Lords Sitting of 23 October 2003

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Sheffield.

Human Rights
The Chairman of Committees (Lord Brabazon of Tara): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the quorum of the Select Committee appointed to join with the committee of the Commons as the Joint Committee on Human Rights be two.— (The Chairman of Committees.)
On Question, Motion agreed to.

Gambling
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the order of the House of 9th September appointing a Select Committee to join with a committee of the Commons to consider and report on any clauses of a draft Gambling Bill presented to both Houses by a Minister of the Crown be amended by leaving out the words "within the United Kingdom".—(The Chairman of Committees.)
On Question, Motion agreed to.

Criminal Justice Bill
Baroness Farrington of Ribbleton: My Lords, on behalf of my noble friend Lady Scotland, I beg to move the Motion standing in her name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order—

Clauses 1 to 11,

Schedule 1,

Clauses 12 to 26,

Schedule 2,

Clauses 27 to 39,

Schedule 3,

Clauses 40 to 60,

Schedule 4,

Clauses 61 to 97,

Schedule 5,

Clauses 98 to 118,

Schedule 6,

Clauses 119 to 161,

Schedule 7,

Clause 162,

Schedule 8,

Clauses 163 to 169,

Schedule 9,

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Clause 170,

Schedule 10,

Clauses 171 to 175,

Schedule 11,

Clause 176,

Schedule 12,

Clauses 177 to 201,

Schedule 13,

Clauses 202 to 206,

Schedule 14,

Clauses 207 to 211,

Schedules 15 and 16,

Clause 212,

Schedule 17,

Clauses 213 to 221,

Schedule 18,

Clauses 222 to 247,

Schedule 19,

Clauses 248 to 254,

Schedule 20,

Clauses 255 to 256,

Schedule 21,

Clause 257,

Schedule 22,

Clause 258,

Schedules 23 and 24,

Clauses 259 to 261,

Schedule 25,

Clause 262,

Schedule 26,

Clauses 263 to 276,

Schedule 27,

Clauses 277 to 280,

Schedule 28,

Clauses 281 to 298,

Schedule 29,

Clauses 299 to 301,

Schedule 30,

Clauses 302 to 305,

Schedule 31,

Clauses 306 and 307,

Schedule 32,

Clause 308,

Schedule 33,

Clause 309,

Schedule 34,

Clauses 310 to 314.—(Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.

Female Genital Mutilation Bill
Read a third time, and passed.

Health and Social Care (Community Health and Standards) Bill
11.8 a.m.
The Parliamentary Under-Secretarty of State, Department of Health (Lord Warner): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Warner.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 171 [General medical services contracts]:
Earl Howe Earl Howe moved Amendment No. 456:
Page 90. line 13, leave out "suspending or terminating" and insert "as to the circumstances in which a Primary Care Trust or Local Health Board may agree with a contractor that"
The noble Lord said: In moving Amendment No. 456, I shall also speak to Amendment No. 457. Subsection (4)(b) of proposed new Section 28U provides for regulations to be made that would suspend or terminate a requirement in the GMS contract to provide services of a specified type. I have no difficulty with what I interpret to be the purpose of this provision; my only difficulty is with the drafting. It will surely not be possible for regulations on their own to achieve the intended purpose because, in reality, if a PCT or LHB wished to suspend or terminate an additional service, I should have thought that it would almost always be practice-specific. Surely, regulations would not want to provide for a blanket suspension or termination of a service, nor legally could they provide for a suspension or termination of that service by particular doctors. Will the Minister shed some light on that matter and reassure the Committee that the drafting is robust? I beg to move.
Lord Warner: I will try to explain the purpose behind the provision, and in the course of that explanation I hope to satisfy the noble Earl.
Proposed new Section 28U(4)(b) allows for regulations to make provision about the suspension or termination of a duty under the new GMS contract to provide services of the prescribed nature. It allows for GMS practices to be able to opt out of providing out-of-hours services and those services designated as additional services in the agreement between the BMA and NHS Confederation. The regulations will define those particular services and detail the procedures through which the option to opt out can be affected.
We believe that the wording does deal with the practice issue. Certainly, the agreement on the new GMS contract allows practices to be able to opt out of providing out-of-hours and additional services with or without the agreement of the PCT, provided that they follow the procedures that will be set out in the regulations. Only in exceptional circumstances—and provided that the PCC has been able to demonstrate to an appeal body that it is essential for the practice to continue to provide a particular service in order to guarantee patients' rights—will the PCT be able to prevent such opt-outs.
The effect of this amendment would be to undermine the opt-out process because it would give the PCT an absolute veto over a practice's right to opt
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out of a service. It cuts across one of the most important parts of the agreement with the profession. Being able to opt out of providing services is a fundamental plank of that agreement that builds on the existing flexibility. There is not a dramatic change here in terms of the areas of services covered, but they are expressed in terms of practices rather than individual doctors. Under the agreement, the practices need to be able to vary their workload according to their capacity to provide those services and, of course, to the income to which they aspire.
Maternity, family planning, child health surveillance and minor surgery have always been optional services for practices. Under the current arrangements, individual GPs can opt out in full or part when they do not have the necessary professional expertise or facilities, or, in the case of family planning, they cannot provide the services for reasons of conscience. Not all individual GPs currently provide those services. The new agreement provides for vaccinations, immunisations and cervical screening to be added to the list. However, those services are also voluntary because practices and GPs could currently opt out of providing them. Again, it is up to the practices. If they opt out of providing services, their income will be reduced.
I could develop those arguments further but I have sought to explain the purpose behind the clause and the effect that the amendment would have on it. We do not think that the drafting is deficient, but I am happy to arrange for the noble Earl, if he wishes, to talk to the lawyers about that outside the Committee.
Earl Howe: I am grateful to the Minister. He will realise that I was, essentially, asking a simple question through a probing amendment: how can regulations operate at the level of individual practices? I think that I understand what the Minister told me about opt-outs. I will read carefully what he said. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 457 and 457A not moved.]
The Chairman of Committees: If Amendment No. 457B is agreed to, I cannot then call Amendments Nos. 458 and 459.
Lord Warner Lord Warner moved Amendment No. 457B:
Page 90, leave out lines 18 to 26.
On Question, amendment agreed to.
[Amendments Nos. 458 and 459 not moved.]
Clause 171, as amended, agreed to.
Clause 172 agreed to.
Clause 173 [Arrangements under section 28C of the 1977 Act]:
Lord Warner Lord Warner moved Amendments Nos. 459A to 459E:
Page 92, line 4, leave out "or section 17C arrangements" and insert ", section 17C arrangements or Article 15B arrangements; or

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(iii) under section 19 or 25 of the 1978 Act or Article 56 or 61 of the Health and Personal Social Services (Northern Ireland) Order 1972 (1972 No. 1256 (N.I.14));"
Page 92, line 24, leave out "an individual" and insert "a person"
Page 92, leave out lines 27 to 37 and insert—
"() an individual who is providing services as specified in subsection (l)(bc)(iii) above".
Page 92, line 38, leave out from ""section 28C employee"" to end of line 39 and insert "for "an individual providing" substitute "a person providing or performing""
Page 93, line 20, at end insert—
"() In that section, after subsection (3C) (as inserted by subsection (9) above) insert—
"(3D) The regulations may also include provision for the resolution of disputes as to the terms of any proposed section 28C arrangements, and in particular may make provision—

(a) for the referral of the terms of the proposed arrangements to the Secretary of State or National Assembly for Wales; and

(b) for the Secretary of State, or Assembly, or a person appointed by him or it, to determine the terms on which the arrangements may be entered into.""

