only on a small number of very early PFI pathfinder schools. Since then, as the report itself makes clear, the department has refined and improved the schools PFI process and will continue to do so.
Baroness Sharp of Guildford: My Lords, I thank the Minister for her reply. She is, however, not explicit as to what the ministry has done as a result of the Audit Commission's report. She will be aware that there are over £2.5 billion-worth of PFI contracts outstanding in the schools sector, and that it is in effect the only game in town for LEAs that wish to renew and upgrade school buildings. Is that wise? Is not one of the lessons of the Audit Commission's report that public benefits from competition in tendering procedures are considerable, and that the inclusion of a straightforward public sector option in compulsory competitive tendering techniques might yield better value for money?
Baroness Ashton of Upholland: My Lords, in looking at the Audit Commission's recommendations, the noble Baroness might see that we have taken on board or are already working on the vast majority. Where we do not agree with the Audit Commission is in its view that there should be a straight option between public sector finance or the private finance initiative.
The current capital for schools this year is £3 billion. Of that, 72 per cent. or £2.15 billion, is in conventional capital, and only £850 million, or 28 per cent. is in PFI credits. Thus far, 500 schools are covered by the PFI and 400 more are in the pipeline. We believe that this is a good deal for local education authorities.
Baroness Blatch: My Lords, what would be the quantum of the department's obligation to the PFI if the figure were to appear on balance sheet as opposed to off balance sheet?
Baroness Ashton of Upholland: My Lords, I am happy to confirm the figures that I have in front of me: of the £3 billion-worth of capital that we have, 72 per cent is in conventional capital. £850 million, or 28 per cent. is in PFI credits for this year. I am, of course, happy to give a running total to the noble Baroness
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and to place a copy in the Library. A total of £1.3 billion in private sector investment is going into our schools—often in very creative and innovative ways. It is a huge asset to the education service.
Lord Clement-Jones: My Lords, does not the Audit Commission's report simply confirm what many of us have known for a long time; namely, that in many key areas PFI represents poor value for money? Is it not high time that the Government accepted that and therefore ceased to skew the whole of the financing of both health and education away from public sector finance and towards the PFI?
Baroness Ashton of Upholland: My Lords, I do not agree. The noble Lord may be aware that all projects are required to have a public sector comparator before entering procurement. That comparator is continually refined to reflect current needs. We look at the lifetime of the PFI contract because part of the purpose of the contract is to enable us to have at the end of it stock for our country that is able to be used and is of good quality. In addition, it enables teachers to concentrate on teaching—and in the health field, in which the noble Lord has a particular interest, it enables doctors, nurses and managers to concentrate on running the NHS—without worrying about buildings and maintenance.

Community Health Councils: Abolition
3.3 p.m.
Earl Howe: My Lords, I beg leave to ask a Question of which I have given private notice; namely:
Whether, in the light of Her Majesty's Government's announcement that community health councils are to be abolished on 1st September 2003, every NHS trust and primary care trust will have a fully functioning patients forum and independent complaints advocacy service by that date.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the intention of the Commission for Patient and Public Involvement in Health is to have patients forums in place as soon as possible from 1st September. From that date there will be: new, different and better ways of supporting patients; patients' advice and liaison services; overview and scrutiny committees; expert patient programmes; patient environment access teams; and a duty on the NHS to involve and consult independent complaints advocacy services and the commission itself.
Earl Howe: My Lords, does the Minister recall that during the Committee stage of the National Health Service Reform and Health Care Professions Bill last April he gave an explicit assurance that CHCs would not be abolished until patients forums were in place and that no gaps would be left in the system? Am I right in understanding from his reply that some areas

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of the country may not in fact be served by a fully functioning patients forum or advocacy service until some indefinite time after 1st September? Is that not a very serious matter? Will the Minister take it upon himself to ensure that the Government's decision about the abolition date is revisited with the utmost urgency?
Lord Hunt of Kings Heath: My Lords, it was certainly the intention to ensure that CHCs remained in place and that there would be a smooth transition programme. The fact is that it is becoming clear that many CHCs are facing problems in terms of losing both their staff and their membership. The judgment has been made that it would be better to give people a clear date for the winding up of community health councils, at the same time ensuring that the mechanisms that we are putting in place—including patient advice and liaison services, overview and scrutiny committees of local government and all other mechanisms—will be put in place as quickly as possible.
Lord Clement-Jones: My Lords, is the Minister aware that our suspicions are being confirmed by what he and his colleagues have said over the past few days, with under-resourcing and delay taking place in the formation of PALS and ICAS. What are the Government doing to secure the continuing services of experienced CHC staff in the gap between 1st September and the creation of PALS? What assurance can the Minister give about the creation of the independent complaints advocacy service, which is vital and on which no information has been given?
Lord Hunt of Kings Heath: My Lords, in terms of funding, the noble Lord will know from our previous debates that we are still discussing the exact amount of funding to be made available, but that it will undoubtedly be more than CHCs are currently allocated. So far as concerns independent advocacy services, of course it is our intention that those services will be available to all people in England from 1st September. The Commission for Patient and Public Involvement in Health will be operating a national helpline. We will, of course, ensure that any paperwork in relation to individual complaints will be transferred to the appropriate body around 1st September.
Lord Astor of Hever: My Lords, why have the Government put the cart before the horse? If there is to be a seamless transition from CHCs to the new arrangements, what is the sense of abolishing CHCs before knowing whether those new arrangements can be delivered on time?
Lord Hunt of Kings Heath: My Lords, many of the new arrangements are either in place or being put in place. If we were to maintain community health
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councils beyond 1st September this year, there would be real problems in relation to the employers, the people employed by those organisations and their members. It makes much greater sense to have a clear date for the winding down of CHCs and to get on as speedily as possible with the appointment of the patients forums—but that will take a little time—and to ensure that services such as independent advocacy, patient advice and liaison services and the role of local government in independent scrutiny are indeed in place as much as possible.
Baroness Noakes: My Lords, does the Minister recall giving an assurance when the House was in Committee considering the National Health Service reform Bill last April that arrangements would be in place to involve and consult all stakeholders? Therefore, will the Minister explain why it is that neither CHCs nor ACHCEW have been consulted about the date of their abolition?
Lord Hunt of Kings Heath: My Lords, in the end, Ministers make these decisions. There have been many discussions with CHCs and their association about these issues. The distinct view that was expressed to us was that there was a need for an early announcement. That is why we made the announcement—so that people know when the due date is and have time to prepare for it.
Baroness O'Cathain: My Lords, does the Minister mean that by 1st September there will be no gap between the current situation and the new regime? Secondly, following the question put by my noble friend Lady Noakes, is the Minister saying that consultation will not take place, that a decision has been made; or will consultation have taken place and will everyone be happy by 1st September?
Lord Hunt of Kings Heath: My Lords, I think I have made it clear that the decision has been made by Ministers that 1st September should be the date on which CHCs are to be abolished. It is to everyone's advantage that the date is known. We will of course be working very hard to ensure that there are no gaps. I have said that independent advocacy will be available from that date throughout the country. The paperwork that CHCs are involved in will be transferred to relevant organisations. Some 75 per cent of all NHS trusts already have patient advocacy liaison services in operation, and that number is rising every week. Local authorities have the powers they need to make sure that their overview and scrutiny committees are working effectively. So while patients forums will not all come into operation on 1st September, I am assured that sufficient and adequate services will be available to ensure that the public can make complaints and be supported, and that there are areas where they can express concerns about NHS services.
Lord Carlile of Berriew: My Lords, will the Minister give an undertaking that the specialist advocacy services available to patients suffering from mental illness and to children will continue in force seamlessly after the reforms? Does he recognise how welcome the retention of community health councils in Wales has been because it will ensure the seamless continuation of those very services?
Lord Hunt of Kings Heath: My Lords, it is a matter for Wales to decide what it wishes to do about community health councils, and the Assembly has made its decision. For the English NHS, I believe that the improvements, the advocacy arrangements and the role of local government add up to a much more powerful involvement of the public in the NHS than CHCs. with their patchy record, have ever been able to provide. On specialist advocacy, I agree with the noble Lord, Lord Carlile. The intention is that, in providing an independent advocacy service throughout the country, there will be sufficient specialist services available for the very care groups that the noble Lord has mentioned.
Lord Tebbit: My Lords, when did the noble Lord discover that the undertakings he gave in Committee could not be fulfilled?
Lord Hunt of Kings Heath: My Lords, these matters have been under discussion for some time. The department has been involved in discussions with the new chair of the Commission for Patient and Public Involvement in Health. The decision on whether and on what date CHCs were to be abolished was finally made last week. A written Statement was made in the House of Commons on Friday. I made this known to opposition spokesmen on Thursday. I believe that every consideration has been given and the right decision has been reached.
Baroness Carnegy of Lour: My Lords, the fact remains that despite all the Minister's words justifying what has happened, the Government made a promise to Parliament and Parliament made a decision to allow them to have their way because of that promise. They have now broken that promise. Are the Government not the slightest bit ashamed?
Lord Hunt of Kings Heath: My Lords, the noble Baroness ignores the fact that most of the elements concerned with improving patient and public involvement will be in place. The problem with the abolition date is that community health councils are haemorrhaging staff and members. It would not make sense to go for an extended date; it is better to go for 1st September and to do everything that can be done. The new independent Commission for Patient and Public Involvement in Health is the key agency in ensuring that patients forums are in place. It is better to concentrate on moving as speedily as we can, but it would serve nobody to keep CHCs in being after 1st September.

Business
Lord Grocott: My Lords, with the leave of the House, at a convenient time after 3.30 p.m., my noble and learned friend the Leader of the House will repeat a Statement on Iraq.

Waste and Emissions Trading Bill [H.L.]
3.15 p.m.
Report received.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 1:
Before Clause 1, insert the following new clause—
"TRANSPORT OF WASTE
(1) The Secretary of State shall by regulations make provision for waste disposal authorities in each area to reduce, from year to year, the threat to the environment from the transport of waste.
(2) Regulations made under subsection (1) shall—

(a) make provision for the steady decline in the number of miles travelled per tonne of waste taken to landfill in each of the following categories—

(i) inert waste,

(ii) hazardous waste,

(iii) biodegradable municipal waste: and

(b) make provision for the steady decline in the quantity of emissions harmful to the environment released through the transport of waste to landfill, particularly—

(i) carbon dioxide,

(ii) particles,

(iii) benzene,

(iv) carbon monoxide.

(3) Regulations made under subsection (2) shall specify for each area—

(a) the starting point from which the decline in miles travelled will be measured;

(b) the level of decline in miles travelled to be achieved by each target year;

(c) the starting point from which the decline in emissions will be measured; and

(d) the level of decline in emissions to be achieved in each target year.

(4) Regulations made under subsection (2) shall provide for the supply for the financial year 2004–05 by each waste disposal area—

(a) the miles travelled and tonnages of waste in each category listed in subsection (2)(a) transported to landfill, and

(b) the emissions produced during that process.

(5) The Secretary of State must consult the devolved authorities before specifying the quantities under subsection (3).
The noble Lord said: My Lords, we all produce an enormous amount of waste and, having produced it, our interest in it ceases. I make no comment on the fact that I am waiting for Members to leave the Chamber,

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but this subject, which is essential to the whole of society, generates little heat in normal political discussion.
The first group of amendments relates to the transport of waste. If the producing and disposing of waste are offensive to people—the nimby attitude is immensely strong, everyone hoping that their waste will go somewhere else—the transport of waste is equally controversial. Transport spreads pollution in all sorts of places. Most waste is transported by road. That leads to damage to country roads and to the countryside, and to the spread of atmospheric pollution. If streams of heavy lorries run through small rural communities, the residents are, not unnaturally, upset. One of the gaps in the Bill—a measure aimed specifically at biodegradable municipal waste—is that it does nothing about transport.
Amendment No. 1 represents my first thoughts on how to tackle this issue. The amendment is very prescriptive and probably too detailed. It is based on a number of recent decisions to which my attention was drawn by a nephew. Sometimes relatives have their uses, and even heredity has its purposes. One decision was a court case; the second and third were the results of planning appeals.
The court case related to a claim brought against Surrey County Council as a result of the council having granted planning permission for an energy-from-waste plant near the village of Capel on the south-western boundary of the county in preference to other sites at Redhill and Guildford. The claimants held that the decision was unreasonable because both Redhill and Guildford were nearer to the source of the waste to be treated.
The case was complex—I am inevitably having to précis pages of report—and involved planning procedures and administrative process. But the judgment was that the grant of planning permission should be quashed. Among the reasons, the judge cited the proximity principle as a significant matter. The proximity principle is part of the European directive at Article 9, and Article 10 follows on from that. The judgment raises that directive and the question of the proximity principle to a matter of significance in dealing with applications for waste disposal facilities.
The second case that I found interesting relates to the Edmonton incinerator, where an application for an extension of the use of the site—again, for an energy-for-waste project—was turned down on appeal to the Minister on the ground that the extension would lead to the importation of waste from outside the immediate area served by the incinerator. I shall not go over all the background details, but it is significant that the decision supports the concerns that we are expressing about the transport of waste and the need to reduce transport distances wherever possible.
The third case concerned a similar refusal of planning permission on appeal—this time in Bedfordshire. In that instance, the main reason for the refusal was that the applicant was relying on importing
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waste using rail transport, but he failed to show that there were waste sources that wanted to use the rail transport that he was expecting to have provided.
It is a considerable pleasure to report these matters to the House because they show, as so often, that the Government are doing the right thing. In the light of those examples, it might be tempting to argue that Amendment No. 42 and the others in the group are superfluous. However, I argue that they are not. The Bill gives us an opportunity to ensure that we put every incentive on waste disposal authorities and those who have to deal with waste to operate in the most businesslike, economical, efficient and environmentally acceptable way. I am the first to accept that I may not have got the wording of my amendment perfect, but it is the best I can do as a layman's first shot.
Amendment No. 62 contains two subsections, which deal with a particular situation. Subsection (1) says that a waste disposal authority can dispose of waste within its boundaries, as it should, but must use the nearest facility that it can to the source of the waste and should consider the best practicable environmental option. It would be unusual for a waste disposal authority not to do that within its own boundaries, but we are in the business of persuasion. Existing waste disposal practice is not always as rational as we might wish.
Subsection (2) of the amendment is necessary because the present arrangements seem to create an anomaly. Many authorities, particularly in inner London and some other major metropolitan areas, have no facilities to dispose of their own waste. Such authorities can contract to dispose of that waste wherever there is a facility that has the capacity to handle it. They do not need to apply to the authority in the area that will receive that waste. In a sense, there is no consultation in those new arrangements. Clearly, the receiving authority will be aware of the existence of the disposal facility. The planning system would be bound to make the authority aware and environmental monitoring would probably keep it reasonably up to date with what was happening on the site. However, the local authority is not able to express a view if someone asks the facility to take another million tonnes—or whatever—of waste. That is peculiar. I heard of one inner London borough deciding to dispose of its waste in an outer London borough, which had no opportunity to express a view. That is permissible. Subsection (2) deals with that anomaly.
Amendment No. 69 seemed worth putting forward for clarification. I extracted the definition from a regulation. I thought it would be useful to have the wording in primary legislation. Some environmental bodies increasingly tend to equate anaerobic fermentation with incineration. It is not incineration and it is not environmentally polluting, apart from the fact that the waste has to be transported to the site. It leads to the production of green fuels, as opposed to carbon dioxide and so on. I thought it would be useful to put that into primary legislation to kill that argument from environmental lobbies.
Those are the reasons for the amendments. They are well found and are in accordance with what is increasingly becoming general practice. However, I thought it worth advancing the amendments to ensure that these measures were general practice rather than just on the way to becoming so. I beg to move.
Lord Livsey of Talgarth: M y Lords, my noble friend Lord Greaves is ill. Until about midday he was going to lead on this Bill, but he is now unable to do so. I shall try to make the best of it. I was going to act in a supporting role, but I shall try to comment as I was in Committee on the Bill and know a little about it.
Many aspects of Amendment No. 1 are desirable. It is similar to Amendments Nos. 74 and 76 tabled in Committee. The idea is to reduce the number of miles travelled by waste and therefore reduce the pollution from transport. That would be done by detailed regulations. However, the amendment proposes no penalties for failing to meet the regulations.
The amendment seems almost—I stress almost— like an old-style east European command economy way of tackling the problem, involving top-down state bureaucracy. It is questionable whether that is desirable. Secondly, there are no details of how it would work and how it would be enforced. We do not think that it is practical as proposed. A whole new set of penalties and ways of enforcing them would be needed. Local authorities argue that the ones that the Bill imposes on them as waste disposal authorities are already a great burden.
Thirdly, there is no logic in imposing such a bureaucratic regime on the transport of waste alone. Many other things are transported on the roads. Would such penalties be applied to those materials as well? If the Government want to reduce road transport, they should intervene in the market through taxation, or whatever, to encourage the use of other modes of transport, such as rail.
Amendments Nos. 42 and 62 address the question of a proximity principle. Amendment No. 42 says that waste disposal authorities shall have a duty to apply the proximity principle. Amendment No. 62 says that a waste disposal authority has to take BMW— biodegradable municipal waste—and possibly other waste to the nearest tip if disposing of it inside its own area. It also says that an authority disposing of it outside its area must obtain the agreement of the waste disposal authority in whose area it is being disposed.
Our reasons for not supporting these amendments are, first, that the proximity principle does not appear to be clearly defined in the Bill. Secondly, the amendments refer to BPEO—best practical environmental option—which again does not appear to be defined. Thirdly, instructing a waste disposal authority to use the nearest tip may result in silly operational constraints. For all kinds of reasons, that may not be practicable. In any case, there is no penalty if that is not done and therefore it is not enforceable.
Fourthly, the use of tips outside a waste disposal authority area, which is very common in London and metropolitan councils using tips in surrounding, less
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built-up areas—I note particularly what the noble Lord, Lord Dixon-Smith said in relation to incinerators—is already controlled by planning permission and waste disposal site licences. The proposed new rule would give waste disposal authorities with more tipping space an advantage in the operation of the market in BMW allocations. That could possibly be unfair. It is not a level playing field and could be a means by which such waste disposal authorities were able to increase the market value of surplus allocations they wished to sell to other waste disposal authorities under the Bill.
We have doubts about the amendments. Some of the objectives are highly desirable but quite a bureaucratic administrative series of procedures are placed upon authorities without the possibility of enforcement. We are concerned about that. Certainly, to my knowledge, some large local authorities in England are surrounded by other waste disposal authorities whose operations it is sometimes much more convenient to use because of the distances involved. Although there are provisions within the amendments to tackle those sorts of problems, at the moment we are not wholly convinced that they would work without placing a large burden on waste disposal authorities. That would produce many practical problems.
3.30 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, as the noble Lord, Lord Dixon-Smith said, this group of amendments deals with transportation. Like the noble Lord, Lord Livsey, I have some sympathy with what the amendments attempt to achieve. However, I do not believe that they succeed. In any case, I would argue that this is not the Bill for that purpose.
As noble Lords will know, the Bill is primarily designed to implement the requirements of Article 5(1) and 5(2) of the landfill directive. If we add to it this dimension of waste management, then we might also wish to consider many other areas of waste management. It is important that those issues are resolved by more flexible methods than the requirements contained in the amendments.
In any case the amendments are incomplete and flawed. I do not go as far as the noble Lord, Lord Livsey, and call the noble Lord, Lord Dixon-Smith, a Stalinist, but the amendments are heavy handed in dealing with the flexibility which waste disposal authorities need. If there are restrictions as to which landfill sites authorities can go by definition of the nearest area—not necessarily the nearest landfill—it is not entirely clear how that would be measured. Would it be related to the appropriate roads or as the crow flies? In any case, the decision must be based on the overall environmental benefit not simply on the transport environmental effects.
There is already a cost incentive to restrict transportation. It is not likely therefore that authorities would take a perverse decision in that respect. However, they may need to go to a specific

19
type of landfill site or take a specific route in order to achieve the desirable environmental outcome. We believe that waste disposal authorities should have that flexibility.
The requirement in Amendment No. 62 for a waste disposal authority to use facilities within its geographical area unless it can achieve agreement with either the receiving waste disposal authority or the allocating authority could work in the opposite direction to the first amendment. For example, the nearest suitable landfill site to the source of waste could be outside the waste disposal authority's boundaries. If so, Amendments Nos. 42 and 62 would have directly contradictory effects.
The host authority has means of restricting access to the landfill site in terms of planning permission and subsequent planning permission. Were it to wish to restrict access, then the appropriate way of doing so would be through the planning permission arrangements and not through landfill allowances or the restriction of access to appropriate landfill sites for neighbouring authorities. The right way to manage any waste stream is through best practical environmental options. That will include both going through the waste hierarchy and the assessment of the transportation costs. In that way the proximity principle is covered. Doing that unilaterally on one basis is not appropriate.
Likewise the noble Lord, Lord Dixon-Smith, referred to the additional waste coming in over and above what the authority had planned for. But the maximum amount of waste in a site is dealt with in planning permission. If the waste coming from a neighbouring authority is within that figure, then it is not appropriate that it should be denied simply because it is coming from another authority.
The overall principle involved here is that it must make more economical and environmental sense for the waste disposal authorities to take their own decisions in the light of all environmental dimensions and not simply restrict them rather inflexibly on the transportation issue.
The noble Lord, Lord Dixon-Smith, also referred to Amendment No. 69. That will only arise if Amendment No. 62 is agreed to. As I indicated, I do not accept Amendment No. 62 and therefore, while Amendment No. 69 raises interesting issues, we cannot accept that amendment either. I hope that the noble Lord will not pursue the amendments in this group.
Lord Dixon-Smith: My Lords, I am grateful to the noble Lord, Lord Livsey, and to the Minister for their responses even though they are somewhat negative. We are discussing a Bill largely directed at the subject of biodegradable municipal waste. We are discussing neither general waste nor inert waste. Those are quite specific wastes. It is a growing view that there is no longer any need for any of those wastes to be disposed of outside a waste disposal authority's boundary, wherever that waste disposal authority might be. The technological developments in this field make
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disposable facilities environmentally acceptable and the need to transport such waste is diminishing. Having one specific form of transport that deals simply with waste is an appropriate issue. That is what the Bill is about. If we want other forms of road transport to diminish, that is a matter that can be dealt with somewhere else. We have to begin somewhere.
I hear what the Minister had to say about the complications that my amendments might cause to a waste disposal authority if it were required to use the nearest site, particularly if that site happened to cross a boundary. The amendment refers to the disposal of waste within an authority's own boundaries. I suggest that waste that was not within the authority's boundaries would not be affected. I accept that planning permission is the issue that regulates the size and scope of any disposable facility. The arguments that I used to advance the amendments include an existing case in law and two existing planning appeals. While those matters will unquestionably be taken into account in the future, if we want to encourage good practice we ought to give some legislative assistance. However, the Minister does not appear to wish to do so at this stage. I shall go along with him and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Iraq
3.42 p.m.
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, with your Lordships' permission, I shall repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
"Mr Speaker, can I first tell the House that I have sent messages of condolence to President Bush and Prime Minister Sharon following the break-up of the 'Columbia' space shuttle on Saturday. This was a tragedy not just for the seven astronauts and their families but for their countries and for all who value space exploration. I am sure that the whole House would want to join me in expressing our sadness and sympathy.
"With permission, Mr Speaker, I shall make a Statement on my visit to Washington.
"In addition to Iraq, President Bush and I discussed the Middle East peace process, Afghanistan, global poverty and development. On the first, we agreed on the vital necessity of making progress based on the twin state solution: Israel, confident of its own security; and a Palestinian state that is viable. I am convinced that there is now a real wish across the world to push this process forward and I hope that we can take further steps on this issue soon. I believe that it is of fundamental importance not just to peace in the Middle East but to the peace of the world.
"But the immediate focus of the visit was Iraq. Over the past week, in addition to meeting President Bush, I have seen Prime Minister Aznar, President

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Mbeki, Prime Minister Berlusconi and Prince Saud. Today, I have spoken to President Chirac. After this Statement, I shall be speaking to President Putin and I have also spoken to the Prime Ministers of Turkey, Canada, Greece, Poland, Portugal and Australia. I shall meet President Chirac tomorrow. In addition, my right honourable friend the Foreign Secretary is in regular contact with his opposite numbers from countries on the UN Security Council, in the European Union and in the Middle East, and he will be in New York for UN meetings later this week.
"We are entering the final phase of a 12-year history of the disarmament of Iraq. The duty on Saddam to destroy all his weapons of mass destruction was a central part of the cease-fire agreement at the end of the Gulf War in 1991. In a series of 17 resolutions since then, the UN Security Council has put Saddam under 27 separate and categorical obligations: to give full, final and complete declarations on its weapons programmes; to give inspectors unconditional and unrestricted access; to cease the concealment of Iraq's weapons of mass destruction; and to co-operate fully with the inspectors in the disarmament of all its weapons of mass destruction. He has consistently flouted these obligations, which is why for years there has been a sanctions regime against Iraq, which, because of the way Saddam has applied it, has caused wholly unnecessary suffering to the Iraqi people.
"Last November the United Nations Security Council concluded unanimously that Iraq was still in material breach of UN resolutions. Saddam was given—I quote—'a final opportunity' to comply with his disarmament obligations. Resolution 1441 imposed on Saddam a duty to give,
'a currently accurate, full and complete declaration of all aspects of its programmes to develop chemical, biological and nuclear weapons, ballistic missiles, and other delivery systems';
and to provide,
'immediate, unimpeded, unrestricted and private access',
to all people whom the inspectors wish to interview,
"in the mode or location",
of the inspectors' choice; and also to co-operate actively and fully with all the inspectors' demands.
"Failure by Iraq at any time to comply with and co-operate fully in the implementation of the resolution was said in terms to constitute a 'further material breach. Eight weeks have now passed since Saddam was given his final chance. Six hundred weeks have passed since he was given his first chance.
"The evidence of co-operation withheld is unmistakable. He has still not answered the questions concerning thousands of missing munitions and tonnes of chemical and biological agents unaccounted for. Rocket warheads with chemical weapons capacity have been found by the inspectors. They should have been declared. Classified documents of relevance to Iraq's past nuclear programme have been discovered in a scientist's private house. They should have been
22
handed over. Of the first 11 documents specifically requested by the inspectors, only three have been produced. Not a single interviewee has come to an appointment with the inspectors without official minders.
"As the report which we published at the weekend makes clear, and which I have placed in the Library of the House, there is a huge infrastructure of deception and concealment designed to prevent the inspectors from doing their job. US Secretary of State Colin Powell will report further to the United Nations on this on Wednesday.
"As Dr Blix, the UN Chief Inspector, reported last week:
'Iraq appears not to have come to a genuine acceptance—not even today—of the disarmament which was demanded of it'.
He said that Iraq's declaration seemed to contain no new evidence; that there are indications that Iraq has weaponised the nerve agent VX, one of the most toxic ever developed; that there are strong indications that Iraq produced more anthrax than it has declared; and that the discovery of chemical rocket warheads could be the tip of an iceberg.
"The situation could not therefore be clearer. There is a duty on Saddam to co-operate fully. At present he is not co-operating fully. Failure to do so is a material breach of Resolution 1441. Should Dr Blix continue to report Iraqi non-co-operation, a second resolution should be passed confirming such a material breach. President Bush and I agreed we should seek maximum support for such a resolution, provided, as ever, that seeking such a resolution is a way of resolving the issue, not delaying or avoiding dealing with it at all. I continue to believe that the United Nations is the right way to proceed. There is an integrity in the process set out in 1441 and we should follow it.
"We, of course, discussed the fact that weapons of mass destruction are not the only threat we face and Iraq is not the only country posing a risk in respect of weapons of mass destruction. Over the past few weeks, we have seen powerful evidence of the continuing terrorist threat: the suspected ricin plot in London and Manchester; Al'Qaeda experiments in Afghanistan to develop chemical, biological and radiological weapons; the arrests of those linked to Al'Qaeda in Spain and France; and further arrests in Italy.
"What is more, many of these arrests show the terrorist groups actively seeking to use chemical or biological means to cause as much death and injury and suffering as they can. We know from 11th September that these terrorists have no demands that could ever be negotiated upon, no constraint in terms of finance and numbers to carry out terrorist acts and no compunction in taking human life.
"At the same time, we know, too, that Iraq is not alone in developing weapons of mass destruction; that there are unstable, fiercely repressive states either proliferating or trying to acquire weapons of mass destruction, like North Korea.