On Question, amendments agreed to.
Clause 173, as amended, agreed to.
Clause 174 agreed to.
11.15a.m.
Clause 175 [Persons performing primary medical and dental services]:
Earl Howe Earl Howe moved Amendment No. 460:
Page 94, leave out lines 16 to 18.
The noble Earl said: In moving Amendment No. 460, I shall speak also to Amendments Nos. 461 and 462. New Section 28W relates to primary medical and dental services and the lists that restrict and define the practitioners eligible to provide those services. The amendments are probing amendments, and I should be glad if the Minister could comment on them.
Subsection (4)(e) of the new section refers to the declaration of interests, specifically financial interests. It would be helpful to know what interests other than financial a person will have to declare, to whom he will have to declare them and whether such declarations will be published. Will a de minimis provision apply? My fear is that we will go overboard in asking professional people to declare every conceivable interest, however insignificant, and that the process will not only become cumbersome but will cause real discontent among doctors and dentists. We do not need that.
I should be grateful for the Minister's confirmation that subsection (4)(g) is intended to cover the possibility of, for example, fraud or gross malpractice by a practitioner, in a case in which it might be considered inappropriate for that person to remove himself or be removed from the list until such concerns had been resolved one way or the other. I cannot see any justification in other circumstances for keeping someone on a list against his will, but, perhaps, the Minister can clarify that.
Finally, the purpose of subsections (5) and (6) is not clear to me. Subsection (6)(a), in particular, is a complete mystery. What sort of conditions might be imposed to meet the requirements of subsection (6)? Should not those requirements be in the contract, rather than the list of practitioners? I beg to move.
Lord Warner: Many of the provisions continue existing practices. I turn first to Amendment No. 460. It is crucial that, once a practitioner has been admitted to a PCTs list, that practitioner complies with certain requirements. The requirements include notifying the PCT about criminal investigations and charges or other investigations. That continues existing practice.
With regard to the declaration of gifts and financial interests, there must be consistent rules throughout primary care. The provisions simply place in their proper context the existing regulation-making powers. There is nothing new about that. The powers were previously inserted into Sections 29 and 36 of the National Health Service Act 1977 by Section 23 of the Health and Social Care Act 2001. The provisions will ensure that gifts and financial interests are dealt with openly and honestly.
We recognise the special relationship that exists between practitioners and their patients and realise that patients will occasionally want to provide tokens of gratitude. We do not want to make practitioners refuse gifts, but we need transparent procedures to prevent abuse. If we did not have that provision, we would have inconsistency between some primary care practitioners, on the one hand, and other NHS employees, such as hospital clinicians, on the other. For example, hospital clinicians are required to declare gifts.
Common sense about the scale of the gifts must prevail. There is a world of difference between a box of chocolates and a foreign holiday. The onus is on the practitioner to recognise sensibly which gifts should be declared. I hope that that clarifies matters for the noble Earl.
I turn to Amendment No. 461. Doctors and dentists whose conduct or performance are under investigation by PCTs are prevented withdrawing from the list until the PCT has decided the matter. That continues the present arrangements.
Amendment No. 462 would have the effect that a doctor or dentist who was under investigation by the PCT or had been suspended or given a notice of intention to remove him would be able to avoid removal from a list simply by withdrawing from that list. That, in turn, would enable the doctor to apply to other PCTs, without having to declare what had happened. That is continuing present practices in that area.
In broad terms, the noble Earl is right. We are largely talking about—certainly from my own experience when I chaired a family health service authority—serious malpractice or financial irregularities. I am struggling to think on my feet of other circumstances that I have experienced in this area. I will check and if there are others I shall write to the noble Earl.

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Clause 175 is slightly delphically worded in the sense that we are continuing a longstanding practice; namely, there are particular aspects of the way in which, for example, a doctor conducts himself, but there is scope for remedial action. I am choosing my words with care. Occasionally, a doctor may go through a bad stage in his life—for example, he may have a little problem with alcohol or whatever—but it is a temporary phenomenon. Providing there is a clear plan to tackle the problem, and it is not so serious that services to patients are adversely affected, common sense prevails. Rather than lose a good doctor, conditions are imposed on the way in which he or she practises. We are talking about, and the provision in the legislation is dealing with, that kind of circumstance. I hope that that gives some reassurance to the noble Earl.
Earl Howe: Indeed, it does. I am grateful to the Minister for that, as I am for the explanation he gave with regard to my other amendments. From his remarks, I am not entirely clear, as regards the declaration of interests, to whom a doctor must declare his interests, how, in practice, that will operate and whether such declarations will be published as public knowledge. If the noble Lord can enlighten me further, perhaps he will write in due course. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 461 not moved.]
Lord Warner Lord Warner moved Amendment No. 461 A:
Page 94, line 23. leave out '"by a Primary Care Trust or Local Health Board"
On Question, amendment agreed to.
[Amendment No. 462 not moved.]
Clause 175, as amended, agreed to.
Clauses 176 and 177 agreed to.
Clause 178 [Special Health Authorities]:
On Question, Whether Clause 178 shall stand part of the Bill?
Earl Howe: What is the intention that underlies Clause 178, which makes provision for a strategic health authority to carry out the functions of a PCT in respect of dental services? The Explanatory Notes are silent on this matter. My understanding has always been that a strategic health authority would never be a commissioner of services of any description and that its role is entirely supervisory. It would be helpful if the Minister could explain what kinds of circumstances might arise which would trigger the making of regulations under the clause.
Amendment No. 476 proposes that the abolition of the Dental Practice Board should not take place until the matter has been debated in both Houses of Parliament under the affirmative resolution procedure. It appears that the Dental Practice Board,
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when abolished, is to be replaced by a special health authority, but there is little in the Explanatory Notes that sheds light on how it will operate.
The reason for asking for the affirmative resolution procedure is simply that when a major reorganisation of the NHS takes place, Parliament needs the guarantee of being able to scrutinise the detail of what is proposed. Special health authorities are a convenient device which enable the Government to rewrite how the NHS is run. They can be created with relative ease from an administrative standpoint, yet their functions can be complex and of the highest significance. I hope that the Minister will look constructively on the proposal, notwithstanding any resistance her officials may suggest she should offer.
Baroness Andrews: I am completely impervious to resistance from officials. I do not think that I need to say that. There is great cynicism on Opposition Benches about headlines that say "Reject" and "Resist". I can assure noble Lords that we are at one with our officials about these matters.
The noble Earl asked: what is the point of the clause? Perhaps I could give him the brief explanation, which is purely the legal explanation and then answer his questions in relation to functions. I hope that we can come to agreement on that. Currently, Section 16B of the 1977 Act provides for regulations to provide for prescribed functions of PCTs to be exercised by a special health authority. The provision is needed to enable the rights and liabilities of PCTs—for example, financial rights and liabilities—to be transferred by order to the new special health authority established as a successor body to the DPB. That also enables us to allow for transferred functions to be transferred back by order if and when necessary.
For example, the general dental services contract may provide for payments to dentists under such a contract to be made by the special health authority rather than a PCT. The clause would allow an order to provide for the special health authority to take on the PCTs' contractual responsibility for the payments it makes. Subsection (2) makes similar provisions in relation to the local health boards in Wales.
Perhaps I may describe in more accessible language what we are expecting; that is, why we need a special health authority rather than the Dental Practice Board and what we want it to do. At the moment, the DPB is responsible for the payment or remuneration of general dental practitioners who provide general and personal dental services under the pilot scheme. It also approves higher costs and proposed treatments and fees in relation to certain services that are not specifically provided in the statement of dental remuneration. Therefore, it approves associated charges. Recently, it has also been directed, under Section 122A of the 1977 Act, to recover charges and other payments.
It is established under Section 37 of the 1977 Act, and the legislation also states, that the chair must be a dentist, as must be the majority of its members. At the time that the legislation was written, that made a great

1733
deal of sense: the board itself was making clinical decisions about proposed treatment. The board no longer concerns itself with clinical issues. Indeed, it has dentists on the staff who provide the clinical advice. Therefore, the board no longer needs that in-built dental majority.
The problem with the current structure is that it is inflexible. It cannot take on the additional functions that do not relate to general or personal dental services because its functions are set down in primary legislation. Therefore, it is difficult to match the capacity of the organisation to changing functions. It does not make best use of its staff. A more modern and flexible foundation for the DPB is long overdue. This is the opportunity for that.
Clause 177 provides for the abolition of the PCB and for the special health authorities to be established under Section 11 of the 1977 Act by the Secretary of State and the Assembly. It is a cross-border SHA and will undertake functions both in relation to England and Wales. As an SHA, it is capable of having functions transferred to it by directions.
The DPB has an enviable reputation of paying dentists correctly and on time. The profession draws confidence from that; we aim to maintain that confidence during the transitional period. We are discussing how best to achieve that with the relevant stakeholders. We also know that it plays an important role in verification of patient charges. Even under local contracting it will be important to ensure that the correct charge is being calculated and collected. We spoke a little about that issue in the early hours of Tuesday morning.
The continuing role of the DPB and the special health authority will maintain that important national perspective. Subject to consultation, the assets, liabilities and staff would be transferred, under Section 11 powers, to the new SHA. In addition to the payment function, the SHA will undertake monitoring and quality assurance—an area we want to see developed.
In terms of the transfer of functions, it may help Members of the Committee if I outline the timetable that we envisage. The DPB will continue to pay dentists on behalf of all PCTs from April 2005 at least through the transitional period, which is likely to run to 2008. However, we shall use the transitional provisions set out in the Bill to enable it to carry out functions in relation to the new contract. We anticipate that the special health authority will be established during 2005 and that it will gradually take on the functions of the DPB until the point at which all those functions have been transferred, when it will be abolished.
We have not yet set a date in 2005 for that, so there will be an element of overlap while the transition is completed. Obviously, funds for primary dental services will be allocated to PCTs in the usual manner. The new SHA will pay out moneys on behalf of PCTs, much as the DPB is doing now. That is how we envisage the timetable for the transfer process.
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I turn now to Amendment No. 476, which seeks to make the commencement of Section 177 covering the abolition of the DPB the subject of debate in both Houses under the affirmative procedure. As I have said, for operational reasons the SHA will need to be established before the DPB is abolished. 1 suggest, therefore, that the amendment would not be appropriate since a debate on the regulations under the affirmative procedure at the point of the imminent abolition of the body would be less appropriate than the opportunity we have now to consider the implications. A debate at the point at which the regulations are laid would take place rather after the fact.
For that reason, and given the explanations I have put before the Committee, I hope that the noble Earl will feel able to withdraw his opposition to Clause 178 standing part of the Bill.
11.30 a.m.
Earl Howe: The noble Baroness has made a very beguiling point and I am tempted to succumb to it. I apologise to the Committee for having inadvertently misled it by referring to a strategic health authority rather than a special health authority. I am grateful to the Minister for the useful explanatory background to the process.
However, I still feel that, given the current position of the dental majority moving to a membership and a remit that is not yet clear, there is an important role for Parliament to examine the new arrangements. Perhaps the noble Baroness is right to say that it would not be appropriate to do that at the point at which the old arrangements are abolished. However, I shall have to reflect on the matter and. if necessary, return to it at a later stage.
Clause 178 agreed to.
Clause 179 [Charges for dental services]:
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 462A:
Page 96, leave out line 13 and insert—
"(b) for the manner in which patients should be informed about charges;"
The noble Lord said: I shall be very brief on this subject. Amendment No. 462A is similar in nature to Amendment No. 441A which we debated during the small hours the other day. I think that the Minister accused me of calling him a creature of the night; I would not dream of saying such a thing, but I daresay we could all be so accused. The debate this morning feels rather like the lull after the tempest, which is a far preferable way of considering these issues.
Put simply, it is important to ensure that patients are informed about dental charges as a matter of course. There should be transparency in this and in a number of other related aspects so that they know what their treatment is going to cost. The Minister confirmed that and gave us certain assurances when we debated Amendment No. 441A. I beg to move.
Lord Skelmersdale: Our Amendment No. 464 has been grouped with this amendment. However, before I speak to it, I wish to point out that, in my view, the

1735
proposal to leave out line 13—that is, the provision for calculating the amount of any charge—and replacing it with,
"the manner in which patients should be informed about charges",
is a little strange. I much prefer the second amendment tabled by the noble Lord, Lord Clement-Jones, which would retain the original wording and add his additional form of words.
I turn now to Amendment No. 464. The Explanatory Notes on clauses explain that under Section 79A of the 1977 Act, the arrangements under the existing regulations provide for dental charges to be calculated on an item of service basis, which is what I suspect the new regulations will do as well. However, the notes go on to say:
"The existing system may act as an incentive for the dental practitioner to maximise the items of treatment provided to a patient to maintain income".
That is quite a charge to make, and to say the least it is a little vague. While it does not say that such practices are going on, it suggests that they could. Clause 179 therefore inserts a new section and schedule into the 1977 Act. My problem is this: how will such possible overcharging by dentists be avoided under the new scheme?
A further point occurred to me while looking at the new arrangements. First, presumably new Schedule 12ZA is to be amended by the regulations to be laid under Clause 179(1). I say "presumably" because it is certainly not made clear in the drafting of the clause. Secondly, as I have said already, if I am right and it is intended to have regulations at some point in the future to amend exemptions, then it is quite unsatisfactory to do so by negative statutory instrument. It should be done using the affirmative procedure, a point that I made over and over again at some time between midnight and half-past two on Tuesday morning.
Baroness Andrews: We all had something of the night about us on Tuesday morning, although I thought that we were heroic in our efforts. However, it is nicer to debate these matters when one is feeling relatively more awake.
Let me put the noble Lord's mind at rest on the various questions he raised. Under the current law, Section 79A of the 1977 Act provides for the charges paid by a patient for dental treatment under general dental services to be based on the remuneration paid to the dentist. As the noble Lord pointed out, the present regulations provide for such charges to be calculated on an item of service basis.
The first problem with this system is that patients, dentists and representatives from the Audit Commission have all said that it is very unclear. Dental charges are difficult to understand and raise concerns about the potential cost of treatment, and blur the point at which treatment provided under the NHS moves across, as it were, into private treatment. According to a recent survey undertaken by the British Dental Health Foundation, some two-thirds of people
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are ignorant about NHS dental charges. We want first to clarify exactly what people are paying for, thus answering clearly the question: how much will NHS treatment cost when I go to the dentist?
In future, dental charges will continue to bear relation to the level of service provided, such as a charge per course of treatment or per visit, but they will not be limited to whether one has had scaling and polishing treatments, or those involving fillings and so forth. We are breaking the link between what the dentist charges per item and his remuneration. It will also be based on volume, quality of service and costs, which is much more sensible.
The noble Lord also asked how we know that the system has operated unsatisfactorily and that there has been a degree of over-treatment. Evidence provided by the BDA suggests that dentists themselves have described the system as a "treadmill": the more treatments they offer, the more they are paid, and thus a perverse incentive base is built into the process. That is why, for example, patients who do not require treatment reviews every six months are nevertheless called in, simply to be told that they are all right. There is consensus that the system needs to be changed.
The new system will avoid such overcharging because it is to be based on a more sensible and strategic framework of charging so that people are treated for what they need rather than what dentists provide. Further, the new arrangements will apply nationally. They are not intended to increase the level of charges, but to ensure greater clarity.
Within this process we shall follow the advice which will be generated by Harry Cayton, the director of Patient Experience and Public Involvement. The majority of people on that body are patient representatives who provide consumers with professional advice. They are considering the charging regime, as the Audit Commission recommended, and we are awaiting their findings, which we expect early next year.
The point about exemptions is very important. I stress that there will be no changes to the current exemptions and that it is not our intention to increase charges. Those two important matters need to be on the record.
Clause 179 replaces Sections 78A, 79 and 79A of the 1977 Act with one streamlined section, proposed new Section 79. Amendments Nos. 462A and 463 seek to make clear on the face of the Bill that regulations made under Section 79(1) may include arrangements under which patients are informed about dental charges. Like the noble Lord, Lord Skelmersdale, I am not entirely sure why the noble Lord, Lord Clement-Jones, seeks to remove the reference to the calculation of charges. It is extremely important—it goes to the heart of the provisions—and should remain in the Bill.
As I said in an earlier debate in relation to Amendments Nos. 439 and 441A, I can confirm our commitment to improving patient information. As I said then, we want that to be set out in national contractual requirements to ensure uniformity and to ensure that these issues can be properly and fully

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addressed within the regulation-making power under Section 280 rather than within the proposed new Section 79 regulation-making powers. I am unable to accept the amendments for that reason.
Amendment No. 464 seeks to make the regulation-making power for the recovery of charges for dental treatment subject to the affirmative procedure. The Delegated Powers and Regulatory Reform Committee made no recommendation in relation to this, but I understand the concerns that it is a large and wide regulation-making power. The kind of issues raised by the noble Lord are related to other issues in regard to the power itself. We shall look again at the provision to see how the regulations might be made subject to additional scrutiny.
Lord Skelmersdale: This is one of those occasions when, from the point of view of the noble Lord, Lord Clement-Jones, it is slightly unfortunate that these three amendments are grouped. Be that as it may, I was delighted to hear in the noble Baroness's long explanation that there is no intention—certainly at the moment—to make any changes to the exemptions. I am also delighted that the department and her noble colleague have decided to look again at the whole subject of regulation-making powers—which is what I understood her to say—from Part 3 onwards through the Bill. Is that what the noble Baroness said?
Baroness Andrews: I was referring specifically to the regulations governed by the clause.
Lord Skelmersdale: I may therefore have to retract on Part 3. But, certainly so far as concerns this clause, I am delighted with the noble Baroness's response.
Lord Clement-Jones: It gives me great pleasure to see the noble Lord, Lord Skelmersdale, in such jovial form in response to the Government's response, so to speak, compared to some of his contributions at an earlier hour.
Far be it from me to disagree with the Minister. I entirely agree with both her and the noble Lord, Lord Skelmersdale, in regard to line 13. I am delighted that her response to Amendment No. 462A is consistent with the Minister's response to Amendment No. 441A. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment Nos. 463 and 464 not moved.]
Clause 179 agreed to.
Clause 180 agreed to.
Schedule 11 [Part 4: minor and consequential amendments]:
11.45 a.m.
Lord Warner Lord Warner moved Amendments Nos. 464ZA to 464ZG:
Page 148. line 21, at end insert—
"() in paragraph (d), for "or a section 17C employee" substitute ", a section 17C employee or an Article 15B employee"
Page 148, line 22, at end insert—
"(2A) In subsection (2), after the definition of "the 1978 Act" insert—
""Article 15B arrangements" means arrangements for the provision of services made under Article 15B of the Health and Personal Social Services (Northern Ireland) Order 1972 (1972 No. 1256 (N.I. 14)):
"Article 15B employee" means an individual who, in connection with the provision of services in accordance with Article 15B arrangements, is employed by a person providing or performing those services"."
Page 148, line 25, at end insert—
"15A In section 28EE(2), for "personal" substitute "primary"."
Page 152, line 43, leave out "a list" and insert "all lists"
Page 152, line 44, leave out "such a list" and insert "a list under that section"
Page 154, line 15, leave out "28U" and insert "28TA"
Page 154, line 24, at end insert—
"38A (1) In Schedule 7A, paragraph 3 is amended as follows.
(2) In sub-paragraph (1)—
(a) after paragraph (f) insert—
"(fa) persons providing primary medical services or primary dental services under Part 1 of this Act;";
(b) in paragraph (g), omit the words from "or under" to "this Act".
(3) In sub-paragraph (2), for "(l)(g)" substitute "(1)(fa), (g)"."
On Question, amendments agreed to.
Schedule 11, as amended, agreed to.
Clause 181 [Replacement of Welfare Food Schemes: Great Britain]:
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 464A:
Page 98, line 36, after "more" insert "pilot"
The noble Lord said: I hasten to reassure the Minister that this is a probing amendment. I was quite amused to read the Minister's response when he stated that, as drafted, the amendment would condemn the scheme to being run as a pilot for evermore. I had a vision of the scheme being held in purgatory. I wondered whether officials had recently been reading Dante's Inferno. I was not entirely sure, but a nice image was conjured up.
There is a great deal of support for the Healthy Start scheme, for the principle of reforming the welfare food scheme and for the broad principle of widening the nutritional bases. However, the devil lies in the detail. A great number of organisations have an interest in the scheme—the National Childbirth Trust, the CPHVA, the Infant and Dietetic Food Association, the Royal College of Midwives, the Royal College of Nursing, the Maternity Alliance, the British Retail Consortium, the Royal College of Paediatrics and Child Health and so on. So it is not surprising that there are a number of differing views and the Government and COMA have tried to pull together some of the voices on this issue.
But it is not all about differences; there is a great measure of agreement on the scheme and on some of the difficulties it faces. It is this area that I wish to explore and to put forward the thesis that it is extremely important to test out the way in which the scheme will work in practice. Therefore, whether it is called a pilot or a partial roll-out—whatever the