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"I repeat my warning: unless we take a decisive stand now as an international community, it is only a matter of time before these threats come together. That means pursuing international terrorism across the world in all its forms. It means confronting nations defying the world over WMD.
"That is why a signal of weakness over Iraq is not only wrong in its own terms. Show weakness now and no one will ever believe us when we try to show strength in the future. All our history—especially British history—points to this lesson. No one wants conflict. Even now, war could be avoided if Saddam did what he is supposed to do. But if, having made a demand backed up by a threat of force, we fail to enforce that demand, the result will not be peace or security. It will simply be returning to confront the issue again at a later time with the world less stable, the will of the international community less certain, and those repressive states or terrorist groups who would destroy our way of life, emboldened and undeterred.
"Even now, I hope that conflict with Iraq can be avoided. Even now, I hope Saddam can come to his senses, co-operate fully and disarm peacefully, as the UN has demanded. But if he does not, if he rejects the peaceful route, then he must be disarmed by force. If we have to go down this route, we shall do all we can to minimise the risks to the people of Iraq, and we give an absolute undertaking to protect Iraq's territorial integrity. Our quarrel has never been with the Iraqi people but with Saddam.
"But Saddam's weapons of mass destruction and the threats they pose to the world must be confronted. In doing so, this country, and our armed forces, will be helping the long-term peace and security of Britain and the world".
My Lords, that concludes the Statement.
3.51 p.m.
Lord Strathclyde: My Lords, I am grateful to the noble and learned Lord for repeating the Statement made by the Prime Minister in another place. I also join him in offering condolences to the families of the crew of "Columbia" who lost their lives this weekend in so tragic a manner. The actions of those on board have been called by many a selfless sacrifice for scientific progress. Sadness over the tragedy temporarily drew the focus away from our worries over the impending crisis in Iraq. It is to that increasing threat of war that I now return.
We on this side of the House encouraged the pursuit of a second resolution from the United Nations. A second resolution is not necessary, but it is highly desirable. It would give Saddam Hussein a firm opportunity to consider the advantages inherent in cooperation and disarmament. However, it should not be used as an excuse for delay. We should not deceive ourselves that time will be the solution. Saddam Hussein's track record has not shown us that he is a man to be swayed by rational argument; rather one
24
who relies on internal oppression, violence and the development of weapons of mass destruction to drive across his own opinions.
For too long, Saddam Hussein's unchecked situation has been an inspiration for "rogue states" and terrorist groups. Any failure to call him to account will provide the influence they crave to sustain their destructive activities; a beacon to those who look upon deadly weapons as the only alternative.
I understand that Hans Blix's main concern is that Iraq is not actively co-operating with the weapons inspectors and that for months his team has been searching as though for a needle in a haystack, when surely it was for Iraq from the very start to account for discrepancies in its weapons declaration and assist fully in the task. It is increasingly obvious that that never was and never will be Saddam Hussein's intention.
When the Prime Minister was briefed by President Bush this weekend on Secretary Colin Powell's evidence on Iraq to the Security Council, was he told precisely what the content of those documents would be? No doubt they will expose the dangers that Saddam Hussein poses to the United States, but does the noble and learned Lord agree that it is not only the dangers to the United States that need to be spelt out, but all those specific to the United Kingdom? We are entitled to as much information as is available and relevant, and that is vital when a substantial number of British troops have already been deployed to the Gulf and we hear that more are to follow later this week.
Is a new UK dossier being prepared? If so, when will it be published? How does that fit in with the report which the Statement said had been placed in the Library today? Can the noble and learned Lord confirm that the report is also in the Library of this House? I have not had sight of it. However, what is the difference between it and the dossier published some months ago?
Perhaps the noble and learned Lord will also agree that we need to encourage a debate in this House on the unfolding situation with respect to Iraq. Perhaps he will indicate when he thinks the best time for that would be. It is in any case all part of making the case against Saddam Hussein to the British people.
Does the noble and learned Lord agree that the Prime Minister's consistent support of the UN route shows an inherent belief that this is not just an American war but a united stand against the forces of terrorism? The fact that the United Kingdom is now one of seven European countries that have written in support of Resolution 1441 is without doubt an important step forward. Is it right that the Germans and the French were not in fact asked to sign that document? When the Prime Minister meets President Chirac tomorrow, will France's required support for a second resolution be at the top of their agenda? Will the Prime Minister make it clear to the President that blocking defensive forces to Turkey under the auspices of NATO would be unacceptable?

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Does the noble and learned Lord agree that the only thing that can now stop military action is disarmament by Saddam Hussein? He has been given a second chance once too often and it is now time for him to suffer the consequences of his repeated failure to disarm. Our threats toward his regime have been voiced too long and too loudly now to be allowed to appear empty. No one wishes to go to war, but the dangers of stopping now may be greater than going ahead.
3.57 p.m.
Lord Wallace of Saltaire: My Lords, I should like to apologise on behalf of the noble Baroness, Lady Williams of Crosby, who cannot be here today. I am taking the Statement in her stead. We on these Benches associate ourselves also with the sympathy for the astronauts who very sadly lost their lives at the weekend.
We on these Benches support the efforts that the Prime Minister has been making to ensure that the containment of Iraq continues to be managed multilaterally by the United Nations and that, as far as possible, Iraq should be disarmed through inspection and multilateral action. We note the very careful balancing act in which the Prime Minister has had to balance the unilateral language which is unfortunately the way in which the Bush administration present their case and the much more multilateral language which we hear from our own Prime Minister and a number of others. Will the Leader of the House just confirm that President Bush has now agreed that there will be a second UN resolution and that the inspectors will be given the further time that they need, although we are not yet sure how long that will be? Can be also reassure us that the Government and the United States have now provided as much intelligence and advance equipment as they possibly can to ensure that the inspectors know as much as they can about what they may be looking for?
How does the Prime Minister intend to manage the balance between a critical co-operation with the United States and ensuring as far as possible that European governments manage to stay together? It has been said very many times that British influence in Washington depends in the long run on Britain being seen to speak for Europe. Over the past few days, Europe has spoken with a number of different voices. Those of us who deplored the unilateralism of which the German Government spoke some months ago were not entirely happy that Mr Aznar, with our own Prime Minister, repeated that mistake by explicitly dividing the European Union again. We very much hope that the summit at Le Touquet will manage to achieve a rather greater commonality of view between the French and the British Governments.
Can the noble and learned Lord say a little more about the phrase at the beginning of his speech, in which he said that we hoped to have parallel progress again with the Arab-Israeli conflict? On the first page we are told that:
"I hope we can take further steps",
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on the Israel-Palestine conflict. Again, we are told that that will take place "soon". It is difficult to see what those further steps will be or, indeed, how soon they will be taken. It is important that the matter is not left until after whatever military action there may have to be in Iraq.
What worries us most on these Benches is the extent to which the questions of rogue states, weapons of mass destruction and terrorism are conflated, as they are again in this Statement. Terrorism is a real, long-term problem, and it will not be resolved by military intervention in Iraq or by disarming Iraq. What worries many of us about what we hear from Washington at the moment is what we perceive as a lack of understanding about the long-term nature of the terrorist problem in the Muslim world. We need to be sure that we are standing up for universal values and not simply Western values, let alone American values. As we know from our own experience, "pursuing terrorism across the world- is only part of how one copes with the long-term terrorist threat. An upsurge of terrorism after an invasion of Iraq is a possibility for us. Therefore, how we manage our relations with the Muslim world as a whole and how we present the rationale for intervention in Iraq is clearly of great importance.
Was there a discussion between the Prime Minister and the President about how Iraq is to be handled after any military intervention, given that the odds on such an intervention occurring are now very high? I was told by a group of Americans whom I met yesterday that they are confident that the British will take a leading role in rebuilding Iraq after the invasion because we are so good at nation-building. That may have serious implications for public expenditure in this country. It would be useful to know something about how far Britain has committed itself to rebuilding Iraq after any intervention.
4.2 p.m.
Lord Williams of Mostyn: My Lords, I am grateful to the noble Lords, Lord Strathclyde and Lord Wallace, not least because of the unity of purpose that they described. It is necessary at this time that our enemies recognise that this is a united kingdom. I agree with the noble Lord, Lord Strathclyde, that there is no difference in approach between us. It is highly desirable to have the second resolution. Both noble Lords asked about that and I can answer their questions best by returning to my Statement. For the assistance of your Lordships, I repeat:
"Should Dr Blix continue to report Iraqi non-co-operation, a second resolution should be passed confirming such a material breach".
In response to the specific question of the noble Lord, Lord Wallace, I said:
"President Bush and I agreed we should seek maximum support for such a resolution".
That is pretty unambiguous. The tributes paid to the Prime Minister and Jack Straw were generous but well-deserved. The efforts that they have made and the satisfactory consequences that have resulted are not fully understood. In fact, the Prime Minister and the

27
Foreign Secretary have followed a policy that is in the interests not only of the United Kingdom but of the wider international community, including the United Nations. Without being unduly divisive or contentious, I hope that I can say that they have done so much more effectively than some of our colleagues in Europe.
So far as concerns the evidence on Iraq, there is a dossier in the Library, available to all. I am told—I should not say this—that the noble Lord, Lord Roper, has just been down to get a copy. I do not think that I can usefully encapsulate the difference between that new document and the earlier dossier—it is better to let your Lordships read and compare them. However, there is more material in the updated document because time has passed since the publication of the original. I agree that, as the noble Lord, Lord Strathclyde, said, this is not simply the United Kingdom's business.
The noble Lord asked a question about debates. The noble Baroness, Lady Williams, wrote to me. I received her letter this morning and have replied today. I am sure that she will not mind if I share with the House what I said in my letter to her. I wrote:
"We recalled the House on 24 September last year for a Statement and debate on Iraq. We made a further Statement on 7 November. We had the foreign affairs day in the Debate on The Queen's Speech on 14 November, and a further full day's debate on 28 November. We made further statements on 18 December, and on 7, 20 and 21 January … The situation is moving very fast … The Government is committed to keeping both Houses informed and we will keep the situation under constant review, and will arrange time for debate at an appropriate moment".
It is probably better that both Houses have a debate on the same day. Jack Straw has been absolutely scrupulous in keeping the House of Commons informed—returning from the United States to keep them fully briefed and then going back there again. Therefore, I do not believe that anyone could say that he has not taken Parliament's interests into account.
I think that it is true that the Germans and the French were not invited to sign. Perhaps telephone communications between Berlin, London and Paris were not marvelous—I am not quite sure. However, we should consider those who did sign. The fact that they did so is an indication of the powerful success that the Prime Minister and the Foreign Secretary have been enjoying. I do not know what the Prime Minister will say to M Chirac tomorrow, and it would be better if I did not speculate.
The final point made by the noble Lord, Lord Strathclyde, is right. There is no way out of this impasse unless Saddam Hussein disarms, as he is required to do by the obligations laid upon him in international law and by the United Nations. Disarmament will have to come about one way or another. No one wants war, and no one wants terrorism and unrestrained activity of the sort with which we are now becoming familiar.
I dealt with the point raised by the noble Lord, Lord Wallace, about President Bush. We are sharing intelligence with the inspectors as appropriate. The
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noble Lord asked what is to happen with regard to the Middle East peace process—a question that I know to be of interest to many of your Lordships. At the moment, the Israeli elections have only just been concluded; no government have been formed in the state of Israel and circumstances are shifting and changing. I repeat that the Prime Minister is absolutely determined to push the process forward and hopes that we shall be able to take further steps on the issue soon. The United States is an extremely important player in that scenario. That is not to say that we should blindly follow the United States, but we need to recognise today's realpolitik.
The noble Lord is right—we cannot simply attempt to bomb terrorism out of existence, whether by bombing a state, a camp or a training organisation. We must use diplomatic, political and financial methods, which are very important. We must also use military and police methods. As the noble Lord rightly said, we must examine the causes of terrorism, which seems to be becoming almost nihilistic and anarchistic in the sense that some terrorism was in the latter part of the 19th century.
I hope that I have dealt with the questions that were put. This is a House, not a government, matter and I shall keep carefully in mind the necessity of having a debate when it is appropriate to do so. I hope that your Lordships think that when requests have been made to me in the past I have done my best to meet reasonable requirements.
4.8 p.m.
Lord Elton: My Lords, I apologise for coming in late during the Statement, but I have read it and heard the responses. As one who regards war as a very untidy resort, and the necessity of making it the last resort, I would like to know whether the Leader of the House can add to the force of the argument in favour of war by being more open about what I regard as the crucial question of the missing munitions. It is stated that thousands of tonnes of munitions and chemical and biological agents are unaccounted for, but we have never been told at what point their existence was identified and at what point they disappeared. I believe that if people were better aware of the extent of the threat posed by Iraqi intransigence they might be better prepared to take offensive action against it.
Lord Williams of Mostyn: My Lords, the best answer I can offer the noble Lord, Lord Elton, is to commend to him the report of Dr Blix, which is very careful, understated and reasoned. One finds a good deal of material there about what has been the failure. Fundamentally, United Nations Resolution 1441, which, I repeat to noble Lords, was the "final chance"—I stress that I am quoting and that this is not politicians' gloss—required not, as Dr Blix rather attractively said, simply acquiescence in process but positive proactive co-operation. That is what he has not had. There has been no agreement, for instance, that U2 flights can overfly Iraq; that would be enormous benefit to the inspectors. There has been no agreement for a time about helicopter visits and there

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has been no acquiescence—to put it at its most neutral—in unfettered interviews with those who may have information. Dr Blix has laid out a catalogue— rather a gloomy and dismal one—which is all the more devastating, in my view, because its language is understated and quite restrained.
Lord Glentoran: My Lords, would the noble and learned Lord be good enough to answer more fully the last question of the noble Lord, Lord Wallace of Saltaire? It concerned what happens after the war, where our responsibilities will lie, and whether there are any commitments in terms of the United Kingdom's role in this regard.
Lord Williams of Mostyn: My Lords, the noble Lord is quite right; I do not believe that I did the question sufficient justice. The Prime Minister and President George W. Bush discussed questions about the situation after the conflict. This is plainly an issue of real importance. Discussions are continuing. We find an element of an answer in the Statement in which we give a guarantee of territorial integrity. Noble Lords will not be surprised to learn that DfID has contingency plans and that a vast humanitarian effort will be required. I cannot say that the plans are entirely concluded; if they were, noble Lords would be surprised and rather disappointed, because this situation is developing constantly. I take the point implicitly made by the noble Lord, Lord Glentoran: there is no purpose in limiting our horizons to any immediate attack if that becomes an unfortunate necessity. After the attack will be our historic responsibility.
Lord Stoddart of Swindon: My Lords, is the noble and learned Lord aware that I and certainly some others regard war as the very last resort? Some of us are puzzled about why diplomatic efforts are not made by the United Nations, the United States and the United Kingdom to try to prevent war not simply through the inspectors but by diplomatic means; we should like to have an answer. Will the noble and learned Lord also comment on the statement made by the Secretary of State for Defence on yesterday's Parliament programme, I believe, that Britain would be preparing to use nuclear weapons? The noble Lord, Lord Strathclyde, shakes his head but that is what Mr Hoon said; I listened to his words and saw the programme. Bearing in mind that the inspectors have said that there is no trace of Iraq having any weapons, under what circumstances would such weapons be used?
Lord Williams of Mostyn: My Lords, there are two aspects to the questions of my noble friend. First, is war the last resort? Plainly, yes. Secondly, have diplomatic efforts been used? Plainly, yes—since 1991. Saddam Hussein has been in breach of his international legal obligations since 1991. He took on those obligations as a necessary precondition to the end of the Gulf War. I stress that that was 12 years ago. If my noble friend says that we should have done more by diplomacy, I gently remind him that the Prime Minister was bitterly criticised for having the courage
30
to go to Syria and subject himself to vigorous cross-questioning on television. Syria signed up to Resolution 1441. If that is not a triumph for diplomacy, I am not sure how I should otherwise recognise one.
The Secretary of State for Defence said that in the most extreme circumstances—which he is not contemplating—and consistent with international law, we are entitled to use such means as are available to defend the security of this country. After all, a paramount duty of any government is to secure the safety of its citizens. What the Secretary of State said— it bears reading with care—is no more than a statement of international law and the rights that that gives to sovereign states.
Lord Sandberg: My Lords, I am glad that the Prime Minister did not forget to mention in the Statement— if in passing—the problem of North Korea. That problem scares me much more than anything else. I believe that the noble and learned Lord will agree with me that President Bush cannot be a policeman to the world. Next time the Prime Minister talks to the President, will he suggest that the real country to deal with North Korea is China, which is next door to North Korea and close in relationship, as we all remember from the Korean war? We should be trying to widen the number of nations that come with us in seeking to prevent future terrorism.
Lord Williams of Mostyn: My Lords, I entirely agree with the noble Lord. The situation in North Korea is significantly worrying. This matter does not involve simply the references in the Statement; noble Lords will be aware of the Prime Minister's Statement in the Commons last week, which did not meet with universal approval from those who did not pay any attention to what he was saying. The noble Lord is right to say that the situation in North Korea is deeply worrying. We cannot avoid dealing with Iraq because of other dangers. The noble Lord is right to say that the United States cannot be the policeman for the world. That is why the whole cast of British foreign policy since 1997 has been to follow the United Nations route—successfully, so far. Again, the noble Lord rightly says that we have to engage other large countries in what used to be called their spheres of influence. China is one—in the North Korean context, I entirely agree.
On general multilateralism, I shall not repeat the list of statesmen and heads of government whom the Prime Minister consulted within the past few days before going to see President Bush. He will be continuing those efforts when he sees M Chirac tomorrow.
Lord Howell of Guildford: My Lords, I have two rather small questions about the way in which this House copes with the unfolding crisis. First, some of us have been asking for many weeks now for an additional dossier to improve on the original dossier, which we considered not very effective in making the case about why Iraq is involved in global terrorism and

31
is such a direct danger to this country. We were repeatedly told that such a document was not necessary or planned. However, we then read in the Sunday newspapers that it would indeed be issued, and we learn in the Statement today that there is such a dossier or report and that it has been placed in the Library. Is it not reasonable that those who were preparing to respond to the Statement, including my noble friend Lord Strathclyde and others, might have expected to receive notification of the publication of a document for which we have been asking for many weeks? I am sorry if that sounds rather like a grumble—but it is a grumble.
Secondly, I believe that the noble and learned Lord said that it would be best if, when we have a debate in this House, it should be on the same day as the debate in another place. Will he reconsider that? This House has an enormously powerful input to make to the broader scene, to defence issues and to geographical and geopolitical issues, which may not get a proper airing in the Commons. If we have our debate on the same day as the Commons, it will be lost completely in the media; if we have it on another day, we could make a genuine contribution that matches what this House can give to such debates.
Lord Williams of Mostyn: My Lords, neither of the noble Lord's points is a grumble. I was simply reciting what I had said in the letter to the noble Baroness, Lady Williams, as it would have been impolite not to have done so. I pointed out that it is normal to coordinate closely the involvement of the two Houses. Normally we would not promote a debate in the Lords unless we proposed to do the same in the Commons. I shall bear in mind what the noble Lord said. Many neutral observers—not those sitting on the red Benches—felt that the quality of our full debate on Iraq was very high indeed. I make no further comparison.
It is fair to say that the dossier is of a different quality from the first one. It is headed:
"Iraq—its infrastructure of concealment, deception and intimidation".
It is in three parts: the first concerns how Iraq's security organisations operate to conceal weapons of mass destruction; part two gives up-to-date details of Iraq's network of intelligence and security organisations; and part three shows the effects of the security apparatus on the ordinary people of Iraq. So it is somewhat different in nature.
On whether it would have been helpful for your Lordships, including the noble Lord, Lord Strathclyde, to have had prior notification, that is a reasonable point. I had the same notification as the noble Lord, Lord Strathclyde.
Lord Chalfont: My Lords, does the noble and learned Lord agree that it is now important that the Prime Minister should continue upon the courageous and clear-sighted course that he has taken up to now in trying, as best he can, to ensure that the problem is solved through the United Nations, while making it
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clear that, if it cannot be solved in that way, force may have to be used? I hope that the Prime Minister will not be seduced by the voices of those who cannot accept that in any circumstances military force should be used as an instrument of foreign policy.
Two matters that have been raised in the course of this debate concern me. One is that we should consider not only American interests, but also British interests. Surely we should consider interests far wider than those. The wider world shares the values and beliefs that we in this country hold to. The second point concerns the statement that in this conflict we must ensure that we uphold not just western values. Surely it is precisely western values, as we understand them, that are under threat from international terrorism and it is those values that we are trying to uphold.
Lord Williams of Mostyn: My Lords, the first observation of the noble Lord will be extremely well received by the Prime Minister. It is gratifying to have support from such a quarter. I refer back to what I read out on behalf of the Prime Minister, which I believe will satisfy or reassure the noble Lord:
"President Bush and I agreed we should seek maximum support for such a resolution"—
there is then the critical proviso—
"provided, as ever, that seeking such a resolution is a way of resolving the issue not delaying or avoiding dealing with it at all".
I do not believe that it was said that foreign policy should take into account simply United Kingdom and United States interests. Indeed the noble Lord, Lord Wallace of Saltaire, made precisely the contrary point. He said that this is a situation of such gravity that it affects the whole of the world and that it must be viewed in an international context.
The noble Lord, Lord Wallace, also said that we must not narrowly consider ourselves to be superior in every respect. On this occasion my mind chimes with his and not with the noble Lord, Lord Chalfont. Humanitarian values are not contained within the sole repository of western nations.
Lord Carlile of Berriew: My Lords, does the Minister agree that there is a loose linkage between the Iraqi issue and the Israeli/Palestinian issue and that it would be desirable to emerge from this period of modern history with a resolution to both problems? Will the noble and learned Lord assure the House that both the British Government and the American Government will use the present uncertain phase in Israeli politics to try to ensure that the Israeli Government adopt a conciliatory attitude towards the outcome, rather than an intransigent attitude towards what occurs in future?
Lord Williams of Mostyn: My Lords, the United Kingdom Government's intention is to use their best endeavours to that purpose. The United States, for obvious historic cultural and traditional reasons, has a close connection with the state of Israel. Israel has many supporters there as it does here. I refer back to what the Prime Minister said at the Labour Party conference, that we must arrive at final status

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negotiations on the basis of the 1967 boundaries. I hope that it is not without significance to your Lordships that the reference to which the noble Lord pointed is at the beginning of the Statement. It was not there by chance.
Lord Dahrendorf: My Lords, as one who supports the Government's policy on Iraq and notably the line that the Prime Minister has taken throughout, it seems to me of crucial importance that a clear and persuasive case is made now that stands up to public scrutiny. In that connection my noble friend Lord Wallace of Saltaire has asked one question about which an additional word may be said: that is the connection between Iraq and terrorism. As I understand it, the issue of Iraq is one of weapons of mass destruction and, although there may be a linkage to terrorism, the two matters are not the same He spoke of conflating them. Would the noble and learned Lord care to add a word on that important point?
Lord Williams of Mostyn: My Lords, the two are not identical but they may have similar components. The real case for the use of armed force against Iraq depends entirely on international law and significantly, but not entirely, on Resolution 1441 and, if there is to be a second resolution, on that. The Prime Minister and the Foreign Secretary have endlessly repeated—I too have repeated to your Lordships on many occasions—that the United Kingdom's policy is to act consistent with the rules of international law.
Therefore, essentially Iraq is liable to armed force sanctions if that is the ultimate necessity because of its disobedience to the mandatory instructions of the United Nations. I am not in a position to speculate exactly what Secretary of State Colin Powell will say on Wednesday. Perhaps we should wait to hear what he has to say. I take the point made by the noble Lord that the two should not be conflated, even when they are coincident in part. A1'Qaeda is not a state; Iraq is. A1'Qaeda operates in various states, but I agree that the state of Afghanistan does not need to be pursued and punished endlessly because A1'Qaeda operates there. If A1'Qaeda ceases to operate there, different circumstances will arise. The truth is that we are in a period of uncertainty that can be met only by resolution and unity, which I am glad your Lordships have shown.