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language used—it is very important to try out different ways of making the scheme work. It is not entirely clear how it will operate and whether or not mothers will receive the right balance of nutrition from the scheme.
I shall not deal with registration. The amendment of the noble Earl, Lord Howe—which we support—in the next group of amendments deals with that aspect, on which many of the organisations have a common position.
I wish to deal with the value of the vouchers. There is a big issue in regard to their value, currently stated to be the equivalent of seven pints—about £2.20p. That would not be sufficient to pay for the cost of formula milk. For 900 grammes of formula milk, the voucher would need to be worth between £6 and £7. There is great concern that that could cause mothers to move to cows' milk too early, with all the attendant problems that that would involve.
The idea has been put forward, rather imaginatively, by organisations such as the Maternity Alliance and others that a differential could be established so that in the early months—the first six months or, indeed, the first year—the scheme would have a higher value and then in the last years—all within the same overall budget—it would have a lower value. It is very important that that aspect of formula milk provision is dealt with. It would not be cheap, but the scheme could discriminate against mothers who are not breast feeding. Committed organisations such as the National Childbirth Trust—of which I am a patron— and others are very worried about the infant formula aspect.
There is an issue about whether or not the voucher should have a cash value or a food value. Without a food value being attached to a voucher there could be potential discrimination in favour of those with good access to supermarkets. I remember that Tessa Jowell, when she was the public health Minister, carried out a fair amount of work on the aspect of food deserts. We do not all have good access to supermarkets, so that is a real live issue.
There is also the issue of the actual physical delivery of vouchers, which is a problem. In addition, the Maternity Alliance and Royal College of Paediatrics and Child Health are concerned about the introduction of the new tax credit scheme that comes into force this April. It will reduce the numbers of those eligible for the scheme.
On food choice, there is some divergence of view about whether a unified voucher ought to be given, but that is precisely where a pilot scheme would be beneficial. I sympathise with the idea that we should not be a nanny state, that we should allow mothers the choice and enable them to go to supermarkets with a voucher and, within the overall value of the voucher, choose the foods that they think are appropriate. We should also pilot the scheme to see whether that is the best way, or whether it is better to specify that an element of the voucher goes towards fruit and an
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element towards milk. That is quite important. The British Retail Consortium has qualms about that issue.
It is vital that different options should be piloted and evaluated before the national scheme becomes operational. There are quite a number of questions in that context that need to be raised. Is the value of the scheme going to be roughly the same as it was previously? It has been estimated variously at between £147 million and £167 million. Is there going to be a further cash injection? How many mothers and children do the Government estimate will be eligible for the scheme? On the value of the vouchers, have the Government considered whether there should be a differential between the early and later years?
How will the success of the scheme be actually measured? After all, this is an area in which evidence will be absolutely vital. This is a new scheme, and we do not want to be in a situation in which we take a leap of faith and the scheme is not reviewed or evaluated in a proper fashion, but goes on for as long as the original welfare food scheme.
What "healthy foods" will actually be included in the scheme? Who decides? Will it be COMA or an expert committee involving dieticians and paediatricians? What is the process for that? How will the cash value, if it continues to be the value of the voucher, be protected in future?
A great number of questions hang over the scheme. It has a fair wind in terms of general support, but the reason for wanting it to be piloted is the large number of question marks hanging over it. A large number of organisations want to see the answers to those questions. I beg to move.
Baroness Noakes: We support the noble Lord, Lord Clement-Jones, in his desire for more pilots. He has raised a number of practical issues about how the new welfare food scheme will develop. I shall raise a few concerns now that we would otherwise have raised in the stand part debate. It is probably better to wrap all the concerns up at this point rather than have a separate stand part debate.
We are concerned that, if milk is dropped from the scheme as an essential component, we move from having something of known nutritional value to a scheme in which it may be much less clear whether the equivalent nutritional value will be achieved. We know that the vitamin and mineral intakes for children under five can be, and are, improved by intakes of milk, with some rare exceptions. We do not know how the welfare food scheme might develop in other directions. Dropping milk is a potential problem, because we are moving from something certain to something far less certain.
The noble Lord, Lord Clement-Jones, did not mention the impact on the dairy industry and, through it, on consumers. I am aware that the Government are aware of that aspect, but they seem to be unconcerned about it. Welfare milk is said to account for around 5 per cent of doorstep milk sales, and not all suppliers could cope with the loss of that business. Of more

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concern is the impact on the loss of milk rounds, because the people who will be affected by them are the more vulnerable people in society, who depend on those deliveries. The Government's response seems to be, "Let the milkmen sell fruit and vegetables", but that is not an easy proposition and it is by no means clear whether it is viable.
My last area of practical difficulty relates to the abuse of the scheme. If we have value-attached vouchers, we must have real concerns about whether those vouchers will be used for nutritious food or for junk food, or worse. I take Members of the Committee back to the days of luncheon vouchers, which I recall from the early part of my employed life. I soon found suppliers who would give cigarettes for luncheon vouchers. I have no doubt that something similar would happen if a monetary value were attached to vouchers. That is why we are concerned about rushing into a new scheme without greater knowledge of what we are doing, because we are potentially throwing away something that has been of undoubted value to young children.
Amendment No. 465 relates to the requirement for the affirmative resolution procedure. We believe that there should be proper parliamentary scrutiny when a new welfare food scheme is introduced. The Department of Health, in its submission to the Delegated Powers and Regulatory Reform Committee, said that it may need to adapt the range of foods regularly. Paragraph 303 of the submission said:
"This flexibility would be lost if the range of food were … required to undergo a separate and more demanding legislative procedure than the affirmative resolution procedure that applies currently".
We are not asking for a more demanding procedure than currently applies, because the current procedure under the welfare food scheme requires the affirmative procedure. We are, in fact, sticking with the affirmative procedure. I would take a lot of persuading that that flexibility means that we have to move away from the affirmative procedure. I accept that scientists' advice, over time, may change the approach to nutrition and, therefore, the composition of the scheme. However, I entirely reject the notion that the affirmative procedure would act as a serious brake on our ability to flex the welfare food scheme over time.
I hope that the Minister considers seriously the points encompassed in the thrust of the amendment introduced by the noble Lord, Lord Clement-Jones, if not its exact wording, and the parliamentary procedures applied to any new scheme.
Baroness Howarth of Breckland: I was going to make various points, but the Olympian canter that the noble Lord, Lord Clement-Jones, made through the whole argument leaves me wanting to make just one strategic point. There may not be a need to support a pilot scheme, but there is a real need for research into the possible outcome of the changes. Having said that, I am very much in favour of modernising the welfare food scheme.
The Food Standards Agency, of which, as Members of the Committee will have heard me declare several times, I am a board member, has, with the Department
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of Health, been seriously challenged by the difficulties of developing a good nutritional policy that would change the eating habits and improve the health of the nation. Your Lordships' recent debate on obesity, particularly in children, illustrated the difficulties we face.
The replacement welfare food scheme will ensure the availability of a wider range of foods and will provide greater opportunities for families to receive expert advice on food for children. We shall debate some of the difficulties of registration. The replacement welfare food scheme will contribute to the wider task of the agencies in their strategic aim and give mothers in particular a new relationship with the health service. It is vital to know and understand how it works. I do not necessarily support pilot schemes as I believe that we need to change the whole scheme. However, it is utterly vital that we have something in place to measure the impact of what we are doing.
Noon
Baroness Finlay of Llandaff: I hesitate to join the debate having missed the marathon session. I am not sure whether my flu did me a favour or a disservice as that session appears to have been an entertaining night. I support the concept of a pilot scheme as proposed by the noble Lord, Lord Clement-Jones. As the noble Baroness, Lady Noakes, pointed out, the devil is in the detail. There is potential for abuse. Until a scheme is implemented and monitored on a day-to-day basis, and the results of that monitoring are available to the Government, the potential for abuse of a scheme, and its potential to educate the eating habits of the nation, will not become apparent.
The noble Baroness, Lady Howarth, referred to the debate on obesity. The appalling deteriorating nutritional state of children in this country is evident. There certainly is a need to do something in that regard, but without a careful weighing up of the pros and cons of any scheme we shall be unable to assess the complexities of implementation. Therefore, I strongly support the concept of a pilot to gain the evidence that we so badly need.
Baroness Andrews: I am very grateful to everyone who has spoken in the debate and for the warm welcome from noble Lords on all sides of the House. I understand the difficulties that the Committee has in debating a scheme which is in development, as it were. Many details are currently out for consultation. I hope that I can address most of the questions that have been raised and provide some background.
The Committee is aware that, since its inception, the welfare food scheme has been of tremendous value to millions of families. However, it was introduced in 1940–63 years ago—and was designed to reflect the specific needs and expectations of families during wartime. The needs of families have changed, as have their expectations. Our knowledge of nutrition and child development has changed. We are in a very different situation now from that of 1940. The only thing that has not changed is the scheme itself. We have taken steps to ensure that we can effect

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permanent change taking with us not just the people who are knowledgeable about nutrition but also the beneficiaries of the scheme and the dairy industry. I shall discuss that matter later.
The noble Baroness, Lady Howarth, talked about the strategic importance of making the link between what we intend to put in place for young mothers and babies and the nutritional choices and issues facing the nation as a whole. That is indeed part of the context in which we are working to change eating and nutritional habits and to help people to build up a lifelong habit of healthy eating and good health. The second part of that strategy is to create better ways for young disadvantaged families in particular to link into the NHS itself so that they can get the added support, information and help that they need to make nutritional choices that will suit them and their families throughout their lives.
I have outlined the main aim of reforms but the Committee will want to know more about the regulations. I completely accept that consultation and debate are essential if we are to introduce reforms which low-income families want and which food suppliers can operate. In March this year we published our consultation document based on almost 500 responses, which demonstrated broad consensus across the spectrum on the need for reform as well as support for the principles of reform, and particularly the introduction of greater choice in the range of foods provided. Questions and concerns were raised on the detail. We are continuing that dialogue informally but consistently with key stakeholders, including beneficiaries and the dairy industry. Recently we produced a report with beneficiaries which contained germane questions about points of access and registration. To our pleasure, the overwhelming number of responses were positive. We shall let noble Lords have that information as soon as we can.
We do not want to lose out on opportunities to support new mothers in the pre- and post-natal stages. All we know about health inequalities indicates that they start at birth. I refer to low birth weight babies, higher mortality and higher morbidity for disadvantaged families throughout their lives, which result in the tragic statistics of shorter lives. It is extremely important to get young mothers into contact with the health service, to give them the information that they need and to expand the range of nutritional support through the scheme.
Officials have met representatives of the dairy industry, infant formula manufacturers, retailers and health professionals on a regular basis and their views are being, and will increasingly be, fully considered. As I said, feedback has been extremely important. We expect to publish the full details of our plans for reform later in the year. We shall obviously consult fully and publicly on the draft regulations for the scheme in 2004.
I turn to the case made for piloting and testing by the noble Lord, Lord Clement-Jones. We have full sympathy with that case. The regulations will encompass whatever arrangements for phasing in and
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testing prove appropriate. I assure the Committee that we do not think it would be fair on beneficiaries or providers to bring in new systems without ensuring that they will work in the way we hope and expect they will. To that extent we are minded to pilot or phase in the introduction of the scheme. We are still consulting on how best to do that but I certainly give the Committee that assurance. The problem we have with the amendment that the noble Lord has tabled is that it would restrict the scheme only to pilots. That is obviously something that we find difficult to accept. It would prevent us making the changes that we know from our feedback beneficiaries want without further primary legislation. It would also take time. After 63 years we are anxious to move swiftly on this proposal. It is not clear from the amendment what a pilot might comprise, how long it would last and what would happen to the scheme in the mean time.
The noble Lord asked some very specific questions which I shall try to answer. The noble Lord asked about the value of the voucher regarding younger infants. We consulted on that matter. It was widely welcomed. We propose to give the parents of younger infants more help with the cost of infant formula. One of our main intentions is to increase the incidence of breastfeeding. We want to be certain that whatever we come up with will encourage young mothers to breastfeed. That is perfectly consistent with what the Government have said recently about breastfeeding.
At the moment the specific value of the voucher has not been set. We proposed in the consultation document that the value should be broadly equivalent to seven pints of liquid milk. We are taking all views fully into account and considering how best to assess the various options for the voucher value. Currently we spend £142 million on the scheme as a whole. We should like to keep the scheme within those bounds.
I shall now address the question of the number of beneficiaries. I was asked how many people would receive the benefit. Currently, 800,000 new mothers, pregnant women and those with children under the age of five get the voucher. We would expect that number to be sustained. The number of beneficiaries obviously varies according to the number of people on benefit.
At the moment one does not receive the voucher unless there is evidence of pregnancy, and the maternity benefit form is used as evidence of that, so many young mothers do not come into the scheme until quite late in the pregnancy. Through the registration system we are aiming to bring young mothers in earlier so that they have a better chance of being supported through the pregnancy by the health professionals. We believe that that could be a more successful way of dealing with the matter.
The noble Lord also asked about monitoring and evaluation, which is a very important element. As I have said, if we phase it in that will enable us to learn from experience. We are also very keen to get robust evaluation. We shall certainly discuss how best to do that, whether it will be academically-based or practitioner-based. We have no intention of proceeding without a very robust evaluation scheme.

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The noble Lord also asked about healthy foods. We have talked about fruit and vegetables and cereal-based foods: that could be pasta or bread. We are still discussing with the nutritional experts the range that might be possible to achieve. As I shall argue in a little while, one of the arguments for flexibility is to have the ability to add different foods. For example, and speaking very personally, fish oil has been shown in recent years to have a significant impact on the brain development of young children. We are constantly faced with new information about nutrition.
I shall now move to some of the questions which the noble Baroness raised. She asked about milk in particular and the difficulty in exchanging its nutritional value for new food. The important thing is that milk is not going to be withdrawn. If families so choose, it will be possible for them to use their vouchers for a high proportion of milk. We are following the scientific advice of COMA in this matter. The scheme has, and will continue to have, a scientific base. We want to be certain about that.
As regards the impact on the dairy industry, the Government are certainly not unconcerned about it. We have consulted widely with the dairy industry. We know that there are a number of milk roundsmen who receive more than 7 per cent of their income from milk deliveries. We know that vulnerable people often depend on the milk round. We continue to consult with the retailers and the dairy industry on the matter. We have commissioned KPMG—the noble Baroness has an insidious influence on our tendering. I am not quite sure how to explain it. We are looking to that company to advise us on the specific area of milk delivery systems.
We are also looking at abuse. There is abuse of the system under the present scheme and most of it seems to derive from the suppliers and retailers charging over the odds, as it were. If we have a fixed rate voucher we believe it will remove that problem. We shall have four teams checking on the retailers to ensure that they sell the right range of foods. We shall require suppliers to sign up to a range of foods on registration. We are definitely not dropping milk. We shall be involving retailers in the decisions as they emerge. If I have not answered some questions I shall be happy to write to Members of the Committee.
I now turn to the affirmative resolution point and try to explain why we are convinced of the necessity for such regulations on this aspect. Affirmative regulations do have some disadvantages in the context of flexibility. The noble Baroness mentioned scientific evidence. Other potential changes are coming along in social security, tax benefits, and changes to health service delivery. The affirmative resolution procedure is more complicated. All the regulations covering the current scheme follow the negative procedure except for those describing the food to be provided. It is very interesting to note that the scheme has been changed over the past 63 years in every respect except this. This one area, which has been subject to the affirmative resolution, has not been changed since 1988. That of itself illustrates part of the problem we face.
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In reviewing the existing scheme, the committee dealing with medical aspects of food and nutrition policy was clear that any scheme needed to offer a broader range of foods. So we believe that it is essential that the scheme is sufficiently responsive to the needs of the beneficiaries. As I have said, we propose to pilot, monitor and evaluate; we propose to build in as much flexibility as possible so that we can keep the scheme going. For example, it might be possible to phase in new foods. We need operational flexibility because of the major changes in tax credits and the changes in the way the food is supplied. We are very anxious indeed to avoid inflexibility, restrictiveness, and slowing down the necessity for change after all these years.
The Delegated Powers and Regulatory Reform Committee did not disagree with that proposal. It took the point that the negative resolution procedure served the scheme better. I urge Members of the Committee to think carefully about the implications of the affirmative resolution procedure for low-income beneficiaries who rely on the scheme to contribute 20 per cent of their weekly food budget. We want to move fast and to be flexible. On those grounds and in view of the explanations that I have given, I hope that the noble Lord will be able to withdraw his amendment.
12.15 p.m.
Baroness Noakes: Before the noble Lord, Lord Clement-Jones, decides what to do about his amendment, perhaps I may return to a couple of points. The Minister said that she needs to move quickly. We cannot see the need for that. The current scheme is not failing. There may be some problems with it and issues of abuse at the margin. But the scheme is delivering milk, which has a known, life-time nutritional effect, particularly on young children. We are moving towards a scheme which has potential problems. I am not disputing that other foods have good nutritional value, but turning that into a food scheme is far from easy. The noble Baroness said that she is sympathetic towards pilot schemes, but she wants to move quickly. I believe that means the exclusion of pilot schemes, which are the subject matter of the amendment moved by the noble Lord, Lord Clement-Jones.
As regards my own amendment, I am far from convinced that the affirmative procedure, which merely adds another few weeks to making changes, is inappropriate. It is certainly appropriate for Parliament to have a really thorough look at the scheme when it is first introduced. I will not be pressing the amendment today, but I put the noble Baroness on notice that we are quite unmoved by her argument on not wanting affirmative regulations for this scheme.
Baroness Andrews: I shall respond to the point about moving quickly. I reiterate that we wish to get the matter right. I am serious when I say that we want a pilot scheme because that is extremely important. We would certainly not sacrifice getting the measure right for the sake of speed. We need to identify potential problems.