Waste and Emissions Trading Bill [H.L.]
4.28 p.m.
Consideration of amendments on Report resumed.
Clause 1 [Target Years]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 2:
Page 1, line 19, at end insert—
"( ) The total of the amounts specified under subsection (1)(b) to (e) for a year must not exceed the amount allowed for any previous year."
The noble Lord said: My Lords, Amendment No. 2 is grouped with Amendments Nos. 4 and 6. The wording of all three is identical. When we debated this
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part of the Bill in Grand Committee there was general agreement that there was unlikely to be smooth progress in statistical terms towards the targets that would be reached and that waste disposal would probably shift in steps rather than in a smooth progression. Perhaps I can deal with the debate on this amendment and on a number of subsequent groups of amendments, but only briefly.
What is likely to happen is that because of the need to change the way in which waste is disposed of and the need for capital investment and so forth, there will be delay before things really begin to change and its pace will accelerate.
As regards the European directive, which governs these matters, there are two critical dates which we have to consider. They are absolute and there is nothing that can be done about them. Further on in the Bill, there is a clause which we shall seek to have excised. It contains a terrifying formula until plotted out on a graph when we find that it runs in a straight line. The formula then becomes comprehensible. The straight line gives rise to problems because initially people will be unable to meet it, but subsequently they may get ahead of the straight line.
We believe that it would be much easier if the Bill, as we suggest here, said:
"The total of the amounts specified under subsection (1)(b) to (e) for a year must not exceed the amount allowed for any previous year".
That becomes even more significant when we reach the question of a penalty regime. The Minister is bringing forward amendments which will enable the Government to pass on their penalty for failure to the authorities which caused the failure to arise in the first place. There are clauses within the Bill which give the Minister power to decide whether penalties should become payable or not, how they should become payable, or whether they could be deferred.
The Government are becoming policeman, judge, jury and everything else in the same cause. I shall probably have to say that two or three times during the course of today. This is the beginning of the process. These are straightforward amendments. In the light of the developments over penalties, we need to think very seriously about how the Bill is going to work. That is the reason for the amendments. I beg to move.
4.30 p.m.
Lord Livsey of Talgarth: My Lords, these are new amendments which seek to stop a waste disposal authority increasing the amount of biodegradable municipal waste sent to landfill sites from one year to the next. I believe that the amendments are rightly put forward as probing amendments. It will be interesting to hear the Minister's response. On the face of it, an increase in the amount of biodegradable municipal waste sent to landfill sites should not happen The proposal reduces the flexibility given to the waste disposal authority to use the provisions to carry

35
allowances forward or backwards between years or to trade with other waste disposal authorities. That could inflict on councils less flexibility.
Lord Whitty: My Lords, when I first read the amendment I was slightly puzzled as to its intentions. I believe that I now understand what the noble Lord is driving at. As regards changing the situation, the amendment makes the scheme less flexible rather than more. The Bill already meets the noble Lord's objectives.
The default position between years is defined by the formula, and we come to that at a later stage. Were there unusual circumstances in which we had to agree a different rate of progress, then it would be open to the Secretary of State to vary the figures. The basic principle is that the Secretary of State will specify at the beginning of the process for each year what is required to reach the target. There is the possibility of altering it in view of changed circumstances. The figures are available for the local authority to achieve through each year of the process. The noble Lord suggests that the purpose is not clear. It is a view partly based, I believe, on a misconception that amounts would be set at various stages during the process. That is not the intention.
Amendment No. 4 raises a slightly different issue. I have some sympathy for what it tries to achieve. Obviously, it would be extremely unusual for any of the countries of the United Kingdom to be allowed to send more biodegradable municipal waste to landfill sites in a scheme year than in an earlier one. As I said, I anticipate that the regulations will specify from the outset the amount that can be sent in any specific year. However, the amendment would require that the amount of biodegradable municipal waste allowed to be sent to landfill sites would be less in each successive year under all circumstances.
We shall come to the provision and alteration of targets later. That gives us some flexibility; this amendment would override it. It would not allow sufficient flexibility to deal with unforeseen circumstances, for example, an outbreak of BSE or foot and mouth disease. Such an outbreak would require us to suspend some of the targets concerning landfill. That is why flexibility is in the Bill.
Amendment No. 6 contains an unnecessary precaution. The default formula is designed to ensure that the maximum amounts calculated using the formula represent the rate of progress needed to meet the landfill directive target. If we stick to that process there would be equal annual steps. I understand the position which the noble Lord takes, but the full effect of the amendments would be to introduce less flexibility and not more.
Lord Dixon-Smith: My Lords, once again, I am grateful to the noble Lord, Lord Livsey, for his participation and to the Minister for his response. He has replied very specifically as regards the amendments without considering the totality of the package I tried to portray and which we shall face
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when we have completed debate on the Bill. The Minister, or his civil servants, are going to face a very complex and invidious task as time progresses in consideration of the Bill. The complexity of their task will be caused because of the way in which the Bill is constructed at present. I shall study the Minister's reply, as I shall his subsequent remarks, when considering what further action I may need to take. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendment No. 3:
Page 2, line 7, leave out subsection (5).
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 5 and 70. The second report of the Select Committee on Delegated Powers and Regulatory Reform accepted the reasoning put forward by the department as to why it is necessary for the Bill to leave so much to delegated legislation. However, it considered that there must be an opportunity for debate on the way in which the wide powers conferred by the Bill will be used and therefore that the first regulations applying to England and made under Clause 6, which refers to borrowing and banking of landfill allowances, Clause 7, which relates to trading and other transfer of landfill allowances, and Clause 10, dealing with scheme regulations, should be subject to the affirmative procedure.
The proposed amendments to Clause 26 would give effect to this recommendation and also make similar provisions for Scotland and Northern Ireland. Where regulations are made under a mixture of powers— some subject to the affirmative procedure and some subject to the negative procedure—the regulations would be need to be subject to the affirmative procedure. In case the noble Lord, Lord Livsey, is about to ask, it is not necessary to set out affirmative procedures for Wales in the Bill as they are set out in the Government of Wales Act 1998.
I understand that the noble Lord, Lord Livsey, wishes to speak to his Amendment No. 71 to our Amendment No. 70. I shall listen to what he says and reply at the end of the debate. I beg to move.
Lord Livsey of Talgarth: My Lords, I thank the Minister for referring to Amendment No. 71. With the leave of the House, I hope it will be possible to discuss it in due course; it is an important probing amendment to see whether government Amendment No. 70 contains a number of loopholes. This is an important group of amendments. I accept what the Minister said about the Government's response to the first and second reports of the Select Committee on Delegated Powers and Regulatory Reform.
The first report expressed general concern at the extent of delegated legislation in the Bill. The Government responded that that was due to the need to delegate much of the operational material to Scotland, Wales and Northern Ireland and so the English powers also had to be made by statutory instruments.

37
The second report suggested a way forward: to make the first regulations in England subject to the affirmative procedure so that they were subject to at least a degree of scrutiny before coming into force. We agree with that suggestion. Amendment No. 70 makes all those provisions but in a slightly roundabout way. Amendments Nos. 3 and 5 remove some provisions for affirmative procedures which are then replaced under Amendment No. 70.
Our probing Amendment No. 71 is slightly technical. Government Amendment No. 70 refers to the first regulations to be made under Clauses 6, 7 and 10. However, it is likely that several different sets of regulations will have to be made under at least some of those clauses. Clause 6(3) at the bottom of page 4 has 10 paragraphs, (a) to (j), each of which may require separate regulations. If one reads that, one can see what I am driving at. There are similar long lists under Clause 7(3), which has 12 paragraphs—(a) to (1)—and Clause 10(2), which has seven more. Amendment No. 71 therefore refers to no fewer than 29 different matters.
The first regulations under Clause 6 could and probably will refer only to one or to a small number of these matters. That would leave all the other matters under Clause 6 to be dealt with by subsequent regulations. Government Amendment No. 70 might allow these subsequent regulations to be made by the negative procedure. That would clearly go against the Select Committee's wishes. This is the basic issue to be probed. I am sure that the Minister will want to address these points. We may return to the matter at Third Reading if it is not resolved to our satisfaction.
4.45 p.m.
Lord Dixon-Smith: My Lords, the noble Lord, Lord Livsey, has raised an important point about Amendment No. 70. Like him, we are interested to see whether it fully covers the situation raised by the Delegated Powers and Regulatory Reform Select Committee. I confess that we have not yet had time to study its implications throughout the Bill, but I shall be interested to hear the Minister's response because it is a worrying matter. This is a skeleton Bill and the regulatory powers are therefore considerable.
It would be true to say that the Bill cannot be implemented because all the executive clauses in the Bill require and depend on regulation. It is therefore important that, if possible, we should meet the requirements of the Select Committee because it gives us good advice and by precedent—although precedents are dangerous because one can always create subsequent ones—we try to comply with its recommendations.
Lord Whitty: My Lords, as both noble Lords indicated, we have complied with the Delegated Powers and Regulatory Reform Committee's recommendations by tabling what the noble Lord, Lord Livsey, rightly identified as the main Motion— Amendment No. 70. Amendment No. 71 would
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require all subsequent changes to the initial regulations, however minor, to be subject to the negative procedure.
Behind the amendment is an anxiety that the initial regulations would not necessarily be substantive. If we look at the areas covered by the clauses to which Amendment No. 70 applies, those regulations would have to be in place at the beginning to operate the trading scheme and the borrowing and banking of landfill allowances and so forth under Clauses 6, 7 and 10.
Although the noble Lord, Lord Livsey, is correct to say that there are a number of paragraphs under the clauses, they would all need to be regulated at the beginning of the scheme. Therefore, the first regulations would need to be comprehensive and substantive. Changes thereafter would be of a relatively minor and technical nature and would normally be dealt with by the negative procedure.
I hope that the noble Lord is reassured that, in complying with the Select Committee's recommendations, we are meeting the substantive point that the issues involved should be subject in principle to the affirmative procedure. Subsequent regulations could be dealt with by the normal negative procedure. I hope that that explanation is sufficient to convince the noble Lord not to press Amendment No. 71.
On Question, amendment agreed to.
Clause 2 [Non-target years]:
[Amendment No. 4 not moved.]
Lord Whitty Lord Whitty moved Amendment No. 5:
Page 2, line 24, leave out subsection (5).
On Question, amendment agreed to.
Clause 3 [Non-target years: default rules]:
[Amendment No. 6 not moved.]
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 7:
Page 3, line 22, after "2004" insert ", for which the figures gathered in the financial year ending 5th April 2004 shall stand,"
The noble Lord said: My Lords, when we discussed this part of the Bill in Grand Committee, there was general agreement that there was a potential problem. The key date from the point of view of the European directive is the July date on which the directive came into force, which is set out in the Bill. It has no other validity or relationship to anything else.
When we discussed how to record a waste disposal year, there was general agreement that local authorities in this country operate to a financial year from the beginning of April to the end of March. That is how we run our national accounts and everything else. All recording systems are based on that.
The purpose of the amendments is to put formally on the face of the Bill the fact that, preceding that date in July, the waste disposal year ended on 5th April along with local government and national practice. Therefore, we will not have to devise a new accounting year specifically to meet the European directive that

39
consists of a period a little short of nine months from one financial year and three months and 17 days of another. That would be administrative nonsense, which we should be able to avoid.
In Grand Committee, the Government accepted that principle and said that we should be able to find a way around the issue. Therefore, I have tabled the amendment in the hope that it might be the solution. However, I am ever the pessimist and I shall not be disappointed, but I may be surprised.
For waste disposal authorities across the country this is a small but important point. It would be most welcome if the Government could accept this or indicate how they intend to meet the problem. I beg to move.
Lord Livsey of Talgarth: My Lords, we support these amendments, for the reasons given by the noble Lord, Lord Dixon-Smith.
Lord Hanningfield: My Lords, as a practising leader of a local authority perhaps I may add to those remarks. We normally work from April to April or sometimes from January to January. To bring in a July date for a fairly complicated piece of paperwork and record keeping would only add to the costs, about which I want to speak later. I hope that the Government will think again about the matter and will bring the date in line with others used by local authorities.
Baroness Farrington of Ribbleton: My Lords, we discussed these issues in Grand Committee. The amendments seek to change the definition of a scheme year to run in line with the financial year. As was made plain in Committee, we understand the intentions behind the amendments.
We have given the matter considerable further thought. We have concluded that there are legal and practical reasons why the scheme years should not be amended as proposed.
The definition of a scheme year comes from the Landfill Directive. The directive requires reductions by the specified percentages by not later than 16th July in the specified years. So there is a target date. That could create a problem—I say this in passing—for local authorities because reducing the period would make it harder for them to meet the specified date.
The other matter to which noble Lords should have regard is that there is a system of quarterly reporting. The process of quarterly reporting will take to the end of June. So there would be a period when the information had to be available anyway. That would provide consistent obligations and data across member states and would accord with other requirements that appear to fall due on 16th July—as I have said, the quarterly reporting entitlement.
We were aware of the strength of feeling and of the concerns raised by noble Lord. We do not believe that their fears are justified. However, we have written to
40
the Commission to seek clarification as to whether any alteration would be in line with its policy on this particular directive. We hope to hear from it on that.
Lord Dixon-Smith: My Lords, I am grateful to noble Lords who have taken part and to the Minister for her response. I hear what she says about the difficulties of having a different date to that promulgated by the directive. That will be a problem even with quarterly reporting. The quarter ends at the end of June. I accept that the end of June is closer to the beginning of July than the end of April, but even with quarterly reporting one still has 16 days unaccounted for—if the Commission is that rigid. So there is a problem.
I shall be very interested to hear what the Commission says about the matter. I suppose that it is inevitable that the Commission will not have responded before we reach Third Reading. That is too much to hope for, but one never knows. I may not be disappointed, but I expect to be.
Therefore, we have a hiatus that will cause problems for local authorities. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 8:
Leave out Clause 3.
The noble Lord said: My Lords, we are back to the graph. Clause 3 contains this wonderful formula which provides a default line with which waste disposal authorities must comply in years between the target years—in the event that the Government have not made another target, since they have that power.
In Grand Committee, there was general agreement that it was highly unlikely that a straight-line progression would happen. Waste disposal and planning authorities can see the directive and the Bill coming. They will unquestionably already be actively considering how they are to meet the Bill's requirements. The reality is that, if different disposal facilities or waste conservation systems are required, investment will be required. That investment will require new plant and buildings, and that means planning permission.
Waste disposal is a highly controversial subject in planning terms. It provokes the "nimby" factor in a way that I should like to think was completely unreasonable, but which, given human nature, is inevitable. It is likely that initially there will be a period when nothing changes very much. As time passes people will either accept some of these planning permissions and they will be granted or, indeed, the Minister may find that he has to grant them on appeal. If he does get appeals in this particular field I suggest that he will need to devise what I would call an accelerated process for hearing them if we are ever to meet the targets set by the Bill.
I return to Amendment No. 8, which seeks to leave out Clause 3. The clause sets a straight-line graph. We think that the key dates are the target dates mentioned in the directive. One could perfectly well leave those target dates—of which waste disposal authorities are

41
fully aware—and not worry about other dates. I am moderately confident that they would meet them. But if we put a default line in the Bill the Minister might say that would encourage backsliders. I do not think that it will encourage anyone. I think that it denies administrative reality. For that reason, the Bill would be better without Clause 3. I beg to move.
5 p.m.
Lord Livsey of Talgarth: My Lords, I heard what the noble Lord, Lord Dixon-Smith, said. I understand why he seeks to remove Clause 3, which refers to non-target years. On the overall management of the scheme, is the purpose of the clause to allow the gradual attainment of the targets, rather than authorities falling behind and failing to meet them? It seems restrictive.
I am glad to see that subsection (8) provides that consultation shall also take place with Scottish Ministers, the National Assembly for Wales and the Department of the Environment. Why are the arrangements specified in such detail? What outcome does the Minister expect? Is the clause necessary to secure the targets outlined in the Commission's proposals?
Lord Whitty: My Lords, Clause 3, which Amendment No. 8 would delete, provides default rules for setting the maximum amount of biodegradable municipal waste in non-target scheme years. Clause 2 spells out the powers to set such figures for non-target years. But it provides that the Secretary of State may only specify maximum amounts for Scotland, 'Wales and Northern Ireland with the agreement of Scottish Ministers, the National Assembly for Wales and the department in Northern Ireland.
There is possible confusion about default powers: they relate, not to individual waste disposal authorities, but to the figures and the rate of progress agreed between the four countries of the United Kingdom as contained in Clause 2. Where agreement is not reached, a formula for the default situation in each country is needed. Initially, I thought that the Opposition's objection to Clause 3 was based on a simple aversion to having algebra on the face of the Bill—many noble Lords might share that opinion. But it became evident that the noble Lord, Lord Dixon-Smith, was adept at working out what the formula meant in graphical terms.
The formula applies to the split between the countries rather than the allocation by waste disposal authorities, which is determined by the Secretary of State in England and the authorities in the other countries. A default formula is needed; otherwise, if an agreement is not reached between the allocating authorities in the four countries, our ability to progress towards the targets set by the directive could be impeded. In the absence of an agreed figure for each intervening year, the natural equal progression
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between target years is assumed by the formula. I hope that the noble Lord will realise that the formula is not as inflexible as some of his remarks suggest.
Lord Dixon-Smith: My Lords, the problem with a formula is that it is always inflexible. I apologise for misrepresenting the situation slightly. Clause 3 deals with setting a default position for England, Scotland, Wales and Northern Ireland, the four countries of the United Kingdom. I would have hoped that the Government might have had sufficient confidence in the authorities to feel about them as I do; that is to say, the default position for target years is what matters, and each authority should be left to determine its position by its own devices. The Government apparently do not feel that. They want to have a default position that is subsequently negotiable if an unexpected situation arises. I shall study the Minister's reply. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Allocation of landfill allowances]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 9:
Page 4, line 6, leave out subsection (5).
The noble Lord said: My Lords, subsection (5) needs an explanation. It states:
"Nothing in this section shall be taken as requiring any allowances to be allocated to any particular waste disposal authority".
I am puzzled as to why the Secretary of State might not wish to give a waste disposal authority an allowance to dispose of waste. I cannot think why else they are there. Clause 4 appears to imply that the Government do not need to make allocations to all waste disposal authorities but could get away with allocating to only some. It may be a perverse interpretation, but I do not see how else one could read subsection (5). I repeat:
"Nothing in this section shall be taken as requiring any allowances to be allocated to any particular waste disposal authority".
If the provision does not mean what I have suggested, I shall be pleased to hear it. But the provision could be interpreted in that way, so we should do something about it, as I am sure that that was not its intended meaning. Subsection (5) is an oddity that has crept into the Bill, perhaps because we did not question it sufficiently at an earlier stage. I beg to move.
Lord Whitty: My Lords, to some extent I understand the reasoning behind Amendment No. 9, but it is not an immediately obvious approach. If there is an agreed allocation by the allocating authority in England, and it moves at a certain pace over the years, it could be inferred that every waste disposal authority in England should reduce its waste disposal requirements at the same rate. That is not the intention of the Bill; it is that the Secretary of State in England should take into account each waste disposal authority's situation, its achievements so far, and the speed with which it can reasonably be expected to improve. Without subsection (5). it could be inferred

43
that every local authority in England, and likewise in Wales, would follow the same trajectory to meet the same target. That is not the intention of the Bill. It gives the allocating authorities—the Secretary of State, in England—greater flexibility than might otherwise be claimed
Lord Dixon-Smith: My Lords, I am fascinated. We have just agreed that a default formula is needed to apply at national level, but then that the default formula does not apply at local level so flexibility is needed. The difficulty is that the perverse interpretation of subsection (5) that I outlined is possible. Will the Minister look at its wording? It is unfortunate that it is included, when such an impossible interpretation could be made. A less ambiguous provision would be preferable. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Alteration of allocations under section 4]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 10:
Page 4, line 9, after "time" insert ", before 31st December in the year before that for which an allocation has been made,"
The noble Lord said: My Lords, Amendment No. 10 is coupled with Amendment No. 11. The Bill, as drafted, allows an allocating authority—the Government in the case of England—to make changes at any time to the allocated allowances with which a waste disposal authority must comply. The effect of the amendment is to restrict the ability to make those changes to the period,
"before 31st December in the year before that for which an allocation has been made",
and which the Minister wants to amend.
The lead planning time is not short-scale. It would be monstrous—as I believe the Minister will agree—if on the first day of the year the Government were to tell a waste disposal authority that its allocation had just been reduced by 20 per cent. Under the Bill, as drafted, that scenario is possible. It would not be unreasonable to require at least three or four months' notice on the face of the Bill.
As regards targets already incorporated into a waste reduction programme, it is unreasonable that once allocations have been properly planned for—there is a valid planning execution, particularly with a complying authority—the ground should suddenly be cut away from beneath the authority's feet by the Government's ability to change the allocations. These are significant small amendments, which will help everyone to move forward with more certainty. I beg to move.
Lord Livsey of Talgarth: My Lords, this is a reasonable amendment. We must consider the difficulties confronting local authorities during the planning process. The powers that the Secretary of State will have in relation to this proposal are rather open-ended. I am interested to know the Minister's opinion as regards lobbying by local authorities on
44
matters such as this. It would be good to know whether he has received communications from local authorities objecting to this proposal.
Lord Whitty: My Lords, the anxiety behind Amendment No. 10 is understood. The Government's intention has been clearly set out to local authorities— at least so far as concerns England. The Government made clear at the beginning of the scheme their intention to allocate allowances to each waste disposal authority. Therefore, the planning lead time would be considerably longer than the lead time implied in the amendment; namely,
"before 31st December in the year before".
Waste disposal authorities would know their allowances from the first year of the scheme through to 2020.
This part of the Bill allows a change in allowances in the light of unforeseen circumstances. I referred to this point in relation to an earlier clause. For example, should an outbreak of animal disease occur, an immediate relaxation of the targets for that year would probably be required. Looking back at the unfortunate events of 2001, the outbreak of foot and mouth occurred in February; the targets for the current and subsequent years would have been altered immediately in order to provide facilities whereby landfill could be used for waste disposal.
It would also be possible to think of other extraneous circumstances in which the allowances might be affected, either in relation to a particular authority or more generally. The Government consider it necessary to have these powers as a reserve position. Should the amendment be accepted, the Government would be allowed to change the allocation only if a change in circumstances had occurred prior to 31st December in the previous year. In view of the aims of this provision, Amendment No. 10 would be an unrealistic restriction. I hope that these amendments will not be pursued.
5.15 p.m.
Lord Dixon-Smith: My Lords, my first inclination, on hearing the Minister's comments, was to welcome the Government's intention to make allocations at the beginning of the scheme for the whole period of the scheme. I therefore began to think that my amendment was of less use.
However, the Minister went on to mention an outbreak of a major disease. The Bill is confined to "biodegradable municipal waste". We hope that the 30-year frequency of such tragic outbreaks is a thing of the past and that we shall not experience it again. With the greatest deference to the Minister, I do not think, by any stretch of the imagination, that the fact that such an outbreak occurred should affect what happens to biodegradable municipal waste, which is the concern of the Bill.
Lord Whitty: My Lords, to clarify matters, the capacity of landfill sites is affected.
Lord Dixon-Smith: My Lords, I accept that it affects the capacity of landfill sites. However, if the capacity