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The present scheme has been successful, but it was conceived at a time when the need for milk was overwhelming. While milk will not be dropped from the scheme and it will be a major part of it, we are now offering nutritional choices which match our knowledge of what children and mothers need and which can be provided as part of our general drive to try to raise health standards. As I have said, the affirmative regulations are important because they mean we can continue to build in flexibility as the scheme develops and as tax credits, social security schemes and health delivery schemes change. I hope that the noble Baroness will be able to reconsider her view.
Lord Clement-Jones: I thank the Minister for her reply to my Amendment No. 464A and I thank all noble Lords who took part in the debate. I was interested in the description of me given by the noble Baroness, Lady Howarth—going for an Olympian canter. I assume that that makes me Bucephalus for this purpose, but I am not sure.
All noble Lords said that it is vital to know how the scheme is working and to measure its impact. We all accept the point on strategic importance, made by the noble Baroness, Lady Howarth. It was interesting to hear the Minister unpick the strategy. We all accept the nutritional strategy, but the question which will arise under the next amendment is how far should the second limb of the strategy be pushed. It links disadvantaged families into the health service—the gatekeeper issue—and is an important aspect.
There has been a consultation exercise and the broad thrust of the reforms is generally welcome. However, the road map from here which relates to these proposals will be important. We want all the multifarious organisations to get behind the scheme. I welcome the Minister's comments that there is a commitment to a pilot scheme or phased roll-out, whatever it is called. However, the sooner the Government can set down a more detailed map of how that will work indicating what they have in mind, the better—and preferably before the Report stage.
There have been 63 years to work out alternatives, as the Minister made clear, but we have a shadowy outline of the way forward. I believe that it would be possible to say, "Right, this is the way we plan the roll-out and this is the way we plan the implementation. These are the ideas we have about actual measurement. This is the body which we think is the appropriate one. This is the kind of voucher and this is how they will be distributed". It is not beyond the wit of man or woman to get that right at this stage.
I hear what the Minister said about the value of the voucher, but she also talked about additional help with formula milk and so forth. I gained a vague impression that something is happening, but it is not entirely clear what that is.
The noble Baroness also mentioned a total cost of £142 million. That is interesting because it is the first time I have heard a concrete statement about the cost
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of the scheme. Some people would have put it rather higher than that. She also mentioned that 100,000 people will be eligible. I welcome the fact that in broad terms the Government expect the same numbers of people to be eligible.
However, many details—for instance, as regards the way in which implementation will take place and the basics of the scheme—have not been addressed. Have the Government addressed the issue of cash or food? There is a genuine point behind that question. Have they really considered whether different types of vouchers will be appropriate? That said, there is a big communications issue. It will be vital to communicate how the proposed scheme will work, starting at the beginning—which is now—saying, "Right, this is how we go forward". I therefore suggest that everyone gets their thinking cap on extremely early, starting this afternoon—
Baroness Andrews: I thank the noble Lord for saying that. We are very keen that the educational and information strategy is as good as it can be.
Lord Clement-Jones: That is great, but perhaps the communication of that to noble Lords at the Report stage would be a good way of demonstrating the Minister's commitment in that respect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 465 not moved.]
Baroness Noakesmoved Amendment No. 466:
Page 99, leave out lines 13 to 27.
The noble Baroness said: The amendment seeks to delete subsection (4) of new Section 13 of the Social Security Act 1988. Put simply, subsection (4) reeks of the nanny state which we believe the Government would secretly like to create. They seem to crave interference in the private lives of the citizens, which is why, for example, there has been a massive creation of means-tested welfare dependency. For example, more than half the number of pensioners could, if the Government have their way, be subject to means testing. Of course that will not happen because elderly people value their dignity and privacy and will opt out of means testing, even if it costs them. And even the Government admit that because they anticipate that only two-thirds will receive their pension credit entitlement. Therefore, the Government know that schemes which undermine dignity and privacy will not work. But when we come to the new welfare food scheme, they have not learnt. We have another blatant attempt to interfere in people's private lives.
Subsection (4) can make a condition of receiving welfare foods attendance at a hospital, clinic or doctor's surgery; an examination; home visits by state busy-bodies; or being on the receiving end of lectures. Those lectures are not just about nutrition and diet; they can extend to any other health matter. So the state will exploit the vulnerable to keep its vice-like grip on those people's lives.

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Subsection (4) is offensive, which is why we oppose it in principle. We also believe that it is likely to be counter-productive in practice. It will, like the means testing of benefits, drive many away. Others may subject themselves to the indignity, but to what effect? I do not believe that the Government have produced any evidence that their forced intrusions into private lives will have any beneficial effect. Will the Minister say on what evidence this particular part of the scheme is based? Have the Government measured the effectiveness of forced clinical and other interventions?
This subsection is bad law. It is opposed by the Royal College of Nursing and the Maternity Alliance, among others. It should not be allowed to remain in the Bill. I beg to move.
Lord Clement-Jones: The noble Baroness, Lady Noakes, has typically been extremely cogent in introducing the amendment. We on these Benches support her. Philosophically and nutritionally speaking, we are happy with the overall concept of the new "healthy start" scheme, but the subsection is one of the major stumbling-blocks.
I sense from the Minister's letter that as regards the clause the dish has run away with the spoon. Someone who had clearly been working in the Soviet health system decided that it would be nice to insert subsection (4) and no one spotted it until it was too late. It is now in the Bill and the Government are having to decide whether it is a good idea.
There has been a universal ruffling of feathers from many organisations which are intimately bound up with child health, primary care and general practice. The noble Baroness, Lady Noakes, mentioned the Maternity Alliance. It states:
"Opposition to the proposal to make midwives and health visitors gatekeepers of Health Start is both philosophical and practical… penalising a child for the non-compliance of an adult could never be justified … far from improving contacts with health professionals, it may simply decrease uptake of Health Start".
The CPHVA states:
"We object strongly that professionals, in particular health visitors, become gatekeepers to benefits in this way".
The RCPCH states:
"Insistence on early registration might exclude. The system should be flexible so that mothers can register at any point during their pregnancy or their child's first five years".
That is a slightly different view.
The RCN has been particularly strong. It states:
"The RCN is opposed to compelling beneficiaries to register for the scheme and believes that it would detrimentally affect the nurse/client relationship and may also deter mothers from low-income families seeking assistance".
Its concerns are highly specific. It is philosophical. It believes—we on these Benches strongly agree, as do, clearly, the Conservative Benches—that the principle of conditionality in respect of this type of welfare is wrong. There is a human rights issue; there are practical objections to the measure; and, as is clear from my earlier quotation, the RCN believes that the nurse/client relationship could be affected by the
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measure. Of course, that applies to the other health professionals who are potentially involved in administering subsection (4).
I suggest that the Government take away this subsection, burn it and think of something entirely different and far more appropriate and acceptable in the circumstances. They will find a great deal more buy-in to the scheme as a result.
12.30 p.m.
Lord Chan: Having listened to noble Lords who have spoken about this subsection, I begin to wonder whether the Minister has a special reason for inserting it. I should have thought that the 800,000 people who will come under the scheme would be those living in areas of deprivation. They would also have health inequalities and would, in any case, require help from the NHS—particularly at primary care level. Therefore, they would be in touch with local health professionals, who would assist them and, it is hoped, would also encourage them to make good use of the scheme.
The subsection reads as a rather heavy-handed way of requiring people who use the vouchers to attend hospital and so on. Therefore, I am not clear why this provision is included as part of the scheme. I should like the Minister to help me with an explanation.
Baroness Finlay of Llandaff: As my noble friend Lord Chan rightly pointed out, the very people who will be subject to this scheme will be those in areas of deprivation. I want to add a little detail to the debate for consideration by the Minister. I want to draw attention to the GP vacancies which exist, particularly in areas of deprivation. Anything that changes the role of the GP in those areas from being a person who works with his patients to being someone who is seen in an administrative role inevitably will drive young trainees further from such areas of deprivation.
In the past year, there has been an increased vacancy factor of 3.4 per cent in general practice. That is a very worrying trend. There are huge recruitment problems in areas of deprivation. One thing that may attract younger trainees to such areas is the possibility of working in a different way—that is, in not such an administrative way—with their patients in the future. Therefore, I am concerned that the scheme may be cumbersome and rebound on areas other than directly on the scheme itself.
Baroness Howarth of Breckland: I think I understand the aim of the clause, but I believe that the implementation of the scheme would be extraordinarily difficult and therefore I cannot support its inclusion. But I understand the need to get young mums in difficult areas to make a link with the health service. I would support that as part of the broader nutritional strategy, which we are all trying to move forward.
However, I believe that the communication/ education phrase is probably a better one, and there are other ways in which the scheme can be carried out.

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To gain the vouchers at all, even under the present scheme, there will have to be a link with verification of pregnancy or of having children in the family. Surely we can develop that. But also, as changes in the type of credit available are introduced, surely we could include leaflets in that information. A wide range of alternatives is available which would not interfere with the relationships between the health professionals and the sometimes extraordinarily difficult to access families with whom they are trying to work.
Baroness Andrews: I am grateful to all those who have spoken in the debate. There has certainly been some very strong language, especially from the Opposition Front Benches. Nothing could be further from our intention than that we should exploit vulnerable people. The scheme is about creating better links in order to support vulnerable, disadvantaged people. The aim is that the health service should move nearer to their needs in more comfortable and more effective ways so that they have better lifelong relationships with the NHS and so that their children stand a better chance of receiving nutrition which helps them to grow healthily, avoid obesity and become healthy and active citizens. Therefore, I take issue with the language that has been used.
I understand that there are concerns about subsection (4) and I shall address the specific issues. However, first, perhaps I may answer a few of the questions raised. I turn to the matter referred to by the noble Lord, Lord Chan, who has enormous experience, which I respect a great deal. Our experience and evidence suggests that low-income families are less in touch with health professionals than middle-income families. To an extent, that explains their reluctance to go to the doctor or to make contact with a health visitor. That happens for all sorts of reasons—particularly in the case of young women. They attend later in pregnancy than higher-income women and they come with complications. They come not having had the proper nutrition that, thankfully, people such as us take for granted. We need to encourage and inform them.
I say to the noble Baroness, Lady Finlay, that the scheme is not about an administrative role for GPs. I hope very much that in the information that we distribute we make that clear. It is about bringing in low-income families on a confident, comfortable basis in the same way as we do with higher-income families and those who are more used to dealing with authoritative figures in society, of whom the doctor is certainly one.
We have also tested out the scheme with beneficiaries. Many beneficiaries welcomed the idea of receiving more support to help them to eat a more healthy diet and to navigate their way through the available information about what is and is not healthy. That information is often very confusing. They also welcomed the idea of being encouraged to obtain help with budgeting and to know that cooking is sometimes an easy alternative. I say that without being patronising. This is nothing to do with nannying; I
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believe that many people simply need to get their hands on the right information. We certainly welcome the schemes that exist. The Sure Start scheme has been a great success because it has made the link between low-income families and sources of support. I consider it to be a very good model for this scheme and we want to build on that.
We also know from the Acheson inquiry into health inequalities that breast-feeding confers short and long-term health benefits. However, the vast majority of mothers still choose to bottle-feed and we want to address some of those issues in relation to young mums, as mentioned by the noble Baroness, Lady Howarth.
As I said, we are talking about 800,000 eligible people. However, I reiterate that the current scheme is missing a major opportunity to bring the family within the framework of the National Health Service in more effective ways and to tackle health inequalities that start at birth. The aim of the reformed scheme is to make better use of that potential and, indeed, to offer the health professionals themselves a better way of becoming involved. The scheme provides the most significant opportunity that health professionals have had for a generation to achieve their aims of improving nutrition and health outcomes. That is why we want to implement a new system of support, advice and guidance and why information and help is so important. It is important to get the communication right.
It is not our aim to introduce a series of new contact points; nor is it our aim to place undue burdens on the NHS or the beneficiaries or to put at risk the important relationships that exist. That is precisely why we are consulting so widely. We are going to build on existing NHS practices and contact points for pregnant women and young mothers in a way which is proportionate— proportionate with human rights as well—and which complements the role of health professionals. We are going to use the existing network. We want to encourage a more effective take-up of ante-natal services. But I assure noble Lords that we would not expect to set up schemes outside the normal provision which is available to all. We shall not insist that low-income women be subject to any examination outside the normal procedures that take place at present when any woman confirms her pregnancy. To receive maternity benefits at the moment one has to provide proof of pregnancy and that is why people have to fill in forms.
These aims are wholly consistent with our wide objective to reduce child poverty and to reduce disease. As I have said, a similar model is set out in Sure Start, which has a 95 per cent take-up rate. We anticipate similar levels of take-up. If the amendment were to be accepted, this vital opportunity to tackle health inequalities would be severely threatened. We would lose that opportunity. We would lose the potential of a very important change in the way that we do things.
However, I have been listening very carefully to the points that have been made. I understand that people feel seriously about this issue, particularly about the

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requirements relating to physical examination. We know that that has caused some concern. Therefore, I am minded to take the amendment away for reconsideration. On that basis I hope that noble Lords will withdraw their amendment.
Baroness Noakes: I thank the Minister for that reply. If it had not been for her last comment, my response would have been framed in the strong language that she does not like. If she wants to hear strong language, perhaps she would come to my room later where she could find out what really is strong language.
I thank all other noble Lords who have taken part in this debate. Some important issues have been raised. We are not at odds with the Government in wanting to help young mothers do well for their children and for themselves. We want that as much as the Government do. The question is the means. We have been most concerned about the compulsion behind subsection (4). The noble Baroness, Lady Howarth, spoke of helping, encouraging and informing. That is what we should be doing, not prescribing that a woman has to have a physical examination or a lecture or has to allow someone into her home and so on. That is why we find subsection (4) so wrong—not because we disagree with the aims.
We believe that the scheme could perfectly well be carried out in a proper way—without subsection (4)— by encouragement, and not by compulsion. I am very glad that the noble Baroness will take the amendment away and reconsider it for Report stage. I encourage her to think very hard about it before then. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 181 agreed to. Clause 182 agreed to.
[Amendment No. 467 not moved.]
Clause 183 [Appointments to certain health and social care bodies]:
[Amendment No. 468 not moved.]
Baroness Noakes Baroness Noakes moved Amendment No. 469:
Page 102, line 24, at end insert—
"() If the Secretary of State holds any appointments functions in respect of which he has not made a direction under subsection (2), he shall make an annual report to each House of Parliament setting out the appointments functions concerned and the reasons for the retention of exercise of those functions."
The noble Baroness said: Having dealt with the welfare food schemes, I believe that we have turned the final corner on this Bill. In speaking to Amendment No. 469 I shall speak also to Amendment No. 470. We have already debated the thrust behind Clause 183 on several occasions. It concerns the various appointments that are made in the NHS being delegated to the NHS Appointments Commission. We discussed that when we talked of the regulator, CHAI and CSCI.
Amendment No. 469 simply provides for parliamentary scrutiny of those appointments that are retained by the Secretary of State. It is all very well
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setting up a power to transfer the requirements if some appointments functions are retained— I do not think that this is the time to debate which will be retained— but this amendment concerns the transparency of the appointments that are kept, stating the reasons for them being kept.
Perhaps the Minister would mention the directions given by the Secretary of State. Subsection (2) talks of making a direction and of giving a power of appointment to the commission. Will the Minister say whether, having made a direction, the Secretary of State can take that power of appointment back again? I am working on the assumption that that is the case and, therefore, that it would be right, over time, to retain the visibility of what is or is not being delegated. Perhaps the Minister could confirm that.
Amendment No. 470 is a probing amendment. Paragraph 2(2) of Schedule 12, which the amendment deletes, transfers the appointment powers of Her Majesty the Queen to the Privy Council, with the intention that the Privy Council delegates to the Appointments Commission. That relates to the General Medical Council. My question is simple: have the Government consulted Her Majesty before attempting to remove her powers? I beg to move.
12.45 p.m.
Lord Warner: On taking the direction back, the answer is yes, the Secretary of State can.
I put on the record that it is expected that most of these appointments will be delegated to the Appointments Commission but there is a need to retain some appointments. That is particularly so in the area of highly specialised advisory bodies, where the relevant specialist skills and knowledge are likely to be within the department. That puts the matter into context.
As the Committee is aware, the Appointments Commission is a relatively new innovation, but it is an innovation particular to the Department of Health. Most other public appointments outside the health area are still currently handled and made by the other departments and the Ministers concerned. Details of those appointments are published via press releases as well as being set out on an annual basis in the Cabinet Office publication, Public Bodies.
That will still be the case in relation to appointments for which the Secretary of State in the Department of Health continues to be responsible, including both the appointments made by the commission and those made directly by Ministers. Any appointments made by Ministers will be subject to audit by the Commissioner for Public Appointments and she will also consider any complaints made about the appointments process in exactly the same way as she does for appointments made by other government departments.
Therefore, I can see no reason why there is a need for Department of Health appointments to be singled out and treated differently from public appointments made by Ministers of other government departments. It implies that the occupants of Richmond House are