45
of landfill sites is a problem, that is a matter which requires alternative steps. It does not require allocations such as this. It is a matter for planning and the provision of adequate facilities.
I have heard the Minister's comments. If anything, he has probably added some slight confusion. I shall not press the amendment for now. I shall need to study what the Minister said and think about it carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 11 not moved.]
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 12:
Page 4, line 20, at end insert—
"( ) Any waste disposal authority which fails to agree with an alteration to its allocation may, within three calendar months of the publication of the alteration, appeal to the Secretary of State to have the alteration wholly or partially rescinded.
( ) The Secretary of State must publish his response and the reasons for it within the following three calendar months."
The noble Lord said: My Lords, Amendment No. 12 flows from our previous discussions. It raises an important point. If a waste disposal authority has its allocation altered, there should be a right of appeal, especially if it is altered downwards. If it were a case of expansion to meet a particular circumstance, that would be another matter. It would be rash to assume that the new system will be perfect. It will not. I imagine that within the total allocations distributed by the Minister, a certain amount of flexibility will be withheld. One area of flexibility is that the Minister might reduce some allocations. It struck us that., were he to do so, the waste disposal authority whose allocation was reduced should have the right of appeal against the reduction if it felt that it was being treated unreasonably. I beg to move.
Lord Livsey of Talgarth: My Lords, the first subsection in the amendment refers to a waste disposal authority appealing to the Secretary of State,
"to have the alteration wholly or partially rescinded".
I can foresee a situation where wholly rescinding an alteration might be questionable; but there could be a marginal case for partially rescinding it where the proposal is seen to be unreasonable and the waste disposal authority does not believe that it can comply. I shall be interested to see whether the Minister will distinguish between "wholly" and "partially".
Lord Whitty: My Lords, the amendment would require an appeals mechanism to be established for appeals against alteration of the allocation. When we debated the previous amendment, I referred to alterations that might increase the allowance. This amendment clearly relates to alterations that might reduce the allowance. The exercise of the power to change the allowance downwards is already limited by Clause 5(2) and (3) of the Bill. Clause 5(2) provides
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that an allocating authority cannot withdraw an allowance that has already been utilised; and Clause 5(3) provides that an allocating authority,
"must ensure that the total amount of biodegradable municipal waste authorised to be sent to landfills by allowances allocated by it for a year does not exceed the amount for the year specified",
under earlier clauses. Where an allocating authority does alter the allocation, it is required under Clause 5(4) to,
"publish a statement … detailing the alteration, and … explaining the basis for it".
So there are significant restraints on the ability to alter, and alteration would have to be exercised reasonably. If the waste disposal authority felt that the power had been exercised unreasonably, it could seek a judicial review of the decision in terms of the basis for making the allowances.
I merely add that the way in which the appeals mechanism is specified in the amendment is slightly odd, since the appeal is made to the Secretary of State, when the alteration would have been made by the Secretary of State. In those circumstances it perhaps does not amount to much of an appeal.
Lord Dixon-Smith: My Lords, the Minister is essentially correct in his final point. But anyone who has ever served at a senior level in a local authority is entirely used to appealing to a Minister on a matter in regard to which the Minister is propagator, judge and jury. It is not unknown for Ministers occasionally to make an adjustment as a result of such appeals. So, although the method of appeal might not totally meet the Minister's requirement—I can well understand his not wanting to get into a situation where too many people were appealing to the Secretary of State on an issue at any one time—this is a no-cost situation.
It is all very well to say that an authority can go to judicial review, but that is expensive and time consuming. A matter is not taken to judicial review unless it is of great significance. I hear what the Minister says and I shall study his comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Borrowing and banking of landfill allowances]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 13:
Page 4, line 23, leave out from "to" to end of line 24 and insert "carry forward any unused allocation"
The noble Lord said: My Lords, Amendments Nos. 13 to 15, 26 and 40 are grouped together. These amendments relate to our belief that unused allowances should be carried forward if required. The borrowing of as yet untouched allowances from the future has, however, the makings of a disaster.
It has been said several times that the capital requirement for any programme of waste reduction is enormous. None of us wants incineration, but it will have to be part of the answer and it will be expensive. That is a fact. Anaerobic digestion, which we should prefer to see, is an even more expensive system. We are

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looking at major projects combining civil, mechanical, electrical and electronic engineering, along with some fancy biological technology.
It is not our intention to open a door to the possibility of any disposal authority or collection authority using forward allowances to help to justify a project which then builds up delays. We return to the business of straight-line targets. Borrowing from future allowances will create problems. That could be seen as a reason to delay construction which would ultimately result in failure to meet targets in future years. We are looking for a smooth progression; that is our reason for advancing the amendments. I beg to move.
Lord Livsey of Talgarth: My Lords, we debated these amendments in Grand Committee. They relate to provisions in the Bill for a waste disposal authority to utilise allowances from one scheme year to a different year. This is a complex matter, but the essence of the amendments is that they reduce the flexibility of waste disposal authorities—that is, county councils and unitary authorities—to manage the new scheme and adapt it to their own circumstances. For that reason, we do not support the amendments. We thought them useful in Committee—indeed, we moved similar amendments in order to probe how the Government see the scheme working. We believe that the explanations given in Committee were acceptable and we stand by that.
Amendment No. 40, on the face it, sets out the position in a much simpler, more understandable way than the Bill itself. However, it severely restricts the ability of waste disposal authorities to move allowances from one year to another—either a year earlier or a year later—and restricts allowances that can be traded. We believe that, like the other amendments, it would make life more difficult for the local authorities concerned. For that reason—we think it a good one—the amendment should be resisted.
Lord Whitty: My Lords, the noble Lord, Lord Livsey, has said much of what I would say. The whole point of providing a trading scheme in the Bill—it is a major part of the Bill—is to enable local authorities to meet their targets in a flexible way, given that some investment will be a step-change and the timing of it may not exactly fit in with the profile of the allocations given to them.
We are concerned to ensure that targets can be met cost effectively and flexibly. That is why we are providing the ability to transfer and trade allowances. In any trading system, borrowing and indeed banking are part of the system. The use of borrowing gives waste disposal authorities a vital flexibility in moving towards the requirements; allowing for regulations that provide for both banking and borrowing in effect underpins any trading scheme and therefore increases rather than reduces the ability of individual local authorities to meet the targets. For example, major investment in infrastructure could be required in many
48
of the technologies to which the noble Lord refers. Investment could be required in years one and two but the infrastructure would not come on stream until year three. The waste disposal authority would need to borrow in the first two years knowing that it would be able to compensate for that borrowing and effectively pay back as soon as the facility was built and the capacity came on stream. That would not be possible if borrowing were not permitted.
The Bill's provision for a combination of targets and being able to borrow and bank around those targets increases rather than reduces flexibility. To remove that flexibility would undermine the whole dimension in the Bill of a trading scheme. I hope, therefore, that the noble Lord will think again and not pursue the amendment.
5.30 p.m.
Lord Dixon-Smith: My Lords, I agree in principle with what the Minister says about trading the allowances. However, we believe that trading those allowances should take place directly between authorities and not through the intervention of third parties. Trading allowances that one does not need is one thing; trading allowances from the future that one might need is entirely another. It is for that reason that we brought forward this group of amendments. I hear what the Minister says. It is to be hoped that the noble Lord is right. If not, we are all in deep trouble. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 16:
Page 5, line 12, leave out paragraph (i).
The noble Lord said: My Lords, the provision is not helpful because it implies that third parties will be able to trade in allowances which should be traded directly between authorities. Most importantly, paragraph (i) makes provision for,
"the levying of fees and charges on persons engaged in inter-year utilisation of allowances".
I am not sure which person is trading. That is why we have brought forward the amendment. We are talking about waste disposal authorities which have something to dispose of. Is the chief executive of that authority the person who is trading? Is the treasurer of the county council behind the waste disposal authority that person? Is the leader of the council who agrees that the trade may be made the person who is trading? Alternatively, is it simply a commission rate for a third party who is involved in the trade and nothing to do with the people who originated it? The position is not clear. We think that it should be. I beg to move.
Lord Whitty: My Lords, the amendment would delete one of the provisions which are intended as examples of features of a scheme which would allow the scheme to function successfully. It would remove the example of regulations providing for the levying of fees and charges on those involved in inter-year utilisation of allowances. I understand that the

49
example is fees and charges in relation to the waste disposal authorities. The provision of fees could be useful to compensate for the additional resources required for administering the banking and borrowing of allowances.
The level set would be intended to discourage unnecessary usage but would not be so high as to be a disincentive to engaging in the banking and borrowing required to enable waste disposal authorities to meet their objectives. A provision for fees and levies would in concept be to discourage unnecessary engagement in a trade and to encourage the use of borrowing and banking in ways which are directly related to the meeting of the targets; and, of course, it is permissive. In that sense, the provisions go some way to meeting the noble Lord's anxieties about the previous amendment. The proposed deletion would be negative to the regime he seeks which focuses on the achievement of the targets rather than the way in which they are achieved. It does not engage waste disposal authorities in unnecessary transactions in order to meet other objectives.
I hope that the noble Lord will reconsider the issue. I shall look again at the amendment to see whether there are other ways of achieving his objective. My understanding of the provision's intention would help to meet his objectives as well as mine.
Lord Dixon-Smith: My Lords, I am grateful to the noble Lord. I never doubt his intentions. The difficulty arises when the words on the face of the Bill are not sufficiently specific and are open to other interpretation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 17:
Page 5, line 14, after "breaches" insert ", resulting or intended to result in financial or other material gain for the offender,"
The noble Lord said: My Lords, the Bill provides that regulations may,
"make provision creating offences for breaches of provisions".
There could be many offences. We shall consider penalties somewhat later. The breaches should be,
"resulting or intended to result in financial or other material gain for the offender".
Simply creating offences is open ended. We should specify the nature of the offences. It is a small but helpful and vital point. I beg to move.
Lord Stoddart of Swindon: My Lords, I support the amendment and thank the noble Lord for bringing it forward. It must be clear in the Bill that there is financial or other material gain for the offender.
I have sought to follow the Bill at Second Reading, partly in Grand Committee, and today. I am glad that I shall not have to deal with the Bill's provisions. They are confusing in so many respects. Anyone who has to operate the measure cannot help but be confused. The people dealing with the provisions will not normally be
50
mathematicians who can work out algebraic equations; they will be handling the stuff on the ground. Therefore, they could be in breach of the regulations without any intention of gain but simply and solely because of not understanding them or because no proper explanation had been given. Their superiors might not be able to understand the regulations—they might not be mathematicians either.
I hope that the Minister will take this matter seriously. I think he will accept that this is a complicated Bill. Any measure that comes out of the European Union is bound to be complicated, and this seems more complicated than the other stuff. I hope that the Minister will treat the amendment with sympathy.
Lord Whitty: My Lords, I understand the concern that we do not want an open-ended creation of offences, but I think that the amendment limits the Bill's powers too much. We might need the provision to create offences where there was a serious breach of the information requirements. We have in mind the offence of knowingly or recklessly providing information which is false or misleading in a material particular. Although we want such an offence to cover the situation where there is material gain to the committer of the offence, we do not wish to confine it to that. For example, a misleading or false provision of information could be designed to benefit the authority for which the offender worked. It could, in certain circumstances, lead to political gain within the authority for others or for what certainly could not be described as financial or material gain, or it could be designed for the benefit of the participating authority in a non-financial sense.
When the courts consider such an offence, they will need to consider why it was committed and for what purpose. We need a provision that allows the regulations to create an offence which covers all these contingencies and not simply one directly giving material and financial gain to the alleged committer of the offence. For that reason, I must resist the amendment.
Lord Dixon-Smith: My Lords, I am grateful to the noble Lord, Lord Stoddart, for his intervention. I find it somewhat sad that the Minister's advice on the workings of the criminal mind is fuller and more unfortunately realistic than mine. I had not considered that there might be other motivations for creating misleading information in this area. I hear what the Minister said and I understand it. With considerable regret, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Baroness Ramsay of Cartvale): My Lords, before I call Amendment No. 18, I have to inform your Lordships that if it is agreed to, I cannot call Amendments Nos. 19 to 23 inclusive
5.45 p.m.
Lord Whitty Lord Whitty moved Amendment No. 18:
Page 5, line 16, leave out subsection (4).
The noble Lord said: My Lords, I wish to speak also to Amendments Nos. 29 and 35.
In its second report, the Select Committee on Delegated Powers and Regulatory Reform accepted that the delegation to create offences in the Bill would be acceptable if the maximum level of offences were the level in the European Communities Act 1972. I have therefore tabled the amendments to provide for maximum penalties in line with the maximum penalties provided for under paragraph 1(1) of Schedule 2 to that Act. These will provide for the maximum penalty on indictment to be a term of imprisonment which may not exceed two years, or a fine, or both. The maximum penalty on summary conviction would be a term not exceeding three months and/or a fine not exceeding the statutory maximum or level 5 on the standard scale.
I am aware that there is concern about allowing the power to set penalties of both imprisonment and a fine, but there are a number of precedents. For example, Section 346 of the Financial Services and Markets Act 2000 provides for the offence of knowingly or recklessly providing,
"information which is false or misleading in a material particular".
The penalties are of a similar order. This offence applies to persons authorised to carry out regulated activities under that Act.
There are a number of other precedents, if your Lordships are interested—Section 44 of the Competition Act 1998, Section 93B of the Fair Trading Act 1973 and Section 11 of the Charities Act 1993. Although the provisions may be slightly different, they cover both imprisonment and a fine. Thus, to enable us to fix the same penalties for the offence, we need to retain the "or both" provision in relation to imprisonment on indictment.
In tabling the amendment, we have complied with the advice of the House of Lords Select Committee on Delegated Powers and Regulatory Reform, as we always try to do. I beg to move.
Lord Dixon-Smith: My Lords, these amendments are welcome. The level of penalties provided in this part of the Bill caused us considerable concern, and the amendments go a long way towards relieving that concern. In fact, they supersede our amendments very neatly. It is gratifying to see that the Government have taken on board the points raised in Grand Committee about this part of the Bill. I welcome the amendments.
Lord Livsey of Talgarth: My Lords, I welcome the amendments. Much detail is contained in Amendment No. 35 which will, as the Minister said, bring the Bill into line with recommendations of the Select Committee on Delegated Powers and Regulatory
52
Reform. There is no doubt that, as previously drafted, the Bill was draconian in some respects. We are very satisfied with the Minister's proposals.
Lord Stoddart of Swindon: My Lords, I, too, am grateful to the Minister for taking account of what was said in previous discussions, particularly in Grand Committee. The previous penalties were draconian and completely unacceptable. But I wonder whether a two-year term of imprisonment provided for in the amendment is draconian, even so. Is this the sort of offence for which people should go to prison? We have heard from the noble and learned Lord, Lord Woolf, and the noble and learned Lord the Lord Chancellor that we should not put burglars in prison, certainly not for a first offence. Burglary seems a much more heinous offence than cheating under this Bill. I should have thought that the correct penalty in this respect should be an exemplary fine accompanied not by a prison sentence but by community service.
The Government have stated their confidence in the system of community service on many occasions. In this case, service to the community, coupled with a fine, would be a far better result for everyone concerned. Even at this late stage, I hope that the Minister will have yet another look at the issue to see whether imprisonment is necessary under the terms of the clause.
Lord Whitty: My Lords, I am grateful for the words of appreciation for having tabled the amendments, which I hope meet most of the anxieties. I note what the noble Lord, Lord Stoddart, says. He is not going to tempt me into commenting on the interesting discussions between the noble and learned Lord, Lord Woolf, and the Home Secretary on broader matters of sentencing policy. In this context we are talking about maximum penalties. In appropriate circumstances, the courts will be able to impose a more limited penalty, possibly avoiding imprisonment. The maximum penalty reflects the penalties for similar offences relating back to the standard of the European Communities Act—although I am sure that will not appeal to the noble Lord, Lord Stoddart. The provision has been adopted by various administrations for similar offences of producing misleading information for material benefit, under the Acts that I referred to. I therefore think it is appropriate in these circumstances too. That does not mean that there will be imprisonment for every first offence. The penalty is a maximum, not a mandatory one.
On Question, amendment agreed to.
[Amendments Nos. 19 to 23 not moved.]
Clause 7 [Trading and other transfer of landfill allowances]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 24:
Page 5, line 45, leave out sub-paragraphs (i) and (ii).
The noble Lord said: My Lords, this is a probing amendment. Subsection (3)(a) says that regulations may:
"make provision for allowances to be acquired, or disposed of. only if—
(i) allocated by the allocating authority".
Who else would give anybody an allocation that they could dispose of? I suppose allocations that had been traded could subsequently be disposed of, but this seems a little odd. We suggest that people should be able to trade only the allocations that they were given, so sub-paragraphs (i) and (ii) are unnecessary. This is a technical amendment to probe the Government on precisely what those sub-paragraphs mean. I beg to move.
Lord Livsey of Talgarth: My Lords, as the noble Lord. Lord Dixon-Smith, said, this is a technical amendment, brought forward from Committee. It relates to allowing the allocating authority—either a devolved authority or an authority in England—to make the trading and transfer scheme less flexible. We think this is desirable and support the reasons given by the noble Lord, Lord Dixon-Smith. The Government did not explain their view on this in Committee and we would like to know what they think.
Baroness Farrington of Ribbleton: My Lords, the amendment would remove the power to make provision in regulations for allowances to be traded or transferred only if allocated by a particular allocating authority and/or for specified scheme years. Such provision enables allocating authorities to prevent cross-border trading or to provide for it with certain countries. It also allows allocating authorities to restrict transfers of allowances to those allocated for the year in which they are traded, or to place restrictions on the trading of allowances that have been banked or borrowed.
We consider it important for allocating authorities to have the power to restrict trading in this way. The Bill seeks to set out a flexible framework for the scheme and to give the allocating authority for each country of the UK the ability to make their own decisions about the detailed operation of the landfill allowance scheme in regulations.
Each allocating authority will make its own regulations and each will consult on its scheme. We believe it is proper to give those allocating authorities the flexibility to frame their schemes as they see fit. The appropriate authorities in Scotland and Wales may see the benefits in relation to cross-border activity that noble Lords have identified as appropriate. However, it is not appropriate to restrict that ability for each of the allocating authorities to make its own judgment by taking a decision in advance.
I hope noble Lords will not press the amendment. We would hate to upset the Scottish Parliament or the Welsh Assembly. I can see the noble Lord, Lord Livsey, nodding his head.
Lord Dixon-Smith: My Lords, perish the thought that we should upset any subsidiary part of the United
54
Kingdom. I am grateful to the noble Baroness for her explanation, which has helped. We shall study it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 25:
Page 6, line 5, leave out paragraph (d).
The noble Lord said: My Lords, subsection (3)(d), which the amendment would leave out, says:
"make provision authorising the allocating authority to suspend the transfer of allowances—

(i) whether indefinitely or for a fixed period, and

(ii) whether generally or to a limited extent".

The Minister has already said that the allowances will be known well in advance, which will allow reasonable certainty on long-term planning for waste disposal authorities. That sort of planning will be required if the capital investment that we hope for is to be forthcoming and if the required skills are to be developed.
At the end of the process, the amount of biodegradable municipal waste going to landfill has to be no more than 35 per cent of the amount produced in 1995. That is a huge change—even bigger in view of the fact that the volume of biodegradable municipal waste has been increasing by 3 per cent a year since 1995 and was increasing before that. Should any allocating authority decide not to allow transfer of allowances at any time, disposal authorities would have to plan around the change. To allow transfer and then suspend it would increase the hazard. The authorities would first have to plan around the change, and then plan around its suspension. That would make life impossible. We felt that it was better therefore to leave out subsection (3)(d). I beg to move.
6 p.m.
Lord Livsey of Talgarth: My Lords, Amendment No. 25 would make the situation less flexible. When replying to this amendment and others in Committee, the noble Lord, Lord Whitty, said at col. GC50 on 17th December last:
"Our objective here is to promote the maximum degree of flexibility within an overall UK target. Although different allocating authorities—that is, different national governments— may establish different schemes, we do not believe it is sensible to provide a system which, in principle, restricts any exchange, transfer or trading between those authorities".—[Official Report, 17/12/02; col. GC50.]
The noble Baroness, Lady Farrington, in her reply to the previous amendment, took account of that response. But the Minister at the time did not explain why it is sensible, in this context, to allow a severe restriction on the scheme by suspending the trading allowances. This matter needs a little further probing and explanation.
Baroness Farrington of Ribbleton: My Lords, Amendment No. 25 seeks to remove Clause 7(3)(d)

55
from the non-exhaustive list of the types of provision which the regulations, under Clause 7(1) may make. Paragraph (d) provides for regulations to,
"make provision authorising the allocating authority to suspend the transfer of allowances".
As I have already explained—this was recognised by the noble Lord, Lord Livsey—we believe that allocating authorities should be able to provide for the transfer of allowances as part of a flexible landfill allowance scheme. However, the allocating authority must be able to retain some control and there may be circumstances—for example, a major emergency or a major change in policy altering the directive—where it would need to suspend trading, whether indefinitely or for a fixed period, generally or to a limited extent. It is for each allocating authority to decide the extent to which it should be authorised to suspend the transfer of allowances when making regulations to authorise trading.
I hope that that covers the unease expressed by the noble Lord, Lord Livsey, and the mover of the amendment, the noble Lord, Lord Dixon-Smith. This will be a matter for consultation. The result of that consultation and the regulations that emerge will come before this House through the affirmative procedure. I shall not be surprised if the noble Lord, Lord Hanningfield, watches carefully and takes part in the necessary consultation. I hope that with that reassurance the noble Lord, Lord Dixon-Smith, will not feel the need to press the amendment.
Lord Dixon-Smith: My Lords, the noble Lord, Lord Livsey, is helpful, as always. I am grateful also to the noble Baroness for her response.
I accept that circumstances change. If in the event there is to be consultation before any changes of this nature are made, that will go a long way to smoothing any difficulties. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 27:
Page 6, line 12, leave out paragraph (f).
The noble Lord said: My Lords, subsection (3)(f)says that regulations may,
"make provision for licensing and regulating persons engaged as brokers in the transfer of allowances".
I sometimes feel that it will not be long before we are establishing a department in the Bank of England which will be trading waste disposal allocation.
I have no difficulties with allowances being traded between authorities. I have no difficulties with the trading, whether it is of unused allocations or even future allocations. But the idea that it may become a profession with independent third party involvement seems to go beyond reason.
Local authorities are used to dealing with each other. Waste disposal authorities are no doubt the same in that respect. A good exchange of information
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exists at that authority level. I am sure that if somebody had an allocation they wished to trade, there would be no difficulty in that being done directly. We do not believe that third party intervention is appropriate. That is why we tabled Amendment No. 27. I beg to move.
Lord Livsey of Talgarth: My Lords, perhaps I may refer to the previous amendment for a moment. Chivalry is clearly not dead in this ancient House and its traditions, and I thank the noble Lord, Lord Dixon-Smith, for his kind remarks.
We thoroughly agree with Amendment No. 27. This is the paragraph in the Bill which allows regulations to be made for waste allowances brokers. We are not convinced that such a new profession is necessary. We can see that there may be sense in a local authority or the waste disposal authority employing an officer who can engage in trading between two other waste disposal authorities other than his own—if they have the contacts and skills. That may in fact benefit the council itself. But we cannot see a role for the private sector in that respect.
I can think of other examples where perhaps it would have been better in certain circumstances if the private sector had not become involved. It made some of the processes extremely complex. Therefore, Amendment No. 27 is thoroughly sensible.
Lord Lucas: My Lords, even if the private sector became involved—I agree with my noble friend that that seems unlikely—why should the brokers need licensing? They are people who are trading between local authorities. Local authorities do not need consumer protection of that sort. I cannot see why under any circumstances we need the bureaucratic structure which the Bill would create of licensing, recording and introducing all sorts of tests for people to pass.
We are talking about grown-up people dealing between themselves. If someone can make a living as an intermediary, why should be need licensing? What unimaginable sort of problems does the noble Baroness envisage if those people were to trade in an unlicensed way?
Lord Stoddart of Swindon: My Lords, I too support Amendment No. 27. I cannot see what need there is for brokerage in this industry. Indeed, I cannot see how they will make much of a living; and if they do make much of a living, the costs on the local authorities and waste disposal authorities will be much higher.
We are all used to going to brokers for insurance. But a large number of people are involved in that industry. There are only a limited number of waste disposal authorities. If they need help, they can contact their own Local Government Association. I cannot see why we need brokers, as the noble Lord said. But if we do need them, why do they have to be licensed? Why

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put yet another layer of regulation on an industry that will have regulations piled on it along with the other provisions in the Bill?
Lord Whitty: My Lords, there have been slightly different approaches from noble Lords. Some do not like the idea of having brokers; others say that if we must have them, they should be free from restraint.
Clearly, local authorities will have to make their own arrangements as to how they engage in the market. They may well run their dealings in-house with their own internal expertise. An individual authority may consider that it is better to buy in expertise on a services basis. Those engaged in that process should be subject to some scrutiny, as brokers are in other markets. The provision is not a requirement on the waste disposal authorities to employ brokers, nor is it an attempt to create a wholly new profession to deal with this trading arrangement. It is to allow the authorities flexibility in carrying out the trade and to provide reassurance to the public that those who are acting as brokers do so within a reasonable framework.
That is why we want the power to set regulations for brokers. The provision does not prescribe how waste disposal authorities should carry out their business. I probably agree with the noble Lords, Lord Dixon-Smith and Lord Stoddart, that in most cases local authorities will be perfectly capable of carrying out the activity themselves. But if they are not, we need to ensure that those who act as brokers operate within certain guidelines. That is all that the provision requires. Its deletion would remove the ability to ensure that the market functions with integrity. I hope, therefore, that the amendment will not be pursued.
Lord Lucas: My Lords, I should be grateful if the noble Lord would answer my question. Can be illustrate the sort of evil that might occur if brokers are unlicensed? Most people indulging in trading in this country do so without having to obtain a licence, particularly if they are dealing with big companies and organisations. We are not dealing in a market that requires consumer protection. What damage could occur to local authorities if they dealt with an unlicensed dealer?
Lord Whitty: My Lords, it is true that most markets do not require brokers to be licensed by the state, but most markets do not deal with council tax payers' money. Public authorities need to ensure that whoever is trusted with those deals operates in a way that conforms with public service principles.
As for the other regulations, and as my noble friend Lady Farrington said on the previous amendment, the precise provisions for regulation will be subject to wide consultation. It may be that the licensing arrangements will be minimal, but some guidance as to how a brokerage operation should act when dealing with public authorities and council tax payers' money is required. The deletion of subsection (3)(f) would eliminate the Government's ability to regulate. It is not the same as brokering in an entirely private market,
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but it is true that such brokers are generally covered by some degree of self-regulation. The equivalent in the public sector market is that the public sector regulates.
6.15 p.m.
Lord Dixon-Smith: My Lords, I hear what the noble Lord says. If I interpret him correctly, he hopes that he is buying insurance against something that will never happen. He seems to think it unlikely that third parties will come into the trade because the capacity of local authorities' waste disposal authorities is already considerable and they have expertise in dealing with each other.
I have some sympathy with the argument that there should be a capacity to regulate in the event of third-party traders. My noble friend Lord Lucas is right that the vast majority of business by way of trade in this country is done through unregulated markets. If' one looks at all business in this country, one finds that the regulated part of the market is considerably smaller than that which is not.
I hear what the Minister said. If he wants to purchase that insurance, we should not prevent him as the premium is not unreasonably high. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hanningfield Lord Hanningfield moved Amendment No. 28:
Page 6, line 20, leave out from "for" to end of line 22 and insert "the allocating authority to make available to each waste disposal authority the full financial resources necessary for it to comply with any requirement imposed on it by or under provision of the kind mentioned in paragraph (h) together with all regulations made under sections 11 and 12;"
The noble Lord said: My Lords, in moving Amendment No. 28, I shall speak also to Amendment No. 39. Both are associated with the continuing cost of this legislation.
The Minister referred several times to the costs to the council tax payer and the council. We understand why the Government are proposing this legislation now, but in Grand Committee most of us said that the Bill represented putting the cart before the horse. The Government published the paper, Waste Not, Want Not, setting out future dealings with waste. We would prefer to discuss spending money on waste minimisation and deal with the problems of waste rather than talk about extra costs such as landfill tax and regulations. The answer in the end is to find new ways of dealing with waste.
The Bill will cost money. We have estimated that local government in Essex will have to spend £ 100,000 in extra staff, keeping records and so on. That £100,000 could do a lot of other things. The Minister in Grand Committee said that local government had had a good settlement. We certainly did not have a good settlement in the South East. Local authorities covering 15 million people have had only a 3 per cent settlement. We are having to consider removing some of the measures we have now, such as composting regimes and experiments. An interesting one that we had to get rid of in Essex was the real nappies

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campaign. Disposable nappies constitute a lot of waste. We had a good campaign to persuade people to use real nappies. But the campaign was one of our budget cuts last week. Under this Bill, we are talking about spending an extra £100,000 simply on paperwork.
The amendment would help local authorities to go back to what they should be doing, which is minimising waste rather than completing paperwork. Amendment No. 28 would oblige the Government to remunerate local authorities either by direct grant or by making certain that such remuneration was included in a grant given to local government. It is important for the Government to acknowledge the extra costs to local government and to reduce what is already a severely stretched waste budget.
Amendment No. 39 is slightly different. To many of us in local government, it is rather like the delayed discharge legislation involving social services and health authorities and the fines for people staying in hospital. The Government acknowledge that and have put extra money into the system so that local authorities can cope with people who are in hospital. We say that such fines should at least be returned to local government in some way to help minimise waste. That is what this is about. Where will the money go?
The Government have acknowledged a problem by introducing the delayed discharges legislation. Could they not acknowledge the problem in relation to this Bill? Could not the fines paid into the Government's coffers go not to the Chancellor but into the waste system so that they help to implement this legislation? I beg to move.
Lord Bradshaw: My Lords, I support the comments of the noble Lord, Lord Hanningfield. The whole process of waste disposal is extremely expensive for local authorities. We have had the same sort of settlement as that mentioned by the noble Lord. Next week, I shall be invited with other county councillors to increase council tax by 13.7 per cent. It is a huge increase. I think that the principles enunciated by the noble Lord in his amendments are entirely acceptable to county councillors, who are spending ever more each year on waste disposal. If we are to meet the targets that are set for us, we will have to continue to spend ever more. It is extremely expensive.
Lord Stoddart of Swindon: My Lords, I should like to say a few words in support of the noble Lord, Lord Hanningfield, who has brought forward these two very interesting amendments. As he said, at Second Reading and in Committee, we emphasised the need to prevent the waste arising in the first place; we cannot overemphasise that need. This burden is being imposed on local authorities by very often unthinking private organisations, be they retailers, packagers, or whatever. I know that the Government are taking steps and having discussions to address the issue. Like other noble Lords, however, I urge the Minister to take this point very seriously and to step up the Government's efforts to reduce the amount of waste at
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source. That would help local authorities, waste disposal authorities and householders more than anything else that we can think of.
On the amendment itself, as we have just heard, local authorities are very strapped for cash. In some areas in the South, authorities will have to increase rates not by 13.2 per cent but by up to 20 per cent. That is going to impose an enormous burden on the authorities themselves and, of course, on their council tax payers. Where the Government impose further duties on local authorities, they have some duty to provide the means of carrying them out. Unfortunately, they are not doing that. Unfortunately, far from allowing local authorities the sources of finance they ought to have, the government under both parties have progressively reduced local authorities' ability to obtain funds to carry out the work imposed on them by the government.
I think that the two amendments in this group try to get the Government to understand what local authorities go through and to do something about it. Certainly where fines are imposed, some of that should go back into the local authorities, who are the ones who have been injured. I feel that there is enormous support for what we have been saying. I hope that the Minister will take note of it.
Lord Dixon-Smith: My Lords, the issue of fines and penalties on local authorities is inevitably a very complicated question when 80 per cent of local government's revenue comes from the central government anyway. The fines and penalties are effectively a penalty levied on the Government themselves—unless, of course, there is a way of excluding fines and penalties from the generality of local authority expenditure. The Government already have a milch cow in the landfill tax. Although I know that it is a separate issue, at present. the Government's revenues from that tax are considerably greater than their return to the waste disposal business.
I must support Amendments Nos. 28 and 39. It is simply unreal to expect that the additional costs, and then the financial penalties, can be met just like that. Those costs will have a very real impact on local tax payers. They are a part of the total package. As I said, because of successive government decisions, and not only decisions by this Government, local tax payers are contributing too small a part of local government revenue. There is a problem. These amendments would do something to help local government to reduce that problem. I think that one should take steps to ensure that the person who created the problem is not the immediate beneficiary of the money coming back. Moreover, the principle must be correct.
Lord Whitty: My Lords, I have a degree of sympathy for some of the comments made, particularly in relation to Amendment No. 39. On the other hand, I do not accept some of the premises on which the amendment is based. The additional bureaucratic burden implied by the Bill is relatively small. The Bill requires waste disposal authorities to provide information which most authorities already collect.

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The information is therefore already available and the additional burden will only be one of reporting the data to the monitoring authorities. In itself, that is not likely to create the type of financial pressures to which the noble Lord, Lord Hanningfield, and other noble Lords referred. Nor do I accept that that requirement is part of the overall pressure on local authorities.
Lord Hanningfield: My Lords, we have done an analysis through the Local Government Association of the provision's effect in large authorities. We think that it will cost large authorities such as Essex about £100,000. As I said, we could do several waste minimisation schemes for that. In such stretched circumstances, £100,000 is a lot of money.
Lord Whitty: My Lords, I note what the noble Lord says. He is clearly indicating that the way in which it is carried out in his authority will create that magnitude of problem. However, that is against the fact that, in the past two spending reviews, we have substantially increased the provision for environmental services, in which waste management is a major component. We have also provided additional funding through the waste minimisation and recycling funds. Significant additional resources are going in specifically for that purpose. The funding goes into the general grant in regard to the first category, after which it is up to the local authority to decide how it should be allocated.
The provision for allowing allocating authorities to place a financial penalty on waste disposal authorities who fail to provide the information in the form required is important to ensure that the trading scheme can operate at all. That provision therefore entails sanctions and penalties. Amendment No. 39 would require the money arising from those penalties effectively to be recycled back into the local authority's waste programme.
On the face of it, that has clear attractions, if, as the noble Lord, Lord Dixon-Smith, said, we can avoid the money going back to those who benefited from the original misdemeanour. However, it raises significant issues of principle and it is effectively a hypothecation of something approaching fine income, which has not hitherto been a part of the public finance approach. There are precedents for recycling this money within particular regimes. To be slightly Delphic, discussions are still proceeding in regard to what Amendment No. 39 covers in principle. Those discussions may or may not be completed by the time we reach Third Reading in this House, but we are actively and creatively examining outcomes not unadjacent to the outcome desired in Amendment No. 39.
I hope therefore that the noble Lords opposite will not press this amendment tonight but will instead watch this space. I hope to be able to say something more positive on Third Reading. if I cannot, the noble Lords can return to the subject at that stage. I should be grateful if, at this stage at least, the noble Lords could agree to withdraw the amendment.
6.30 p.m.
Lord Hanningfield: My Lords, I thank the Minister for that reply. On the matter of the first amendment, we will do some more work on the actual cost to local authorities, because it will be important for the Government to recognise that cost in the TSS. Even if the Government cannot accept the first amendment, I would like to pursue the second amendment further at a later stage. However, for today I accept what the Minister said.
Some money will come out of the system. No one is suggesting that it should go back directly to those who incurred the fines, but it should go back into the waste system. I repeat that that money could do much to help schemes for minimising waste. If it went back into that area, we could work on our main objective. All of us want to minimise waste. None of us want this kind of legislation— we would rather not have the waste in the first place.
The money should not go out of the local authority system—it should go back into it to help achieve our objectives. I am grateful for what the Minister said. We will wait until Third Reading before pursuing this matter any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: My Lords, if Amendment No. 29 is agreed to, I cannot call Amendments Nos. 30 to 33 inclusive.
Lord Whitty Lord Whitty moved Amendment No. 29:
Page 6, line 29, leave out subsection (4).
On Question, amendment agreed to.
[Amendments Nos. 30 to 34 not moved.]
Lord Whitty Lord Whitty moved Amendment No. 35:
After Clause 7, insert the following new clause—
"OFFENCES UNDER REGULATIONS UNDER SECTIONS 6 AND 7
(1) This section applies where—

(a) regulations under section 6(1) are making provision of the kind mentioned in section 6(3)(j), or

(b) regulations under section 7(l) are making provision of the kind mentioned in section 7(3)(l).

(2) The regulations may provide for an offence to be triable—

(a) only summarily, or

(b) either summarily or on indictment.

(3) Where the regulations provide for art offence to be triable only summarily, they may provide for the offence to be punishable—

(a) by imprisonment for a term not exceeding such period as is stated in the regulations (which may not exceed three months), or

(b) by a fine—

(i) not exceeding such amount as is so stated (which may not exceed level 5 on the standard scale), or

(ii) not exceeding such level on the standard scale as is so stated, or

(c) by both.

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(4) Subsections (5) and (6) apply where the regulations provide for an offence to be triable either summarily or on indictment.
(5) They may provide for the offence to be punishable on summary conviction—

(a) by imprisonment for a term not exceeding such period as is stated in the regulations (which may not exceed three months), or

(b) by a fine—

(i) not exceeding such amount as is so stated (which may not exceed the statutory maximum), or

(ii) expressed as a line not exceeding the statutory maximum, or

(c) by both.

(6) They may provide for the offence to be punishable on conviction on indictment—

(a) by imprisonment for a term not exceeding such period as is stated in the regulations (which may not exceed two years), or

(b) by a fine, or

(c) by both."

On Question, amendment agreed to.
Clause 8 [Duty not to exceed allowances]:
Lord Hanningfield Lord Hanningfield moved Amendment No. 36:
Page 7, line 3, at beginning insert -Subject to subsection (5),"
The noble Lord said: My Lords, Amendments Nos. 36 and 37 are enabling amendments for Amendment No. 41. Amendment No. 41 deals with the most difficult part of the Bill. I do not like to keep talking about my own authority of Essex county council, but I am familiar with it and I know about the problems there. We are a large county with 12 district councils. Most of England is covered by two-tier authorities similar to Essex with its district councils. We can only achieve what is set out in the Bill by co-operation and working together with the two tiers of local government. In Essex, we have a consortium of all the authorities and we are trying to work together to minimise waste and to find out how to dispose of it. Essex county council is the disposal authority in that case.
The worst aspect of the legislation is that officers or members of Essex county council could be penalised, fined or even sent to prison through the actions of one of the district councils. Our 12 district councils are very different from each other. Some of them recycle virtually nothing at all and others recycle up to 40 per cent. I am sure that they all have ambitions to recycle more, but in a small district council £30,000 can put 1 per cent on the council tax and some of them are reluctant to spend very much money on such issues.
It could be a political matter as well. A district council might want to get a county council of a different political complexion into difficulties— perhaps get its members put in prison. The Government must think again about this matter. The Minister indicated in Grand Committee that they would do so. It cannot be the Government's wish that one group should be penalised for the actions of another about which they can do nothing. That is the
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most severe aspect of the legislation and something should be done about it. I hope that the Minister can help on this one. I beg to move.
Lord Bradshaw: My Lords, I rise briefly to support the remarks of the noble Lord, Lord Hanningfield. The performance of district councils varies very widely according to their political persuasion and factors such as their adoption some years ago of wheelie bins, which has increased enormously the amount of waste that they have to deal with. They now find themselves in great difficulty in withdrawing something which people have appreciated. However, a waste disposal authority has to have some safeguard against a collection authority that, for reasons of economy or just out of sheer political will, decides not to adhere to the forecasts.
Lord Dixon-Smith: My Lords, the problem is that much of the country is covered by two-tier authorities and faces real difficulties if some of the collecting authorities do not sufficiently rapidly comply with the requirements of the Bill. It would be difficult if the waste disposal authority were to be penalised in such a situation without being able to do something about it.
The amendment of my noble friend Lord Hanningfield goes a long way towards putting the matter right and should be given serious consideration. I know that the Minister is familiar with the problem and I hope that he will give a sympathetic response, even if he does not say yes.
Lord Livsey of Talgarth: My Lords, I would like to draw the attention of the House to Amendment No. 66, which has been grouped with the amendment under discussion. The amendment is designed to tackle the problem by allowing the penalty to be levied on offending districts by the allocating authority—the devolved administration or the Department of the Environment in England—and not by the waste disposal authority, as we might have been misunderstood to have said in Committee. We believe that neither solution is ideal, but the Government must explain clearly how the problem will be sorted out, because this is a matter of great importance, as the noble Lord, Lord Hanningfield, has already pointed out.
Lord Whitty: My Lords, as I indicated in Grand Committee, I have some understanding of the problem that these amendments are designed to address. Clearly, the main responsibility imposed by the Bill, which deals with waste disposal, must rest with the waste disposal authority, and that is why the sanctions are directed primarily at that authority. Nevertheless, I can imagine situations where the achievement of those objectives could be undermined either through malevolence or inadvertently by the actions of one of the districts within the county area in two-tiered parts of the country. However. Amendments Nos. 36, 37 and 41, which are designed to put some of the burden on the waste collection authority, are not appropriate. As they stand, a small failure by one of the constituent

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waste collection authorities could allow the waste disposal authority to avoid the penalty although the main reason for failure lay with that authority.
Incidentally, later clauses require the Government to have a strategy for England for reducing the amount of biodegradable waste going to landfill in total. Part of the delivery of such a strategy would be to assist waste disposal authorities and waste collection authorities to work closely together. The recently published Strategy Unit report set out the options on how we might achieve that. The Government are currently considering how to take forward the delivery of the strategy in light of the recommendations from the Strategy Unit. I am not in a position today to establish whether that would require legislative form as an alternative to the approaches of Amendments Nos. 36, 37 and 41. The approach in those amendments would not be an appropriate solution to the problem.
Amendment No. 66, as the noble Lord, Lord Livsey, said, would deal with the problem in a slightly different way and does not suffer from the same disadvantages. However, other disadvantages are implicit in it. Effectively, it gives the allocation authority and therefore the central administration a quite detailed role in monitoring relations between the county and district authorities. That could be a problem in itself. If there was always the long-stop of appealing to the central authority, that could also reduce the incentive for the district and county to work together to achieve the required outcomes.
As the noble Lord, Lord Dixon-Smith, said, I undertook in Grand Committee to consider the matter further, and we are doing so. In a sense, it runs up against other principles—those of trying to reduce the number of strategies required and the degree of central interference in local authority management. However, we are trying to find a solution. As with the earlier group of amendments, I am not in a position to say whether we can produce it in time for Third Reading but we are working on it. I ask noble Lords—and the noble Lord, Lord Hanningfield, in particular—to give me some scope in this regard to establish whether we can come up with a solution that I can commend to the House at Third Reading. If not, we shall at a later stage return to this debate and to the various solutions proposed in this group of amendments. In the meantime, I hope that noble Lords will take account of at least some of my comments.
Lord Hanningfield: My Lords, I thank the Minister for that response. If the Bill is to work, a solution must be found to this problem. The Minister appeared to suggest that it was a fairly small problem. Geographically, most of England is two-tiered in terms of land mass. Most of this waste is therefore being deposited in that area. Whatever happens to regional government, it will probably be some years before there is regional government, even in the North East or North West, where there may be two tiers. For many years, we shall have to make this legislation work.
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We welcome legislation involving Waste Not, Want Not to help us to minimise waste and to help the Government to take some initiatives. However, we understand that that is some time away. We are rushing through this legislation because we need it. This will happen and we desperately need to find an answer to the two-tier problem. As I said, we have a consortium in Essex that is working well. Districts, particularly small ones, have particular problems. Unless we have some ammunition to help us in that regard, the whole Bill will be difficult to implement.
I accept what the Minister says. I shall ask the Local Government Association also to examine the matter. We may be able to come up with a helpful suggestion in the near future; I am not sure when Third Reading will be. People need to put their minds to this. If the Bill is enacted as currently drafted, it will be flawed. I thank the Minister for his comments and. I am pleased that he is considering the issue. I shall certainly look at it again. We may make suggestions before Third Reading so that we can find a solution. Otherwise, the legislation will be very difficult to implement. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 37 not moved.]
6.45 p.m.
Lord Whitty Lord Whitty moved Amendment No. 38:
Page 7, line 12, at end insert—
"(3A) If—

(a) a waste disposal authority is liable under subsection (2) to a penalty in respect of a scheme year that is not a target year,

(b) that scheme year ("the penalty year") is later than the first target year, and

(c) the total amount of biodegradable municipal waste sent in the penalty year to landfills in pursuance of arrangements made by waste disposal authorities in the United Kingdom exceeds the amount specified under section 1(1)(a) for the last target year before the penalty year,

the authority is also liable to a supplementary penalty."
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 64 and 65.
These amendments will insert new subsection (3A) into Clause 8 and make consequential amendments to Clause 25. The amendment to Clause 8 extends the circumstances in which a waste disposal authority would be liable for a supplementary penalty. We have concluded that that is necessary because on further consideration there were circumstances in the current Bill where a waste disposal authority would be responsible for the UK as a whole to be fined without any way of levying supplementary penalties.
Supplementary penalties are intended to enable at least a proportion of any fines imposed on the UK by the European Court of Justice for Failure to comply with a directive to be passed on to the individual waste disposal authorities that are responsible for such breaches.
Once a target year under the landfill directive has passed, there is a continuing obligation on the UK not to exceed the targets under the directive for that target year. The UK could be fined if, for example, it exceeded the 1910 target—I apologise, I am only a century out of date. The fine could be imposed if it exceeded the 2010 target in 2011. The amendment would ensure that the waste disposal authority would be liable for a supplementary penalty in all circumstances, including that one. However, Clause 8 as currently drafted permits a supplementary penalty to be imposed only in a target year. That would omit the circumstances I have just described
The new subsection also provides for a waste disposal authority to be liable for a supplementary penalty in scheme years between target years if it is liable to a penalty under Clause 8(2) and the amount of biodegradable municipal waste sent to landfill in the United Kingdom in that scheme year exceeds the amount specified under Clause 1(1)(a). That is a sensible precaution, which would enable any European-imposed fines to be shared by those who are responsible for our failure to meet the targets. I beg to move.
Lord Dixon-Smith: My Lords, we are moving deeper into the difficult area of penalties. Elsewhere in the Bill, we dealt with the problem of the Minister having flexibility to decide how to deal with penalties: to remit them, delay them and so on. We are now having to act to increase them and to deal with the post-target-year situation in which the country has to pay a fine. The Government are right to this extent: the Government are not a waste disposal authority. I should think they are jolly glad they are not. They could none the less be penalised and they want to push the penalty on to those who caused the problem.
If we are dealing with a situation in which the Minister has the power to decide whether or not the penalty should apply, the Minister will once again have to act as judge in his own case in order to recover moneys that the Government must pay on. I do have too much difficulty in deciding which way the Chancellor of the Exchequer would advise a Minister to decide such a matter, whatever the merits of the case. We are in a very complicated area. I hear what the Minister said and I note that the penalty that is in question in this regard relates only to exceeding the amount specified for the past target year. The Minister mentioned 1910—I am making the mistake that he made; I am getting my century wrong. He mentioned the 2010 target year and the possibility of a penalty being levied in 2011. I assume that if we get to 2015, the penalty would still relate to the 2010 target. Hopefully by then that situation would not arise, but if the penalty related to the graph that we spoke about earlier, I believe that there would be a problem. Perhaps the Minister would clarify that matter.
Lord Livsey of Talgarth: My Lords, we believe that this amendment is worthy of support in that it tightens up the system, builds on the target year and locks on
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to trading, transfers and so on. Clearly, this is important if the legislation is to be effective. If we want to see a reduction, there must be a means of applying methods to achieve that. We support the amendment.
Lord Stoddart of Swindon: My Lords, unless I have misunderstood the matter and misunderstood what the noble Lord, Lord Whitty, said, the situation is that if the Government—in other words, Britain—failed to meet the criteria under the directive the Commission could impose a fine, although the Government could appeal against that fine to the court. So far as I can see, we have now reached a situation in which the Government can be fined an unknown and unlimited amount by the European Commission or by the European Court of Justice and they are now seeking to push that penalty on to the people whom they believe have committed the offence.
We are getting into a convoluted state in which one authority can levy a fine on the Government. The local authorities did not go to Europe and agree to the directive; the Government agreed to the directive and therefore presumably they agreed that the Government could be fined. The Government did not say, "That is all right, the local authorities will pay that fine". As I understand the situation—these matters are complicated and perhaps I have misunderstood—they agreed to the directive in the full knowledge that, if the Government did not meet the targets, the Government could be fined. The local authorities did not agree to that. The local authorities had nothing to do with it. Having agreed to a directive under which a fine could apply, the Government are seeking to transfer that fine to the local authorities, which, as we have already discussed, are pretty strapped for cash. They would find it extremely difficult to meet a fine, particularly if it were a heavy one. Perhaps the Minister could comment on that.
Lord Whitty: My Lords, I can comment on that. It raises central issues of principle in regard to the way in which we implement EU law. The local authority in the frame would have breached UK law in relation to what would be prescribed under the provisions of the Bill. The fact that part of that led to an EU fine would mean that the local authority was already in breach of what are essentially UK allocations under this legislation. Although I understand the principal argument that the noble Lord, Lord Stoddart, is making, the breach arises primarily as a result of a breach of UK law, albeit in fulfilment of the obligations under the directive.
The Commission fine would be up to a maximum of £180 million a year, which is a pretty hefty amount. Were such a fine to be imposed as a result of particular waste disposal authorities' failure to meet their UK targets, it would be reasonable for the Government to pass on the cost of that fine, in whole or in part, to those waste disposal authorities.
Lord Stoddart of Swindon: My Lords, did the Minister say "£180 million"? That is an enormous fine that could be passed on to local authorities. I know a

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fair amount about European Union matters, but I had no idea that a fine of £180 million could be levied in breach of this directive. It is unthinkable; it is outrageous; and it is particularly outrageous for the local authorities that would have to bear it.
Lord Whitty: My Lords, that is the maximum fine. The degree to which we failed to fulfil the targets would inform the level of fine. The Commission, the Council of Ministers and the court have a jurisdiction in this matter—a jurisdiction that I know that the noble Lord, Lord Stoddart, does not accept and, in so far as he has to accept it, he resents it. Nevertheless, that is a fact of life. Therefore, having imposed targets on local authorities in accordance with Acts passed through Parliament, it is not unreasonable for the Government to pass on to the local authority responsible for the failure to meet the targets that led to a penalty on the Government all or some of the cost. We can debate the wider issues another time.
In reply to the noble Lord, Lord Dixon-Smith, the Commission, and if necessary the court, can impose only fines relating to failure to meet the target at the scheme date. Therefore, failure to meet the 2010 target will continue to be the relevant criterion until we reach the next scheme date. The intervening target—I refer to the algebraic formula that the noble Lord, Lord Dixon-Smith, dislikes—would not be subject to intervention from the Commission or a fine from the Commission. That would have to relate to the years for which the European legislation specified the target and would therefore be valid until the next one.
With that explanation and the additional explanation that the amendment extends matters in a narrow sense to the post-scheme year compared with what is already in the Bill—noble Lords have not challenged the situation in relation to the scheme year itself, although that may be an oversight by the noble Lord, Lord Stoddart; but we have passed that part of the Bill—I hope that noble Lords will accept the amendment.
On Question, amendment agreed to.
[Amendments Nos. 39 to 42 not moved.]
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 43:
After Clause 8, insert the following new clause—
"WASTE DEPOSITED IN PUBLIC OPEN SPACES AND ON HIGHWAYS

DEPOSITING OF WASTE FOR COLLECTION
(1) A local authority may designate any part of the following land in the area of the local authority as land to which this section applies—

(a) a public off-street car park;

(b) a recreation ground, garden, park or open space under the management or control of a local authority;

(c) a path, pavement or highway which is open to public access, whether or not as of right;

(d) an area of land beside a railway under the ownership or control of a railway undertaking, a station or a station forecourt.

(2) The local authority may, when designating any land under subsection (1), provide that the designation of the land shall have effect in relation to one or more of the following—

(a) commercial waste;

(b) household waste; or

(c) industrial waste.

(3) Any person who, without the written consent of the local authority, or in breach of any condition subject to which the local authority's consent has been given, places, or causes or pormits any other person to place, commercial waste, household waste or industrial waste for collection on land which is subject to a designation under this section relating to that type of waste, shall be guilty of an offence and liable to summary conviction to a fine not exceeding level 3 on the standard scale.
(4) Where the commission by any person of an offence under subsection (3) is due to the direction, act or default of some other person, that other person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings for the offence are taken against the first-mentioned person.
(5) The conditions of consent referred to in subsection (3) may include conditions as to—

(a) the times during which the waste may be placed for collection or period for which the consent is valid

(b) the part of the place designated under subsection (1) where the consent is to apply;

(c) the use of means by which waste can be attributed to any particular occupier of premises;

(d) a requirement for a person to produce on demand to an authorised officer of a local authority or to a constable documentary evidence of the consent; and

(e) any other matter that the local authority has reason to believe will reduce the depositing of waste in public open spaces and on paths, pavements or highways without consent.

(6) A local authority may charge such reasonable fee for a consent under this section as they think fit, and in setting the level of such fees shall take into consideration—

(a) any reasonable costs or expected costs incurred or to be incurred in connection with the administration of the provisions of this section;

(b) the cost or expected cost of enforcing the provisions of this section.

(7) A consent under the section may be revoked and the conditions of consent may be altered by notice to the person to whom the consent was given.
(8) A person aggrieved by—

(a) the withholding by the council of consent referred to in subsection (4);

(b) the conditions subject to which the council give such consent; or

(c) the revocation of such consent under subsection (7);

may appeal to a magistrates' court by way of complaint for an order and on such appeal the court may dismiss or allow the appeal or may vary any conditions imposed by the council.
(9) In this section "commercial waste", "household waste" and "industrial waste" have the same meanings as in section 75 of the Environmental Protection Act 1990 (c. 43).
(10) Any land so designated shall be visited daily, Monday to Friday, by an appropriate collection vehicle."
The noble Lord said: My Lords, this group of amendments relates to a point which was raised in Grand Committee and which, I admit, somewhat widens the scope of the Bill. I believe that it would be helpful if something similar could be put into legislation.
We are all familiar with the problem of a partially developed major site, which has become a casual dumping ground for waste. It might be all kinds of waste. This group of amendments would permit local authorities, using a licensing scheme, to designate particular areas within these sites to try to control this creeping menace. The amendments widen the scope of the Bill because they would permit any type of waste to be deposited within these areas. They provide a licensing scheme, which would be charged on the person owning the land. It is hoped that if something of this kind can be achieved, we can reduce the menace of casual fly-tipping, which in urban areas is even more offensive than it is in rural areas. I believe that it is particularly an urban problem that we are seeking to deal with in this series of amendments.
We believe that they would help. They were lifted from the London Local Authorities Bill. We have tried to change the wording slightly, but I suspect that we shall be told that we still have not got it right and that the amendments are inappropriate in this Bill. The difficulty is that it is almost impossible to find an appropriate slot for something of this kind because everything is too specifically directed in some other way. We thought it worth while raising the matter again in the hope that we might persuade the Minister to give a somewhat more sympathetic hearing and do something before the Bill completes its parliamentary passage. I beg to move.
7 p.m.
Lord Livsey of Talgarth: My Lords, we support these amendments. At first viewing they may seem to be rather prescriptive, but the issue of litter is an enormous problem in the country at present. The situation with regard to illegal dumping is very bad and has deteriorated markedly over the years. I agree with the noble Lord, Lord Stoddart, about the creation of more disposable packaging. We believe that this new clause will assist in improving the situation. Some parts of the country are now looking extremely tawdry. I believe that this amendment will lead not only to a tidying up of litter, but of the law as well. We support this measure as it would certainly discourage the dumping of waste materials where they have no place.
Baroness Farrington of Ribbleton: My Lords, as the noble Lord, Lord Dixon-Smith, made clear, these new clauses are similar to the ones included in the London Local Authorities Bill in the last Session which were eventually withdrawn by the sponsors.
We all agree that fly-tipping is a serious problem. In fact, I challenge the noble Lord, Lord Dixon-Smith, when he said that it is not as much of a problem in rural areas. In some places it is equally serious in both. We do not believe that these particular provisions add anything extra to local authorities' powers to help them to alleviate the problem.
Under Section 51 of the Environmental Protection Act 1990, waste disposal authorities have a duty to provide specified places for residents to deposit their
72
household waste. There are already stringent powers in place to prevent the illegal disposal of waste. Both the local authority and the Environment Agency already have the power to prosecute offenders. In the event of conviction, a defendant can be subject to severe penalties including an unlimited fine or imprisonment for up to five years. The local authority and the agency also have the power to remove fly-tipped waste and to recover the costs incurred from those responsible.
However, we are considering further changes to legislation to tackle fly-tipping as part of the antisocial behaviour legislation and in the consultation paper Living Places—Powers, Rights and Responsibilities. We agree that it is a serious issue but, as the noble Lord, Lord Dixon-Smith, predicted, we do not believe that it is within the scope of this Bill or that it is appropriate to tackle this issue now. We hope that the response to the consultation paper to which I have referred will lead to further action being taken, should that be deemed necessary.
Lord Dixon-Smith: My Lords, I am grateful to the noble Baroness for her reply, particularly for the additional information which she has given that perhaps something might be brought forward in the anti-social behaviour legislation which would help in this area. I always thought that this is a subject which should be tackled and it now appears that it might be, albeit in some other legislation. We await that with interest. The only problem is that inevitably we shall be too late with the new provisions to do anything about the present situation and legislation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Clause 9 [Monitoring authorities]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 45:
Page 7, line 30, at end insert—
"( ) monitor how much biodegradable waste is sent to landfills in pursuance of arrangements made other than by waste disposal authorities in the area;"
The noble Lord said: My Lords, the Bill lays down that a responsible allocating authority must have a strategy for reducing the amount of biodegradable waste that goes to landfill. Unless I have missed something, there is nowhere in the Bill anything which relates to monitoring or controlling non-municipal biodegradable waste. The Bill seems to assume that all such waste is municipal. I doubt very much whether that is so; and if it is not so, we need to think about it.
With differential landfill charges, with inert material charged at £2 per tonne and biodegradable waste currently at £13 per tonne and rising, very often there is a temptation for people to add a part of biodegradable waste to inert waste. That is a separate and serious problem which needs to be covered.
Another aspect, particularly with regard to small traders, is that they give employees black bin-liners filled with waste to be taken home and disposed of as domestic waste for which no charge is payable, rather than for it to be disposed of as industrial waste. There

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is a question of definition within this Bill which is not adequately covered. If the Minister can give an assurance that all biodegradable waste is municipal waste and that nobody other than municipal authorities has the right to dispose of it, I shall be happy to withdraw the amendment. I can think of non-municipal organisations which produce quite a lot of biodegradable waste. The Army is one. If they can take the waste direct to a tip, we have a problem. I beg to move.
Baroness Farrington of Ribbleton: My Lords, the noble Lord, Lord Dixon-Smith, has identified that there are other sources of biodegradable waste. They are not covered by the Bill, but they are by this strategy. I should like to write to the noble Lord to set out the detail of how it will apply.
This legislation deals with municipal biodegradable waste. We are aware that the Environment Agency currently does not monitor all biodegradable waste going to every landfill in England and Wales. It would be an impractical task to do so, even for solid municipal waste, for which there are more data than for any other broad waste stream. It would still be impossible and extremely costly. However, I shall write to the noble Lord on the detail of how this will be achieved within the strategy as opposed to within the Bill regarding the municipal stream. I hope that he will withdraw the amendment.
Lord Dixon-Smith: My Lords, I am grateful for the Minister's helpful response. We were concerned that there was a possibility for leakage. It is nice to know that that is being considered and I await her reply with interest. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Scheme regulations]:
Lord Hanningfield Lord Hanningfield had given notice of his intention to move Amendment No. 46:
Page 8, line 24, leave out subsection (3).
The noble Lord said: My Lords, this amendment was related to my earlier amendments. In view of the Minister's statement on the problems of two-tier authorities I shall not pursue it today, but I may return to it.
[Amendment No. 46 not moved.]
Clause 12 [Powers in relation to landfill operators]:
[Amendment No. 47 not moved.]
Clause 13 [Disclosure of information by monitoring and allocating authorities]:
Lord Livsey of Talgarth Lord Livsey of Talgarth moved Amendment No. 48:
Page 10, line 4, leave out "may" and insert "shall"
The noble Lord said: My Lords, I am moving the amendment for my noble friend Lord Greaves, who, as I explained earlier, is unwell. I shall speak also to Amendment No. 49. These Liberal Democrat amendments originate from Committee stage. They relate to the sharing of monitoring information about municipal biodegradable waste between monitoring and allocating authorities and between themselves.
The Government say that this will be allowed. We believe that that is not strong enough and that there should be mandatory provision. It is not a major issue but it needs sorting out. In Committee a debate took place between the noble Lord, Lord Stoddart, and the noble Baroness, Lady Farrington, about whether the word "may" sometimes means "shall". Our amendments address that question, specifying in the legislation that such sharing shall take place; that there will be no choice about it; and that it must happen. It should be compulsory.
We believe it is necessary to make such provision because the debate in Committee was unclear—in fact, it could be inferred that trading will not be allowed to take place in some areas. We believe that the use of "shall" would be better. Monitoring authorities will be monitoring just about everything in the scheme, which can be seen in Clause 9.
We would be extremely grateful in the light of what was said previously for a definitive explanation; otherwise we are likely to return to it at Third Reading. I beg to move.
7.15 p.m.
Lord Whitty: My Lords, the information referred to in this part of the Bill may be disclosed between allocating authorities or between allocating authorities and monitoring authorities; that is, between the administrations in England, Scotland, Wales and Northern Ireland or, for example, between them and the Environment Agency in England and Wales.
By seeking to change "may" to "shall", the noble Lord, Lord Livsey, is uncharacteristically trampling over the devolution settlement. A decision will be required by each of the allocating authorities to engage in trading. The regulations governing that trading will be a matter for them. If the regulations permit cross-border trading between. say, England and Wales, it will be necessary to have an exchange of information between the monitoring authorities for each country.
However, before regulations were made permitting cross-border trading there would have to be an agreement between my department and the National Assembly for Wales. They would need to make provision for an exchange of information. In those circumstances, we would be allowed to exchange that information.
If no such agreement was reached or the Welsh authority did not go in for either a trading scheme in its entirety or a cross-border element within that trading scheme, it would be wrong for the Bill to specify that it should disclose to us its information, or vice versa.
Existing concordats between ourselves and the devolved administrations will allow us to act in conjunction as far as possible, but an additional provision making it a duty to disclose in circumstances where we do not know whether all the authorities will go for a trading scheme and what kind of scheme it would be is a step too far. It would not observe the

75
proprieties in our relationship with the devolved administrations. I hope that noble Lord will not pursue the amendment.
Lord Livsey of Talgarth: My Lords, I thank the Minister for that explanation. It behoves us to read the details in Hansard and to consider them. I understand his point about the devolved administrations. As a Welsh Member of the House of Lords I am obviously concerned about that relationship. I therefore beg leave withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 49 not moved.]
Clause 15 [Registers: public access]:
Lord Livsey of Talgarth Lord Livsey of Talgarth moved Amendment No. 50:
Page 10, line 35, leave out "may" and insert "shall"
The noble Lord said: My Lords, in moving Amendment No. 50, which relates to amendments on the Freedom of Information Bill and comes from Committee stage, I shall speak also to Amendment No. 51, which is new and seeks to cover points made by Ministers in Committee.
Clause 15 refers to registers of information kept about the operation of the scheme for biodegradable municipal waste. It states that regulations may be made to allow the public to inspect and obtain copies of the register. We believe strongly that that provision should be mandatory. I shall listen to what the Minister has to say in relation to the Government's comments on previous amendments.
In Committee, the noble Baroness, Lady Farrington, said that the provision could not be made mandatory because the register might contain sensitive commercial information. In our view that point should already be covered by the wording in Clause 15,
"as is of a description specified by the regulations".
The noble Baroness said:
"We believe that all relevant information should be in the public domain, except for sensitive financial details, pricing and trading details".—[Official Report, 18/12/02; col. GC82.]
Amendment No. 51 uses her exact words. If that is what the Government believe—and we sincerely think they do—perhaps it should be put on the face of the Bill. If not, we wish to know why.
We feel strongly about this matter, but I shall await the explanation from the noble Baroness. I beg to move.
Baroness Farrington of Ribbleton: My Lords, we have discussed this matter with the devolved administrations. Their intention, as is ours with regard to England, will be to consult on being as open as possible. Neither we nor the devolved administrations would wish to change the current provisions in the Bill in case the consultation exercise identifies a legitimate reason for withholding certain types of commercial information. We would not want to see the success of the scheme undermined.
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Therefore, that remains an issue for each devolved administration and one on which there will be consultation. I can assure the noble Lord, Lord Livsey, and the House that no information will be withheld from the public domain without good reason. I hope that, with that assurance, he feels able to withdraw the amendment.
Lord Livsey of Talgarth: My Lords, I welcome the Minister's statement and thank the noble Baroness for the spirit in which she made it. I believe that she has just made a sincere statement. We hope that the public will have access to this information as widely as possible within the constraints she mentioned. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 51 not moved.]
Clause 16 [Strategy for England]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 52:
Page 11, line 9, at end insert—
"( )The strategy must include measures to ensure that the development, alteration or advertisement of industrial or commercial products does not result in an increase of biodegradable waste."
The noble Lord said: My Lords, we are in the business once again of trying to improve the psychological pressure on everyone to reduce the amount of waste that they create. Unfortunately, we seem to create increasing waste difficulties, if I can put the matter that way.
A simple example is when I buy stamps. I do not buy one sheet of paper, I buy two. I buy a sheet of stamps. They are slapped on a non-sticky backing page and instead of licking a stamp and putting it on the envelope I have to tear it out with considerable care. When I have torn all the stamps out I have two things left. I have a neat trellis framework and a backing page, which both go in the bin.
Nowadays one's credit card account always comes as two pages. Even if one has only one transaction in a month, one gets one page with the transaction on and another with the tear-off bit at the bottom with which one pays. It should be possible to use one page.
A third example is that of building societies. Instead of having pass books, which worked satisfactorily for years and years—one took one's pass book along and got it written up once a month—they insist on sending every customer a computer printout. These may be small matters. Individually they are small. But the fact is that they increase the volume of waste of which we have to dispose. Some of it can be recycled. One hopes that it would all go to recycling, but the probability that it will all go for recycling is unlikely in the near future.
So we thought it important to put on to the face of the Bill that the strategy should include measures to ensure that the development, alteration or advertisement of industrial or commercial products should not result in an increase in biodegradable waste.
I sometimes think that the way that we work in this House increases the amount of biodegradable waste because we generate a huge amount of paper. But there

77
is a serious point here. Society has gone convenience and packaging crazy. It has its good aspects and one should not deny them, but it has a problem. One has to look only at one's Sunday newspapers and the stuff that comes with them—and in particular there is the junk mail which goes straight into the wastepaper basket—to see that there should be scope for a considerable reduction. It would be greatly to our convenience if that were the case. I hope that the Government in their strategy can find some way of exerting pressure to try to persuade some people to bring this desirable end about. I beg to move.
Lord Livsey of Talgarth: My Lords, we strongly support the amendment. We wish to see a decrease in the amount of waste. We feel that these amendments seek strongly to achieve that objective.
Lord Stoddart of Swindon: My Lords, I, too, support these amendments. I will not go through all the arguments which I went through at Second Reading, many of which have been repeated by the noble Lord, Lord Dixon-Smith. It is absolutely essential that the Government take this matter very seriously. They must not impose penalties on householders—because that is where it will end—where the householder is not the culprit. I say once again that we should deal with the problem at source rather than at the finish.
Lord Whitty: My Lords, I agree with almost every word that the noble Lord, Lord Dixon-Smith, has said, including his stricture on this House for producing far too much paper one way and another. The amendments are unnecessary because the strategies that the noble Lord is looking for are already a legal requirement.
For England, Section 44A of the Environmental Protection Act requires the Secretary of State to prepare a strategy on the recovery and disposal of waste. That covers the prevention or reduction of waste—minimization—and its harmfulness. There are similar duties in relation to the devolved administrations. So, although the noble Lord's objectives are desirable, they are already in law and the Government have taken significant steps, particularly in relation to the response to the Strategy Unit report, in order to see that they are strengthened and carried out. So I accept his objectives, but the measures are already there.
Lord Dixon-Smith: My Lords, I am delighted and immensely reassured to hear that the measures are already there. I need say only that, in my experience, they have not yet had any effect. With that unhappy thought, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty moved Lord Whitty moved Amendment No. 53:
Page 11, line 29, at end insert—
"( ) Where subsection (1) is satisfied by policies set out in a statement tinder section 44A of the Environmental Protection Act 1990 (c. 43) (national waste strategy), if the statement was
78
prepared before the coming into force of that subsection it does not matter that the policies were not formulated for the purposes of that subsection."
The noble Lord said: My Lords, in moving Amendment No. 53, I shall speak also to Amendments Nos. 55 and 58. They clarify when the requirements of Clauses 16, 17 and 19 will be satisfied. That is already provided for in Wales at the request of the Welsh authorities and further advice suggests that this express provision may cast doubt on the situation in the other administrations.
Clause 16 requires the Secretary of State to have a strategy for reducing both the amount of biodegradable municipal waste from England that goes in the landfills and the amount of biodegradable waste from outside England that goes to landfills in England. Clause 16(4) requires the Secretary of State to consult prior to formulating policy. There are similar arrangements for the devolved administrations. Those are in addition to the duties under Section 44A of the Environmental Protection Act.
Amendment No. 53 would insert an additional subsection which is similar to the provision for Wales. Scotland and Northern Ireland are also formulating policies in relation to their own legislative process. These amendments will ensure that time and resources are not wasted on re-consulting on documents which meet the requirements for landfill strategies under Clauses 16 to 19 and have already received significant consultation. I beg to move.
On Question, amendment agreed to.
7.30 p.m.
Clause 17 [Strategy for Scotland]:
[Amendment No. 54 not moved.]
Lord Whitty Lord Whitty moved Amendment No. 55:
Page 12, line 28, at end insert—
"( ) Where subsection (1) is satisfied by policies set out in a statement prepared before the coming into force of that subsection, it does not matter that the policies were not formulated for the purposes of that subsection.
( ) Subsection (4) may be satisfied by consultation before, as well as by consultation after, the coming into force of this sect ion."
On Question, amendment agreed to.
Clause 18 [Strategy for Wales]:
[Amendment No. 56 not moved.]
Clause 19 [Strategy for Northern Ireland]:
[Amendment No. 57 not moved.]
Lord Whitty Lord Whitty moved Amendment No. 58:
Page 13, line 42, at end insert—
"( ) Where subsection (1) is satisfied by policies set out in a statement prepared before the coming into force of that subsection, it does not matter that the policies were not formulated for the purposes of that subsection.
( ) Subsection (4) may be satisfied by consultation before, as well as by consultation after, the coming into force of this section."
On Question, amendment agreed to.
Clause 22 ["Scheme year" and "target year"]:
[Amendments Nos. 59 to 61 not moved.]
[Amendment No. 62 not moved.]
Clause 24 [Activities to which Chapter 1 does not apply]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 63:
Page 15, line 33, leave out "small"
The noble Lord said: My Lords, I have little confidence that the Government will accept my amendment to leave out the word "small" from the clause. I accept the Government's difficulties with transposition of regulations from one language to another. But, for the life of me, I cannot understand what a small waterway is. If one digs out a ditch, is it a small waterway? At the other extreme, while I was at school, the River Nene was thoroughly dredged out and all the material deposited along the banks. Is that a small waterway?
My other reason for moving the amendment is to apologise to the House, particularly the Minister. I am afraid that we had a group of amendments, one of which related to Clause 24(1), to which the Government were sympathetic. Unfortunately, for some strange reason, they did not get deposited. I regret that we shall have to table them at Third Reading. I had hoped to avoid that. I beg to move.
Lord Whitty: My Lords, as the noble Lord says, this is a problem of transposition of the terms of the directive into the Bill. Removing the word "small" would mean that deposited waste alongside all waterways would be excluded from references to sending waste to landfill. That would mean that the Bill would have a narrower definition than that in the directive, leaving us with the possibility of a challenge from the Commission and a potential adverse judgment. Although the possibility is remote, noble Lords will agree that that would be undesirable.
The amendment would have a negligible effect on the Bill as a whole. Non-hazardous sludge from dredgers is not municipal waste; therefore, the exclusion of "small" would make little difference. In effect, all waterways could probably benefit from its exclusion. It would be better to retain the wording of the directive and, therefore, avoid any possibility of challenge.
Lord Dixon-Smith: My Lords, I hear what the Minister says with a certain amount of delight. This a departure from the purposes of the Bill, against which he has religiously fought since we first tried to introduce the issue in Grand Committee. However, I understand the background to the amendment. I think it is wrong, hut, if it has to be done, so be it. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Penalties under Chapter 1: general]:
Lord Whitty Lord Whitty moved Amendments Nos. 64 and 65:
Page 16, line 27, after "8(3)" insert "or (3A)"
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Page 16, line 27, leave out "target" and insert "scheme"
On Question, amendments agreed to.
[Amendment No. 66 not moved.]
Lord Whitty Lord Whitty moved Amendment No. 67:
After Clause 25, insert the following new clause—
"REGULATIONS UNDER CHAPTER 1: CONSULTATION
(1) This section applies to regulations under this Chapter, other than regulations under section 1, 2, 3 or 22.
(2) Before making regulations to which this section applies, an allocating authority shall (subject to subsection (4))—

(a) consult such bodies or persons appearing to it to be representative of the interests of waste disposal authorities in its area as it considers appropriate,

(b) consult such bodies or persons appearing to it to be representative of the interests of persons concerned in the operation of landfills in its area as it considers appropriate, and

(c) consult such bodies or persons appearing to it to be representative of any other affected persons as it considers appropriate.

(3) In subsection (2)(c) "affected person" means a person appearing to the allocating authority to be a person who will or may be affected by the regulations.
(4) The allocating authority need not consult as mentioned in paragraph (a) or (b) of subsection (2) if it appears to the authority that the interests mentioned in that paragraph will not be affected by the regulations."
The noble Lord said: My Lords, again, this amendment is a fulfilment of a recommendation of the Select Committee on Delegated Powers and Regulatory Reform. It would give effect to the committee's recommendation about consultation by inserting after Clause 25 a new clause dealing with consultation on regulations. It would place on us a statutory obligation to consult representatives of waste disposal authorities, landfill operators and others who may be affected under Chapter 1 of the Bill before we make any regulations.
In tabling the amendment, we have complied with the recommendation of the Select Committee. We have, therefore, fulfilled the obligation that the House would expect us to meet in reflecting the committee's comments in the Bill. I beg to move.
Lord Livsey of Talgarth Lord Livsey of Talgarth moved, as an amendment to Amendment No. 67, Amendment No. 68:
Line 18, leave out subsection (4).
The noble Lord said: My Lords, this amendment would remove subsection (4) of Amendment No. 67, which states:
"The allocating authority need not consult as mentioned in paragraph (a) or (b) of subsection (2) if it appears to the authority that the interests mentioned in that paragraph will not be affected by the regulations".
That does not go along with what the Minister has just said. It would be possible to exclude certain elements under subsection (4). Earlier subsections of the proposed new clause provide that an allocating authority shall,
"consult such bodies or persons … as it considers appropriate".
If a body's interests will not be affected by the regulations, why are they still to be considered appropriate? We wish to probe to find out why subsection (4) is included. It appears to exclude certain aspects. We wish to see consultation across the board, but the subsection appears to deny us that. I beg to move.
Lord Whitty: My Lords, subsection (4) would merely remove the need to consult representatives of waste disposal authorities or landfill operators whose interests are not affected. For example, the regulations might deal solely with the provision of information from the waste disposal authority to the monitoring authority. In that case, the role of landfill operators is not affected, so it would be inappropriate to engage in an additional form of consultation on such regulations. That is why the exclusion is included in the clause.
Lord Livsey of Talgarth: My Lords, I thank the Minister for his reply. None the less, I feel that bodies such as operators should be informed about 'what is happening, even if not through consultation. Perhaps I am being pedantic. I beg leave to withdraw the amendment.
Amendment No. 68, as an amendment to Amendment No. 67, by leave, withdrawn.
On Question, Amendment No. 67 agreed to.
[Amendment No. 69 not moved.]
Clause 26 [Regulations under Chapter 1: procedural provisions]:
Lord Whitty Lord Whitty moved Amendment No. 70:
Page 16. line 30, leave out from "instrument" to second "the" in line 38 and insert—
"that —

(a) contains regulations under this Chapter made by the Secretary of State, and

(b) is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,

shall be subject to annulment in pursuance of a resolution of either House of Parliament.
( ) No affirmative-procedure regulations shall be made by the Secretary of State unless a draft of the statutory instrument containing the regulations (whether containing them alone or with other provisions) has been laid before, and approved by a resolution of, each House of Parliament.
( ) A statutory instrument that—

(a) contains regulations under this Chapter made by the Scottish Ministers, and

(b) is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, the Scottish Parliament,

shall he subject to annulment in pursuance of a resolution of the Scottish Parliament.
( ) No affirmative-procedure regulations shall be made by the Scottish Ministers unless a draft of the statutory instrument containing them (whether containing them alone or with other provisions) has been laid before, and approved by a resolution of, the Scottish Parliament.
( ) A statutory rule that—

(a) contains regulations under this Chapter made by the Department of the Environment, and

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(b) is not subject to affirmative resolution within the meaning of section 41(4) of the 1954 Act,

shall be subject to negative resolution 'within the meaning of section 41(6) of that Act.
( ) A statutory rule that contains (whether alone or with other provisions) affirmative-procedure regulations made by the Department of the Environment shall be subject to affirmative resolution within the meaning of section 41(4) of the 1954 Act.
( ) In this section—
"affirmative-procedure regulations" means—

(a) regulations under section 1 or 2, and

(b) the first regulations to be made under each of sections 6, 7 and 10 by each of the Secretary of State. the Scottish Ministers and the Department of the Environment;

"the 1954 Act" means"
[Amendment No. 71, as an amendment to Amendment No. 70, not moved.]
On Question. amendment agreed to.

Disabled Children
7.40 p.m.
Baroness Massey of Darwen Baroness Massey of Darwen rose to ask Her Majesty's Government how they will respond to the needs of families with disabled children as highlighted in the Barnardo's report Still missing Out?
The noble Baroness said: My Lords, this debate is inspired by a report from Barnardo's and also by a meeting of the All-Party Parliamentary Group for Children, of which I am co-chair. At the meeting, a group of parents talked about their experiences of having one or more disabled children. I found the meeting a moving experience, raising many issues which I shall put before the House today.
I have been moved again by the number of noble Lords who are not only speaking but who have expressed interest in this all too brief debate. The noble Lord, Lord Morris of Manchester, particularly asked me to convey his apologies for being unable to be present. Noble Lords will know of the commitment of the noble Lord. Lord Morris, to working for disabled people over many years.
I ask the Minister to respond to this widespread interest—I know that she, too, is interested—by perhaps calling a more comprehensive, separate meeting to discuss the issues raised today. Such a meeting might discuss how to ensure that reports, policy and legislation incorporate the rights of the disabled. It is not enough to put disability into separate reports—important though they are. It must be integrated across government. For example, I shall be asking for disability in children to be included in the Green Paper Children at Risk, which will shortly go out for wider consultation. The paper has been produced with collaboration between government departments.
This has been, and is, a good government for children. The Barnardo's report recognises that progress has been made to benefit families with disabled children. However, there are two key issues. The first is ensuring that people understand their entitlement to benefits and, secondly, collaboration between services at a local level.

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I shall give a brief background to the Barnardo's report Still Missing Out? and to general difficulties for parents of disabled children. I shall then focus on health as a key concern for the parents of children with disabilities. I know that other noble Lords have issues that they want to raise in some detail.
I should like to ask the Minister: which government policies, such as the child tax credit and child support reform, will improve the situation for parents of disabled children? What progress is there on the early support programme set up by the Department for Education and Skills? Do we yet have examples of good practice in supporting parents who have disabled children? For example, is there good collaboration between agencies at a local level?
First, I shall give some general points, all stated in the Barnardo's report. It is estimated that there are more than 360,000 disabled children in the UK. Approximately 90 per cent of those children live at home. During 2000–2001, 65 per cent of households with one or more disabled children, and 72 per cent of households with a disabled child and a disabled adult, were in the bottom two-fifths of income. The link between poverty and poor health is well documented. It is an even more chronic problem in families where there is disability. On average, it costs three times as much to bring up a disabled child—for example, the high costs of medical equipment, special play equipment and transport and, of course, disabled children tend to be dependent on parents for longer. However, take-up of disability living allowance is low, with poor families who have disabled children accessing it least. They do not, it seems, perceive the invalid care allowance as being available to parents. More targeted information is imperative.
These disadvantages raise serious concerns which parents feel are not always met. I shall say more about that later. In its responses to the Department of Health's Healthy Start report and to the Department for Work and Pensions' report Measuring Child Poverty, the Disability Alliance makes some very powerful points. Poverty is complex and multifaceted. How much more do educational disadvantage, poor health, inadequate housing and low expectations affect those with disability? These factors are more difficult to quantify than income and work status.
I turn to one aspect of these concerns—health—as an example of disadvantage to disabled children and their parents. We all know how important health is to life chances and the ability to function. A report from the Children and Young People's Unit found that health and family were the top concerns among young people between 13 and 19 years-old. Health inequality has been researched and reported on for years. Health inequality begins at birth and can influence an entire life. This inequality is particularly relevant to disabled children and their parents. Poor health in such families can affect not only the disabled child, but the parents and any siblings of the child. As one parent said:
"We don't just have a disabled child, it affects every single aspect of our lives".
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Perhaps I may give some examples of problems relating to health. Access to healthy and nutritious food can be an issue. For example, families with disabled children may not be able to shop around for cheap but nutritious food. Special food may be required—for example, in relation to some allergies or syndromes. As suggested by the Disability Alliance, the Healthy Start scheme should be clearly linked to comprehensive welfare advice schemes with clear information about benefit entitlement. As stated in the report, this is an issue for joined up thinking and,
"a public health issue rather than a medical intervention".
Play and leisure facilities are often difficult for a family with a disabled child. They involve not only facilities which are appropriate, but staff who are trained to deal with physical, emotional or mental disability. How does a parent cope with the play needs of a disabled child and a child who is not disabled in the same family? Costs are high. Giant finger dominoes cost £40; a building set in Velcro costs £80. How do families relax or go on outings or holidays? As one mother said:
"We don't go on holidays, we go on military manoeuvres".
The Council for Disabled Children points out that hospital appointments can be a severe problem, which may continue throughout a child's life. The treatment may be some distance from home, especially in rural areas. The costs can be enormous.
All these complexities place an enormous strain on families, and on marriages. That is not good for families and not good for society. The Department of Health report Valuing People sets out some of the challenges in relation to people with learning difficulties, all of which are applicable to those with other disabilities. The challenges include: better coordination of services, better planning for young disabled people as they move from childhood to adulthood, better opportunities for housing and employment, and better support for carers and better health care. The recent Childcare Review also emphasises the need for co-ordination of services—a recurrent theme in many reports relating to children and families. Co-ordination at national and local level is vital if parents and children are not to miss out.
I hope that I have shown—I know that other noble Lords will show—parenting and family life is more challenging for parents who have a disabled child, and an immense effort needs to be made to inform and involve them.
We have statistics. We know the challenges. We need to listen to what the parents of disabled children and the children themselves say in order to help us deliver the needed support. The aims of improving health, reducing health inequality and reducing poverty must include improving the lives of those families where there is disability.
I return to my original questions to the Minister. What good practice exists; and which government policies will provide practical and positive help for these families? As I said earlier, I hope that we can

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continue this dialogue in order to have a positive impact on the lives of children and parents living with disability.
7.50 p.m.
Baroness Pitkeathley: My Lords, I thank my noble friend for giving us the opportunity to focus on the needs of families with disabled children—always a vital interest of mine. Although many of them do not think of themselves as carers, but simply as a mum, a dad or a grandparent, they are carers, with all the responsibility that that carries.
For families of disabled children, finances are always a problem. There have been significant improvements in benefits in relation to disabled children in recent years. One example is the recent extension of the invalid care allowance to the over-65s, which will help many grandparents of disabled children who play such a vital part in their care.
But, still, half of all households with disabled children lack some of life's basic necessities because they cannot afford them. A rise in the rate of disability living allowance would help some of those families out of poverty. But it is important, as my noble friend reminded us, to encourage families to claim the allowance. Studies consistently show that those most in need—lone parents and minority ethnic parents, for example—frequently fail to claim.
I should like briefly to draw your Lordships' attention to three other financial issues. The provisions within the council tax which allow parents of children over 18 to claim a discount but which prevent parents of younger children being allowed to claim should be reviewed.
A lack of assistance from the Social Fund is frequently a cause of problems for parents of disabled children, causing them to turn in ever-increasing numbers to charitable bodies to get help with basic essentials.
A cost which is often overlooked is that of visiting children who are in-patients in hospital. On 25th March last year I brought this matter to the attention of the House and was told that the situation was under consideration. Yet families still say that nothing has changed. As one mother said,
"My son spent many months in and out of hospital for various operations. With two other children to care for I had to take time off work and we were practically penniless. Assistance with travel costs to visit him in the hospital would have taken some of the pressure off … My son is now due another operation and you can imagine the financial and emotional stress. I never want to open the kitchen cupboard doors again and be faced with emptiness".
I hope that the Minister can give us some hope in that regard.
Many aspects of family life which other parents take for granted are not possible for those with a disabled child. I was interested to hear my noble friend refer to leisure activities. Contact a Family—the leading organisation for parent carers—produced a survey last summer of families' experiences of leisure provision entitled Everybody Here?. The survey, of over 1,000 parents, found that 46 per cent said that their budget
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limited outings and 80 per cent said that their disabled children could not join clubs. One mother told researchers:
"I want to weep when I look at all the lists of riding/swimming/ drama clubs open to other children, all of which he would enjoy".
Giving disabled children equal access to leisure is of vital importance. That is why I am delighted that discussion about funding children's play from the national lottery is now under way. I declare an interest as chair of the New Opportunities Fund, the largest of the lottery distributors. If that happens, we must ensure that the needs of disabled children are an essential component.
As regards practical support, direct payments will in the future provide many more parents with the ability to control the services that they receive for their children. Local authorities need to promote direct payments and support parents in their new responsibilities so that they can gain the confidence to use them effectively.
The Government are to be congratulated on ensuring that the needs of disabled children and their families will be at the heart of the national service framework for children. The expert working group on disabled children, chaired by Francine Bates, the chief executive of Contact a Family, gives us the opportunity to make a real difference to health and social care for the 350,000 or so disabled children in England.
The Government need to make a commitment to providing the funding to enable health and social services to raise their standards to ensure that children's services can indeed improve. They also need to ensure that the emerging findings from the children's NSF are published before March so that local plans for health and social care services over the next three years can give proper regard to the needs of disabled children. Can the Minister say when the document will be available?
The national service framework for children gives us a very real opportunity to change children's lives, and inevitably the lives of their parents, for the better. But it must be accompanied by putting priorities right and providing the funding necessary to do the job if disabled children are to move as far up the social policy agenda as we are committed to seeing happen.
7.55 p.m.
Baroness Howarth of Breckland: My Lords, I thank the noble Baroness, Lady Massey, for introducing the debate on behalf of the 360,000 disabled children— 100,000 of whom will be severely disabled. This is the group on which I want to focus. These children will survive because of the wonders of modern medicine. They will live longer than their predecessors. Most will live with their families—carers who need and deserve support in their task.
Although we can acknowledge the work of many initiatives in social services—of the specialist teams and the voluntary organisations—we have to

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remember that it is far from enough. In the words of one of the parents in the recent "Panorama" programme,
"There's no structure to support families like ours, it's a bit like living in a war zone".
To provide such families with the support that they need requires resource planning, sensitive assessment and priority. I am sure that other speakers will talk about these. But those that need expensive care—care which we presently require the parents to deliver— need detailed thought. We seem prepared to give expensive initial medical care. We fight hard to save premature babies. This is vital. But follow-up is equally important in the survival of the families who will then need to care for the children.
As vice-chair of John Grooms, an association dealing with the provision of services for younger disabled adults, I have been chairing an inquiry examining the future needs of these young people. We had to start where the problems begin; namely, with the needs of children in families. We found that there is a serious lack of data on which to plan. There are lots of numbers, but it is unclear as to where they lead. It would help if health and social care could produce easily available information on which plans could be produced for the future.
Unexpectedly, medical science has not reduced the numbers of children born with serious disability. Certainly, the figures for conditions such as spina bifida have fallen. The fall is attributed partly to antenatal screening and terminations of pregnancy; and over 50 per cent of it is attributed to an increased intake of dietary foliate—I congratulate the Government on their education programmes in this area. We should rejoice that at least 85 per cent of children born with this condition will live into adulthood. But if we add to those the large number of premature babies born each year who would previously have died but will survive and will suffer severe disabilities, we see that planning for the social care of this increasing number of youngsters is imperative.
We all know that the gaps in social care are huge. The Government are working to ensure that plans are in place for early discharge, yet the reality is that families with totally dependent children may have little or no respite or home care support. Can the Minister assure us that, in the pressure to meet other targets, the services available to these families will not be reduced, and that they will not find themselves even lower down the priority list than they are at present?
Voluntary organisations play their part. Perhaps I may briefly mention two small ones. Last year, I visited the PACE centre in Aylesbury, which is developing conductive education for children between six and 12. The staff believe that the most disabled child can learn through daily routines, working on the principle that they will develop. I met parents anxious because at any moment the funding from the local education authority might be withdrawn or their child allocated to other provision for reasons of local
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budgets. The director, a brilliant teacher of severely disabled children, spends much of her valuable time worrying about funding.
In the few moments I have left I should like to draw attention to a group of families whose children have invisible disabilities. These children look like other children. They are bright and active and their development for the most part goes through normal stages. Their needs are less obvious but no less distressing. They have the complex congenital heart condition, hypoplastic left heart syndrome. The future of this group of youngsters is completely unknown as the eldest surviving child in this country is only 12; one child in the United States is 17. For years these families were isolated by the complexity of the disease and the distances they had to travel to receive treatment. The charity, Left Heart Matters, met those needs. I had the privilege of being invited to become their patron last year. It has been a huge privilege to be with those families, listening to their hopes and dreams for the future—a future which just might not come. But their frustrations are equally great. For many, if they cannot see the disability, it is not there. Schools do not always recognise the needs of these children and benefits are not easy to come by because one cannot see what is happening.
Do the Government have words of encouragement for the many voluntary groups providing the human local care that families can access to survive? Will they encourage both local and central government to include them in their plans? Families should not feel that they are living in a war zone but in a responsive, caring and civilised society. For it is on how we respond to the needs of these families that the quality of our civilisation will be judged.
8.2 p.m.
Baroness Masham of Ilton: My Lords, I thank the noble Baroness, Lady Massey of Darwen, for asking this Question. The interest of your Lordships will, I hope, filter down to some of the families with profoundly disabled children who may feel isolated. frustrated, let down and at breaking point if they are not receiving adequate help and, even worse, if the promised help does not turn up.
The Barnardo's report has highlighted the extra expense of bringing up a disabled child and has given several cases as examples. A week ago on Sunday, "Panorama" highlighted some of the desperate struggles some families with profoundly disabled children were having and cited Oxford county council as one authority which cut services.
When a diagnosis of disability is made the reaction of parents is often one of disappointment. Some families have a wonderful way of coping and caring while others cannot manage and give up the struggle. Many mothers with disabled children would love to go out to work and would be better for it. But so often people will not take the responsibility of helping to look after a disabled child, so the parent can be tied 24 hours a day, seven days a week.

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I know a couple who have three children. One has a heart problem and has had operations, with more to come. He is a floppy child and has a statement at school. There are other disabled children at the school who do not have statements so the school uses his statement to help them, thus diluting the help he should have. Surely, if those children need extra help they should also have statements. The parents of the little boy do not want to become unpopular, so nothing is said. Assessment of the needs of children with a variety of disabilities can take a long time. There is often a lack of occupational therapists: they go on leave, get married or leave the country. What I find sad in the case of this little boy is that his two brothers are asked to parties but he is not. That is another 'way of missing out.
A disabled child's shopping list may be very long: suitable housing; extra clothing and bedding; special food; childcare; suitable holidays; speech and physiotherapy; and special equipment. But kind and understanding attitudes to a disabled child and the family can make all the difference in helping to overcome the many problems which do and will arise.
Why is it such a struggle to access the appropriate help for individual children—whether for special help at a school for dyslexic children or with the choice of many special pieces of equipment which may not be available on the national health? There are so many things which disabled children need. Sometimes obtaining specialised medical help can mean travelling a long way to a specialised hospital unit, involving extra cost, strain and stress on the family and the siblings. There are sometimes charitable funds for travel to hospital but that help is patchy and often not available or unknown.
I hope that this short debate will highlight some of those needs. I am sure the Minister will do her best to help with this worthwhile and urgent matter of disabled children and their families.
8.7 p.m.
Lord Rix: My Lords, we need from time to time the opportunity to peep into the lives of families with disabled children, and I am glad that the noble Baroness, Lady Massey, has provided such an opportunity. As president of Mencap, I am particularly grateful.
We are looking at ordinary families trying to enable children with exceptional needs to live, as far as possible, an ordinary life. They are not in general the sort of family that hits the headlines in the tabloid press, or makes for popular television documentaries. Instead of sex, violence and infidelity, there are six loads of washing a day, sleepless nights and sheer dogged devotion day in and day out for years on end. I think of the mother who said she had had quite a. good night—no screaming from 1.30 a.m. to 4.30 a.m.
The Barnardo's Still Missing Out? report shows that such families are still missing out—on benefits, on services, on support which would make life a little more normal. In some ways it is worse still, because some families who have had minimal support are now
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losing it. You may recall that the Unjust Steward in the biblical parable was commended on cutting in half the bills of his master's customers. Sadly, in these days— if last week's "Panorama" programme is to be believed—it is the sad lot of some care managers to be required by their masters to cut in half not the bills but the services of customers. Today Oxfordshire; tomorrow—who knows where? But Oxfordshire is not unique in having to produce £9 million in savings rather than the more pleasant task of how to spend additional resources.
In the shadow of the "Panorama" programme, but unrelated to it, the Learning Disability Helpline recently—a week last Monday, I think it was—took a call from the parent of a severely disabled child who was at her wits' end because she was being told in effect that once she broke down someone would do something, but since she was only at the first stage of breaking down, it was too early to give her priority. Happily, a Mencap officer was able to infuse a sense of urgency to a level at which things were done and solutions found. But we all know that solutions arrived at in a matter of hours can be less satisfactory than solutions carefully thought through over several weeks. On such snap decisions may turn the future cohesion of the family and the future welfare of the child.
Of course, as we have just heard, the Government have done quite a lot for severely disabled children, as no doubt the Minister will, quite properly, remind us. More good things, including benefits changes, are in the pipeline. I know, because Ministers and officials have been very helpful in involving the voluntary sector in their planning. But I would like to build on this with some questions, to which answers in due course would be much appreciated.
Would the Minister agree that any child with profound intellectual disability and additional physical and sensory disabilities should be in the priority category for support, whatever the nature of the local eligibility criteria? Would the Minister confirm that the Valuing People White Paper target of 6,000 additional health and social care support packages for severely disabled children was met by the end of last year? Finally, as touched on by other speakers, will the Minister encourage her DWP colleagues to take the opportunity of the review of DLA and other benefit procedures to ensure that parents are prompted to make appropriate claims for benefits at such key stages as age 3, 5, 8, 11, 14 and 16, when support arrangements are also reviewed?
There is no reason why children should miss out, when Parliament and government have gone to some trouble to extend the help available to them. It is not beyond the realm of possibility, in an electronic age that gives me instant access to 24-hour world news, to turn that familiar lament, "If only I had known", into a celebratory, "Thank goodness someone told me".
8.12 p.m.
The Lord Bishop of Lichfield: My Lords, I understand that there is a known rise in childhood

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autism in this country. I understand that there is a high proportion of children with serious and complex disabilities. I understand that there is an increase of life-limiting illnesses among disabled children. An Oxfordshire study by the parents advisory group confirmed many of the findings of the Barnardo's report.
The Oxfordshire study revealed the overwhelming need in 232 families, studied for a range of support services. They needed help with overnight respite care and regular reliable short breaks for carers. They needed help either in the family home or elsewhere. They needed sitters, after-school clubs and appropriate play and leisure provision to overcome social isolation.
The overall shortfall in funding has meant that the introduction of new regulations and legislation for children has not been properly implemented to meet baseline needs. Further, the lack of sufficient funding is exacerbated by the increasingly complex funding formulae. I gather that the local authority circular last year is a good example of the headaches afflicting officers and councillors when they are trying to work out what grants are available and when they are available for the children in need.
I urge the Government to consider increasing funding to local health and social services authorities to a level above inflation so that the needs of families with disabled children can be more adequately met.
8.14 p.m.
Lord Chan: My Lords, I congratulate the noble Baroness, Lady Massey of Darwen, on securing this short debate highlighting the needs of families with disabled children. I shall focus on the needs of ethnic minority families with disabled children whom I have met in the north of England.
The Barnardo's report Still Missing Out?, which has been referred to in the debate, found that,
"Minority ethnic families are more likely to have low incomes and unsuitable housing".
As the cost of raising a child with severe impairment is said to be three times more than that of raising a non-disabled child, most, if not all, ethnic minority families with disabled children live in poverty. Child poverty in inner London affects 600,000, or 53 per cent of children. Poverty is highest among ethnic minority groups, with 73 per cent of Pakistani and Bangladeshi children in inner London and 55 per cent of black children living in poverty.
Many ethnic minority families are less able to access services due to their limited English and knowledge of available services. Information in south Asian languages and in Chinese is lacking. This lack of translated information has serious consequences, because ethnic minority families with disabled children tend to be economically disadvantaged by not claiming disability living allowance. This loss of disability living allowance is a significant loss to
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meeting the needs of their disabled children, including clothes, food and equipment. Most ethnic minority families are definitely still missing out.
Ethnic minority families face other barriers from mainstream providers, such as institutional racism in the form of insensitivity to culture, other languages and religions and stereotypes concerning family support networks that are no longer common. The extended family is no longer the norm among black people, Chinese and even Bangladeshis, Pakistanis and Indians.
Among some Chinese and south Asian families, there is still a stigma attached to disability. This makes them reluctant to seek help from their own community. Therefore, minority ethnic parents feel isolated from their own communities and cannot go out to social events or attend places of worship. Among south Asian communities in northern England, about one in five families with disabled children are single-parent families.
Short breaks for disabled children are a popular service with parents and carers. Ethnic minority families do not have equal access to this service. A review of short breaks for disabled children from minority ethnic families was commissioned by the Joseph Rowntree Foundation and published in May 2002. It found that mainstream services for disabled children do not adequately cater for ethnic minority children, while services for ethnic minority groups do not adequately cater for disabled children.
High levels of unmet need were found among south Asian families in particular. They prefer home-based services such as sitting and befriending, but these services are not easily available for ethnic minority families with disabled children through social services.
Further, misconceptions about the role of social services and social work increase parents' anxiety about whether their child's culture, language and religion will be respected. Therefore, there is a reliance on poorly resourced voluntary groups in their communities. A shortage of black social workers and short break carers means that services cannot adequately represent the communities they serve. In Liverpool this problem led to the establishment of a bilingual Chinese work unit in 1986 that is still valued today.
Government policies to end child poverty are not reaching disabled children, particularly from ethnic minority families. I support the recommendations made by Barnardo's to give the families of disabled children better access to existing funds, such as the disability living allowance, and to extend other schemes for their benefit. All disabled people in Britain are entitled to basic living standards. Children should be given opportunities to express themselves through art, craft and technology.
I had the pleasure of opening an exhibition of art by disabled people in Wirral at the Bebington Civic Library on 14th January this year. That display of high quality work was the result of a partnership between the Rotary Club and the Conquest Art Group from London. Disabled people in Wirral express themselves

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particularly well through art. We need to help both disabled children and their families to take advantage of similar opportunities.
Finally, the Government have done much for children. I look forward to the Minister telling us what will be done to help ethnic minority families with disabled children receive the services to which they are entitled and ensure that they do not miss out.
8.20 p.m.
Baroness Howe of Idlicote: My Lords, I, too, thank the noble Baroness, Lady Massey, for raising the Barnardo's report, Still Missing Out?, for discussion this evening.
The Government's aim is to see all children lifted out of poverty. It is a brave aim and they are to be applauded. But it is not an issue capable of a "quick fix". The long-term effects of poverty and deprivation on children's prospects in adulthood have been well known, but inadequately acted upon, for decades. If that is the possible effect on all children brought up in deprived circumstances, there are those within that overall group who are even more clearly destined to fail unless given maximum financial, as well as social and educational, support.
It is clear that disabled children living with families are one such category. More than 50 per cent of them are estimated to be living in poverty. Those children also fall within other government priority targets for action. For example, they are more in need of, and yet find it less easy to obtain, childcare or day-care places. Only one in 20 of those schemes accept disabled children.
When I think back to Lady Allen of Hurtwood and her dedicated work in the 1960s to set up adventure playgrounds, including adventure playgrounds for handicapped children, it seems sad, to put it mildly, that we have not progressed much further in that respect.
Another government priority which I applaud is to encourage a return to paid employment. But that is considerably less easy for parents of a disabled child or children, and of course doubly so for single parents. Not only are childcare costs higher, the likelihood of hospital visits and so forth make it even less possible for that to be a viable option.
Yet, while recognising those extra burdens, in reply to a PQ from me on 29th January, the Minister confirmed that it was still very much a priority for all parents and parents of disabled children. In response to a Written Question from me on 21st November last, she said that in the 10 local authorities supporting the highest number of families with disabled children, the number ranged between 325 and 460. In the 10 local authorities supporting the fewest, the family numbers ranged between five disabled children and 30. Even making allowances for differences in numbers of disabled children living in different parts of the country, that really would appear to illustrate a considerable disparity in the scale of provision by local authorities. Once again, it would appear that post code determines the level of assistance.
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A further problem is the limited take-up of benefits. I shall not refer to that because others have. But a more vigorous campaign to get the message across is surely needed in that regard, plus further simplification of the language used in the leaflets and an assurance they will be printed in the required number of ethnic languages.
I want to refer to one last point in relation to suitable accommodation. Barnardo's points to the considerable difficulties and the cost of obtaining the basic housing or housing improvements necessary to bring up a disabled child. Not only is the financial, means-tested help often inadequate, but the considerable delays that occur must cause families who qualify even further strain and distress. Is this an area in which the Minister can offer some prospect of improved service in the future?
I remind your Lordships of two crucial facts. Despite the problems and considerable strains on family life—as mentioned by other noble Lords—which caring for disabled children entails, some 90 per cent live with their families at an estimated cost to the community of £130. I stress that it is only £130. That figure compares with the residential care costs for a disabled child disclosed in a reply to my PQ of £l,400—more than 10 times as much.
It clearly makes straightforward, economic sense, quite apart from the obvious humanitarian aspects, to do everything that we can to support those families in the invaluable role that they play. The alternative, which has been mentioned by many noble Lords, is to see many families driven to the point of giving up in despair. Anyone who watched the Sunday "Panorama" programme two weeks ago would sadly have received an all-too-clear picture of the strains that such families endure day in, day out.
8.26 p.m.
Lord Best: My Lords, in congratulating the noble Baroness, Lady Massey, on initiating this debate, and Barnardo's on its report, I want to underline the crucial importance of housing to the lives of families with disabled children, as raised by the noble Baroness, Lady Howe.
I declare an interest as a director of the Joseph Rowntree Foundation which has produced a series of 11 reports over the past eight years on meeting the housing needs of families that include disabled children. From that body of evidence, I suggest that the housing dimension is a frequently neglected yet critical factor. One of our surveys showed that nine out of 10 families with a disabled child reported at least one problem with their housing. Yet there is usually no agency responsible for mapping those families' housing needs or developing strategies to meet them. As the mother of a severely disabled nine-year-old said, "If you've got your home right, you can cope. Within 24 hours of being in this house, it was like, wow, she was a different child".
The most frequent difficulty is lack of space to play, to take time out, or to use the kitchens and bathrooms. Those problems are a by-product of building much smaller houses in the past 25 years. 'The good news is

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that the Government's recent introduction of important changes to building regulations—part M—go a long way towards the standards for "Lifetime Homes" advocated by the Rowntree foundation. It means that all new family homes will now be more accessible, with level entrances, wider front doors, more circulation space and a downstairs loo. However, for the vast majority of families with disabled children, the issues are about extensions and adaptations to existing accommodation.
The disabled facilities grant is available to meet adaptation costs. But the DFG system has been creating some serious problems. We supported a group of parents involved in the campaign, "Homes Fit for Children", which focused specifically on this issue, particularly with regard to its very tough means test. Despite their low incomes, 65 per cent of the families surveyed were not eligible for some or any support from the DFG. Most of the families remain to this day in totally unsatisfactory circumstances because necessary changes to their homes are beyond their means.
There are also undoubtedly too many cases of unwarranted delay in processing grants. Our research shows that 20 per cent of families said that they had waited more than a year to hear the outcome of their DFG application, and half of those had been waiting for more than two years. Often the delays resulted from shortages of occupational therapists to assess the child's needs, as was said by the noble Baroness, Lady Masham. During these extended waiting times, assessments become out of date; disabled people or their carers have accidents—a number of them in our survey ended up in hospital; and unfortunate habits of dependency become established.
In summary, tens of thousands of parents are forced to bring up their disabled children in homes that are totally unsuited to the child's needs. While there is no space in which to play during their most important formative years, disabled children can miss out on the opportunity to develop; the poorer outcomes—not to say the cost to the public purse—will be felt throughout the whole of their remaining lives. Parents are left to cope carrying children—who get heavier as they get older—upstairs, to the toilet, and so on. Hidden away behind closed doors, an enormous amount of frustration, unhappiness and anxiety exists within these homes for the want of a move to better premises or the adaptation of the property.
I welcome the news that the Government are now working on the introduction of a "moving grant" which will help "open up the option". I also welcome the recently announced joint circular from the Office of the Deputy Prime Minister and the Department of Health which is aimed at making the system more "joined up" than at present. I cannot commend too highly the refining and accelerating of such measures and others to combat the housing problems which mean that so many families with disabled children are indeed missing out on a decent quality of life.
8.31 p.m.
Baroness Wilkins: My Lords, I, too, thank the noble Baroness, Lady Massey of Darwen, for highlighting the needs of families with disabled children. The debate is particularly timely as there is much concern that disabled children are not being placed at the heart of the current government initiatives concerning children and that, as a result, their particular needs are being ignored. I very much welcome the noble Baroness's proposal to ensure the inclusion of disabled children in the forthcoming Green Paper Children at Risk.
Disabled children make up about one quarter of all "looked after" children and at least 13 per cent of all children identified as "in need". They therefore make up an important group of children for whom social services departments should be providing support. For example, we know that increasing numbers of disabled babies with high levels of needs are surviving into childhood and adolescence. Their parents often struggle to provide the 24-hour care that these children need, which sometimes involves nursing care. As we saw in last week's "Panorama" programme, which has already been mentioned, parents make enormous efforts to look after their children at home, but they need a break from caring at regular intervals and also help in emergencies.
The most popular services with parents are the family-based short-break services where properly trained and paid foster careers provide high-quality care, enabling children to stay for short periods of time to give their parents respite. However, far too often these services are not available, either because local authorities do not pay enough or do not provide adequate training or support for foster carers. Parents are left desperately unsupported and the children may well end up in some form of institutional care. I should therefore like to ask the Minister what plans the Government have, as part of their Choice Protects initiative, to ensure that this issue of fostering is properly addressed.
Much research concerning disabled children and their families highlights the need for health, education and social services to work together. The Government's plans for children's trusts will therefore be crucial in improving service delivery for disabled children, and it is vital that they are placed at the very heart of this initiative. I therefore ask the Minister whether any of the pilot areas for children's trusts will be focusing specifically on services for disabled children and their families.
Most importantly it is the issue of housing which gets left out of this equation and which needs urgent attention. I endorse the comments made by the noble Lord, Lord Best. A significant number of disabled children live in housing which severely restricts their social development, their education and their life chances. Their parents suffer permanent back injuries, acute stress and unemployment, yet the disabled facilities grant—the DFG—the mandatory adaptations grant, which is supposed to meet this housing need, is excessively protracted, bureaucratic

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and largely ineffective. Typically, it takes at least 18 months before agreement is reached that a grant will be allowed.
The means test for the DFG is based only on income. It fails to take any account of real housing costs or the extra costs of bringing up a disabled child. This leads to shameful situations such as that of a family in South Wales whose child is tetraplegic with 100 per cent care needs. At the initial assessment: it was calculated that the family would need to contribute £3,000 towards the adaptation costs out of the husband's £17,500 salary. However, during the 18 months while the DFG was being processed, the mother went back to work for just six hours a week in a local disabled children's centre. As a result, the family's final contribution went up to £9,000, making it impossible for them to go ahead.
As the recent research by the Joseph Rowntree Foundation has shown, a third of the families who applied for DFG had been assessed as needing to make a financial contribution and a third of those families had not had the adaptations carried out because they could not afford the contribution. Only a minority of families had received help from statutory agencies in addressing their housing needs. Will the Minister say what plans there arc to review the disabled facilities grant system so that it can properly meet the needs of disabled children and their families?
8.36 p.m.
Lord Addington: My Lords, I thank the noble Baroness for bringing this debate to the House. I feel slightly humbled by those who have spoken. Their remarks make one consider certain aspects of disability, which, if one comes from outside the issue, one can only start to understand with others' help. Also, I have just become a father and one of the most frightening of the many descriptions that I have heard of the carer's job is of their having to look after an adult in the way that they would have to look after a baby. It is one thing getting grumpy at having to lug a 20-pound child around the house, but an adult or someone who is close to being an adult is a different matter. The problems, the stress and the wear and tear that that could cause are frightening.
The Government's record on helping those with disabilities and children is okay—I give it a pass mark—but they should be doing slightly better. They have increased benefits in certain areas and they have made good progress in certain others. However, there is one huge hole in the middle of their provision—the low take-up of benefits. I have received briefing that suggests that—give or take a few per cent—half of the people who should be claiming DLA are not.
There is little point in the Government allocating resources—I do not know whether they have allocated enough resources for everybody who is entitled to claim. but presumably they would meet the need if it arose —if we do not get people actually to claim the benefits. The overall cost to society of the knock-on effects of keeping people in poverty, such as the breakdown of parents who take on the long-term care
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of these children, has been pointed out by many who have spoken in this debate already. It could be catastrophic for the Government unless we manage to get benefits through to them. Unless we can find a better way forward, there will be a crunch in the near future. Perhaps I am being alarmist, but if there is not a crunch there will be long-term steady grinding and creaking.
We must do something more. The noble Lord, Lord Chan, pointed out the problems of putting things in the right language for those who are trying to claim. That shows just how difficult the situation is. Those who work in the field of disability always come to one conclusion: that those who are going to be disabled, particularly as children, should choose their parents carefully. If they happen to be the child of an accountant and a lawyer, they will get their benefits and the necessary support in the education system and everywhere else. If, however, their parents happen to have literacy problems or problems with the language of their adopted country, they will not.
The Government have one beacon of hope in this field—the one-stop-shop programme, and the interview arrangement. The pilots of those projects have started, but how far have we got? The arrangements did not deal with the whole panoply of benefits. I have for a long time felt that although we can make the system simpler, it will never be very simple. We must integrate all such benefits. Are the Government considering extending the interview arrangement across the entire range of benefits, and will they consider integration with social services and care assistance? The links between those areas are so obvious that they need no explanation, and such integration must be considered. If that is done, the Government should be able to give a definitive answer about how good their system of benefits is. Until that is done, we do not know how good that system is.
I turn to a question that I have repeatedly asked the Government over a long period. We accept that pensioners across the board receive the winter fuel payment, but why not people with no mobility capability? The fact that they do not is absurd. An extra fuel payment might be in order for half of the children mentioned in the briefings examples that were provided for our debate. Someone who is incontinent will need increased washing facilities. I return to the example of a new baby. One discovers when one has a new child—I am probably the 40 millionth person in the country to discover this—that the washing machine is never off. If the clothes are bigger and washed more frequently, costs will be higher. It is absurd that we do not deal with such problems. The Minister may say that certain other benefits are supposed to cover those costs, but they have never been properly factored in. The case with regard to heating costs is utterly unanswerable.
I could go on for much longer but time is against me. Unless the Government give a firm commitment to ensure that everyone who is entitled to benefits receives them, they are failing not only the people concerned but also themselves and their policymakers.
8.42 p.m.
Lord Astor of Hever: My Lords, I am pleased to have the opportunity to contribute to this important debate and I, too, congratulate the noble Baroness, Lady Massey, on introducing it and on attracting so many speakers. I also congratulate Barnardo's on its informative and detailed report. I know that many people were involved in its formulation and research, such as Contact A Family, and I pay tribute to the efforts of all those involved. I also congratulate the noble Lord, Lord Addington, on becoming a father; that is a very important milestone.
The Government made the eradication of child poverty one of their principal long-term goals. In 1999, the Prime Minister pledged to end child poverty within a generation. "Our historic aim", he said,
"will be for ours to be the first generation to end child poverty".
When Labour took power, more than 4 million UK children lived in officially "poor" households. The Government promised to cut that figure by more than a million in their first term. In the run up to the previous general election, the Chancellor repeatedly said that Labour had rescued 1.2 million children from poverty. However, household income figures published by the Office for National Statistics in April last year undermined the Government's claim. Those figures showed that, at best, half a million children had left poverty, on Labour's preferred definition, meaning that the poverty rate was roughly where it had been in 1994–95.
I am sure that the noble Lord, Lord Best, will be aware of the annual poverty report by the Joseph Rowntree Foundation, Monitoring poverty and social exclusion 2002. That revealed that the number of children lifted out of poverty since 1997 was around half the number claimed by Ministers. Therefore, despite substantial increases in expenditure on benefits, the Government are still a long way from hitting their own poverty targets. That is particularly the case in regard to families with disabled children. As Roger Singleton, the chief executive of Barnardo's, wrote in the foreword to the report:
"there is little evidence from the case studies in this report that current initiatives are improving the lives of disabled children significantly".
Can the Minister say what measures the Government have to address some of the problems highlighted in the Barnardo's report for disabled children and their families? In addition, can she also explain what role the new children's trusts will have in providing support and assistance to disabled children and their families?
The noble Baroness, Lady Howarth, rightly pointed out that children are living longer thanks to medical advances. They are surviving premature birth in far greater numbers although many of them develop mild and more severe disabilities as they grow. While that is positive from a medical perspective, it is a life sentence for the worn out and emotionally wrecked families of the children. The noble Baroness, Lady Masham, pointed out the many struggles that parents of disabled children face in obtaining vitally needed services such as equipment, special food and so on.
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The noble Baroness, Lady Massey, mentioned the cost involved in caring for a child with a disability. The parent caring for a disabled child is less likely to be employed. If a parent works, he or she is likely to receive low pay. Families caring for a disabled child are less likely to own their home and there is a higher incidence of family breakdown. Such families are more likely to suffer from ill health. Statistics show that raising a child costs on average £7,500 in 1997 but raising a disabled child in that year costs £125,000 on average.
As Barnardo's rightly points out,
"Most poor families do not have a disabled child; but … many families with a disabled child do live in poverty".
I hope that the Government take heed of the report and will endeavour to address some of the alarming concerns that it has revealed.
8.47 p.m.
Baroness Andrews: My Lords, I am extremely grateful to my noble friend Lady Massey of Darwen for giving us the opportunity to explore an issue that is dear to the hearts of so many noble Lords. I also thank Barnardo's for a report that is so much in its historic tradition of champion of poor children and of children who are disadvantaged in many different ways. The Government will read the report very closely. We are grateful that we are recognised in the report as a good government for children and a government who have achieved much in raising living standards for families in poverty and coping with disability. Those two matters are closely linked.
When I read the report I was aware, as has been stated, of the incredibly heavy burden that is borne by individual families and of the grace with which they bear that burden of care. I pay tribute to that. I was delighted that everyone had three extra minutes in which to speak as I would have been worried if the excellent challenges to the Government had been sacrificed due to time constraints. I shall take a little longer to reply. I shall not be able to answer all the detailed questions that have been raised, but I shall have pleasure in writing to noble Lords, and in circulating correspondence, if I cannot address all the matters.
I would like to show the extent to which the Government are giving priority to disabled children. I hope to reassure the noble Baroness, Lady Wilkins, that they are at the heart of policies for ending poverty, but also at the heart of children's policies and health policies as well.
Tackling child poverty as a whole is extremely complex: it is multi-dimensional. It is about extra investment in healthcare and education as much as in raising benefit. It is about improvements in the system which enable young people to transfer into adulthood as much as it is about securing early intervention.
I am extremely pleased that the noble Baroness, Lady Massey of Darwen, focused on health and social services because they are so crucial. We have the greatest pleasure as a government in seeing this debate as very much part of the continuing dialogue between

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us about the rights and needs of disabled children. We warmly welcome the opportunity for further debate and discussion suggested by the noble Baroness. As part of that discussion, we hope to involve the voluntary sector as we always try to do. They are extremely important partners in everything we do in informing ourselves of the needs of the community.
The areas of concern that have been mentioned include raising national standards of care and provision for families and promoting better coordination on the ground. Many examples have been given of how assessment is slow and co-ordination is not happening, and of the need to make greater progress. Another concern is amplifying the voice of disabled children and their families in that process. The first two aspects complement each other because we know that one of' the great failures in the delivery of services to disabled children and their families has been the fragmentation of services, the lack of coordination and sometimes competition between services.
What we heard about the Climbié report in this House brought home to us exactly what is meant by the failure to join services together. It is not a point for debate: we all know that we need a more integrated system, not least for the very severely disabled children about whom the noble Baroness, Lady Howarth of Breckland, spoke.
We aim to raise the standard of children's services not by setting new national targets, as the Barnardo's report suggests, although we understand that, but through a framework of new national standards which will require joint working across the NHS, the social services and education. We do not believe that simply setting targets will automatically achieve better outcomes, but that is what we want.
We want services that overcome variations in local delivery. We want services which are sensitive to the individual needs of families and children and which allow for a local say. That is why we are devolving power in the NHS down to the primary care trusts and other front line services. That is why we have vested so much work, effort and hope in the new National Service Framework for Children. There is a specific element in that dealing with disabled children.
Next month we shall be publishing the emerging findings and there will be information about disabled children. We shall also be producing something about acute services for children at the same time.
The noble Lord, Lord Chan, was concerned about the needs of ethnic minority children. He was a most eloquent champion of those needs. The NSF pays particular attention to the needs of such children. To take up the point made by the noble Baroness, Lady Howarth, an external working group is considering the needs of severely disabled children as well. We hope very much that within this broad framework there will be detailed sensitivity to children's specific needs and the recommendations based on them.
I do not expect that the delayed discharge Bill will distract from the priority we give to children. I hope that I can give that assurance. Through the NSF we are
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looking for a coherent and integrated approach to services for disabled children, which will progress them from the earliest intervention when they are identified by the specialist as having extra needs, right through to social services to support them, then through to their education and beyond.
It is a major step forward in meeting the problems identified by the Barnardo's report and by noble Lords. It goes along with a range of other initiatives which are already in place. The noble Baroness, Lady Wilkins, referred to the Quality Protects project. The noble Baroness, Lady Howe, spoke about the need for more fun, more clubs and more play.
Quality Protects aims to transform children's services. We have earmarked £60 million for disabled children. We have also earmarked the importance of short breaks and respite care. The information coming back to us through the Management Action Plans suggests that Quality Protects is delivering more of these essential services.
Noble Lords who know me will expect me to say how pleased I would be to see more play clubs and activities for children. It is true: they are vital. Too often disabled children are neglected and left out, which is why I am delighted to hear the news about the New Opportunities Fund. I hope that we will hear even more.
Local authorities are also drawing on different partnerships including Sure Start, the Children's Fund and Connexions. Each has given disabled children priority. They are coming together, and I hope, with Quality Protects, to identify more children. These are new, developing programmes. We hope that the extended Sure Start, for example, will make a difference.
We have increased resources. We have planned historic increases in personal and social services from April this year. In addition, there will be £106 million for children next year; a 23 per cent increase. I want to emphasise that co-operation between health and social services is not an optional extra. The Health Act 1999 introduced a duty of partnership. It removed financial and legal barriers. Using pooled budgets, we are beginning to see local authorities working together more effectively.
My noble friend Lady Massey referred to the new Early Support Pilot Programmes. They will test some of the ways in which we can put principles into action to improve services for the very young disabled. It is too early to draw conclusions, but they will be closely monitored, not least in the way in which they aim to provide access to information for families.
Several noble Lords referred to the new specialist children's trusts. That may have been what the noble Lord, Lord Addington, meant when he referred to "one-stop shops". They are coming together with all relevant services to plan, commission, finance and, where it makes sense, deliver children's services.
The noble Lord. Lord Astor of Hever, also raised that point. We will explore a range of models in different parts of the country during a pilot scheme later this year. The range of services may include

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services for children with disabilities and special needs. I will pass on to the Minister the remarks of the noble Baroness, Lady Wilkins, about the need for such provision. The Green Paper on children at risk will identify radical options to improve services and will look hard at how to improve the multi-agency approach.
An argument has been put forward about the need to improve information in general. We are doing our best to listen to families and what they say they need. In the national service framework we have been referring to external working groups. We are delighted that the group focusing on disabled children is led by Francine Bates, the chief executive of the charity Contact a Family. Through her we are listening to the voices of families and children.
The diversity of those voices and needs argues against a national information campaign. But we see the need to be proactive in making the system as transparent and helpful as possible. We are providing Contact a Family with £0.5 million per year for three years to run the national information centre, which will help.
We are doing something about the problem alluded to with disability living allowance. There are 400,000 claimants. We are conscious that we need to do more to make DLA more accessible, as the noble Lord, Lord Rix, said. We are trialling new disability allowance forms with the help of disabled community representatives. We are investing in new technology, which we believe will help to make systems more accessible. But it is not only national government, local government also has a responsibility. We welcome local government's first stage effort to raise local awareness of tax and benefit systems and entitlements for families with children.
We are delighted that the disabled people's representatives are helping with our programme to modernise services. Their voice is extremely important.
My noble friend Lady Massey raised the issue of the welfare food scheme. We are still in the process of assessing responses to the scheme. It will be recast as Healthy Start. The noble Baroness will understand that until we have assessed all responses, including that of the Disability Alliance, for which we are grateful, we cannot make decisions on detail.
My noble friend Lady Pitkeathley asked about hospital transport. The Social Exclusion Unit is reviewing the linkage between social exclusion and transport and is considering the issue of those visiting hospital as well as those attending. The unit will report in the spring. We hope that we shall have some positive news for her on that matter.
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The noble Lord, Lord Rix, asked about Valuing People. I can tell him that the target of 6,000 additional severely disabled children receiving co-ordinated care packages was met. I hope that he will take some pleasure in that.
I shall not have time to address the important issues of housing in any detail, but I take seriously the points made about the delays and means testing. The department will listen to what noble Lords have said on that issue.
We could have a longer debate on the question of financial support and raising incomes for disabled people within the context of poverty. We have looked into the question of minimum income standards. There is no simple answer to the question of which level of income is adequate for all family types. Research throws up different responses depending on what one is looking for. But the Measuring Child Poverty consultation has generated a positive debate. Again, Barnardo's has helped. We shall be publishing preliminary conclusions during the spring. But there is no doubt that the extra costs of disabled children are well documented. The washing machine is on six times a day, food has to be blended and everyone has to help bear the physical and emotional costs of caring for the child within the family. It is clear that poverty makes coping extremely difficult.
That is why in April 2001 we increased the disabled child premium in income related benefits by £7.40 per week. Now 85,000 children get a benefit that is worth more than £35 per week. So we are spending £200 million in 2002–03 on benefits for severely disabled children. If noble Lords wish, I shall write to them and set out the range of benefits which we believe makes a difference to these children and their families.
The new child tax credit, by bringing together all the benefits for children, will make it easier and simpler for working and non-working families to access benefits.
Finally, noble Lords have raised the issue of work and childcare. We recognise the difficulty that parents with disabled children have in accessing formal childcare because often they cannot get out of the house. From April this year the new working family's tax credits will enable such parents to receive help with childcare in their own homes if they are using an approved home child carer. We very much hope that that will make a difference.
I am very conscious that I have run out of time. Along with other noble Lords, I hope that this debate will give the families who are the subject of the report some hope not only from the fact that we have had in this House an extremely well-informed and passionate debate on the predicament of disabled families and their children, but that they will take courage from the fact that we see them very much at the heart of what we are doing in terms of our social policies for children. We hope that we shall have their support to continue doing that.
House adjourned at five minutes past nine o'clock.