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rather more disreputable—that is an offensive remark—than other public appointments made by other Ministers. We are singling out the Department of Health, and if that is what the noble Baroness is saying perhaps we should get it on the record.
Amendment No. 470 changes the context. On the question of whether Her Majesty was consulted, where there is change in legislation that affects Her Majesty the normal practice is that consultation takes place with the Palace. I shall check that and let the noble Baroness know.
Baroness Noakes: I thank the Minister for his reply. I did not suggest that the Department of Health was disreputable. That is too strong a term. But the Department of Health has been criticised by the Appointments Commissioner for the over-politicisation of its appointments, which is why the NHS Appointments Commission came into being in the first place. My amendment is a logical end point of that process. The reason is that the Department of Health was perhaps thought, in some quarters, to have had a case to answer. I shall consider carefully what the Minister has said.
Lord Warner: I believe that the department has answered the question and the concerns by setting up the NHS Appointments Commission.
Baroness Noakes: That is quite so. That is why, if the department hangs on to anything, we have tabled this amendment which is about transparency. I shall not pursue that point today. I look forward to hearing the Minister's confirmation or otherwise in relation to my probing Amendment No. 470.I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 183 agreed to.
Schedule 12 [Privy Council appointments]:
[Amendment No. 470 not moved.]
Schedule 12 agreed to.
Clause 184 agreed to.
Clause 185 [Validity of clearance for employment in certain NHS posts]:
Baroness Noakes Baroness Noakes moved Amendment No. 471:
Page 103, line 28, leave out subsection (2).
The noble Baroness said: I shall be extremely brief in moving Amendment No. 471, which amends Clause 185. It is a probing amendment. We support the protection of vulnerable adults scheme introduced by the Care Standards Act 2000. We have no problem with the basic thrust of Clause 185. My question to the
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Minister is: what has happened to the scheme? When will it actually start to protect the vulnerable adults whom it is supposed to protect? I beg to move.
Lord Warner: Consultation is still taking place on the scheme. We would hope to introduce it as quickly as possible. That is why provision is being made in the Bill.
Baroness Noakes: Will the Minister elaborate on "as quickly as possible"? It is a little like "shortly"; it is one of those elastic terms that we come across a great deal in Committee.
Lord Warner: I do not have a date in my notes, but outside the Committee I shall be happy to give the noble Baroness our best estimate of when the scheme will come into operation.
Baroness Noakes: I thank the noble Lord and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Warner Lord Warner moved Amendment No. 471A:
Page 104, line 9, at end insert—
"() The effect of subsections (1) to (3) is to be disregarded in determining for the purposes of section l of the Regulatory Reform Act 2001 (c. 6) (power by order to make provision reforming law which imposes burdens) whether any provision of either of the following Acts falls within subsection (4)(a) of that section (provision amended by an Act within previous two years)—

(a)the Protection of Children Act 1999 (c. 14);

(b)the Care Standards Act 2000 (c. 14)."

The noble Lord said: The Department of Health, as I said in a previous amendment, plans shortly to begin a public consultation exercise on the commencement of the protection of vulnerable adults (POVA) list provisions contained within the Care Standards Act 2000. There will be a public consultation exercise on that.
The POVA list will be a list of people judged unsuitable to work with vulnerable adults. As part of that consultation we shall be asking for views on certain easements; for example, should a check against the POVA list for work with one agency remain valid for work with another agency? At the moment, a person would need to apply for a fresh POVA check each time he or she signed up to a different agency. Once the POVA scheme is commenced, this requirement may cause an unnecessary financial burden on employers and employees, in certain circumstances.
Should the response to this consultation proposal be positive, the Government would consider seeking a legislative vehicle—possibly a regulatory reform order—to provide easements in the Care Standards Act. An RRO cannot be used in relation to legislation that is less than two years old on the date that an RRO is made. Given that Clause 185 of the Bill makes amendments to the POVA provisions in the Care Standards Act 2000 and to the Protection of Children Act 1999, it is doubtful that we would be able to use an

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RRO to make further amendments within a two-year period. It is for that reason that we seek this technical amendment. I beg to move.
Lord Skelmersdale: Section l of the Regulatory Reform Act talks about order-making powers. What is the point of having such a power if primary legislation, such as this, extends the time limit for putting in the order? I do not understand the position.
Lord Warner: The noble Baroness supports the bringing of this scheme into operation as quickly as possible in order to reduce the risk to vulnerable adults. We are taking a precautionary measure so that we will not be delayed by the need for primary legislation in this area. The provision is very specific to this scheme. It merely deals with a public safety issue.
On Question, amendment agreed to.
Clause 185, as amended, agreed to.
[Amendments Nos. 472 and 473 had been withdrawn from the Marshalled List.]

Clause 186 agreed to.

Schedule 13 agreed to.

Clauses 187 to 190 agreed to.

Clause 191 [Orders and regulations]:

Earl Howe Earl Howe moved Amendment No. 474:
Page 105, line 10, at end insert—
"() The Secretary of State shall have a duty to consult the Scottish Parliament or the Assembly before making any regulations under this Act which have an impact on the provision of healthcare by NHS bodies which serve patients both in England and in Scotland or. as the case may be, in Wales."
The noble Earl said: We had an extensive debate last week on the impact that devolution has, and will continue to have, on patients who cross the border of Wales or Scotland for treatment in England; and, indeed, vice versa.
I spoke of my concerns about differing standards that may apply on one side of the border relative to the other. I mentioned the risk of dual inspections and dual protocols. I spoke of the possibility of Welsh patients being at a legal disadvantage compared to English patients if a Welsh commissioning body sought treatment for those individuals in England.
The Minister was, if I may say so, rather too dismissive of those concerns. My amendment proposes that the Secretary of State should have a duty to consult the Scottish Parliament or, as the case may be, the Assembly before making any regulations under this Bill that have an impact on any NHS bodies in England which deliver treatment to Scottish or Welsh patients. I do not believe that that is a lot to ask. The Minister may not think that the issues I have flagged up are all that serious, or even real issues at all; but there are many who do; and I believe that the least we should do is to enable the cross-border impact of this Bill to be minimised from the very outset by allowing all those with a potential interest to discuss the issues among themselves. I beg to move.
Lord Warner: I thought that the Committee was aware that both the Assembly and the Scottish
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Executive are and will continue to be consulted as necessary on parts of the development of any set of Westminster regulations. We are not doing anything here which is unusual. We continue to have those consultations. This consultation can take place at ministerial or official level. Day in and day out those kinds of discussions lake place. Of course the Assembly and the Scottish Parliament can hold to account as they see fit Assembly Governments and Scottish Executive Ministers.
We do not think that it is necessary to put the provision in the Bill. Post-devolution settlements are working properly. We do not think that it is necessary to specify this particular change in the area of health.
Earl Howe: I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Warner Lord Warner moved Amendments Nos. 474A and 474B:
Page 105, line 14, at end insert—
"(4A) The Secretary of State may not make a statutory instrument containing—

(a)regulations under section 146(12),

(b)the first regulations made under section 149(2), or

(c)an order or regulations under this Act making, by virtue
of subsection (l)(b), provision which amends or repeals any part of the text of an Act,
unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."

Page 105, line 15. leave out "an" and insert "any other"
On Question, amendments agreed to.
[Amendment No. 475 not moved.]
Lord Warner Lord Warner moved Amendment No. 475A:
Page 105, line 16, after "section" insert "22, 25(3), 28 or"
The noble Lord said: Amendment No. 475A is technical and corrects a drafting oversight. Its purpose is to change the level of parliamentary scrutiny—from negative procedure to no parliamentary procedure— applicable to the delegated powers concerning various aspects of the operation of NHS foundation trusts, so as to make them largely consistent with similar provisions relating to NHS trusts under the NHS and Community Care Act 1990.
The Delegated Powers and Regulatory Reform Committee considered the amendment and found the change in the level of scrutiny to be appropriate. There was nothing in regard to the amendment to which the committee wished to draw the attention of the House. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 476 and 477 not moved.]
Clause 191, as amended, agreed to.
Clause 192 agreed to.
Schedule 14 [Repeals and revocations]:
[Amendment No. 477ZA not moved.]
Lord Warner Lord Warner moved Amendments Nos. 477ZB to 477ZE:
Page 169, line 24, column 2, leave out "and (j)" and insert ", (j) and (k)"
Page 170, line 32, column 2, at end insert—
"In Schedule 7A, in paragraph 3(1)(g), the words from "or under" to "this Act".
Page 170. line 40, column 2, leave out "paragraphs 6 and 7" and insert "paragraph 6"
Page 171, column 2, leave out line 42.
On Question, amendments agreed to.
Schedule 14, as amended, agreed to.
Clause 193 agreed to.
Clause 194 [Commencement]:
Lord Warner Lord Warner moved Amendment No. 477A:
Page 106, line 10, after "115," insert "section 143 and"
The noble Lord said: This is a technical amendment that corrects an error. It simply provides that the power to commence the minor and consequential amendments provided for by Clause 143 and Schedule 9 is exercisable by the Secretary of State, with respect to England, and by the National Assembly for Wales, with respect to Wales. I beg to move.
On Question, amendment agreed to.
Clause 194, as amended, agreed to.
Clause 195 agreed to.
Clause 196 [Supplementary and consequential provision]:
Earl Howe Earl Howe moved Amendment No. 478:
Page 107, line 9, at end insert—
"() No order may be made under this section unless a draft of the order has been laid before and approved by both Houses of Parliament."
The noble Earl said: By any measure, the provisions in Clause 196 are out of the ordinary. They enable ministers to make such supplementary incidental or consequential provisions as is thought appropriate to give effect to the Bill. That includes in subsection (3) a power to modify any Act, including an Act of the Scottish Parliament or subordinate legislation. It is understood that that includes repeals.
The Select Committee on Delegated Powers and Regulatory Reform commented that it is not persuaded by the department's explanation of why the negative rather than the affirmative procedure should apply here. It recommends that the affirmative procedure should apply for those orders that amend Acts. I hope that the Minister will sympathetically consider my amendment in the light of that. As the Select Committee noted, this is a wide-ranging Bill. The scope for amending it and any of its subject areas under the powers set out in the clause is enormous. I suggest to the Minister that the Government abandon the negative procedure not just for subsection (3) but for the clause as a whole. I beg to move.
Lord Warner: There may be a misunderstanding. In response to the recommendations of the Delegated Powers and Regulatory Reform Committee, we tabled
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government Amendment No. 474A, which we debated—it seems only yesterday but it was actually early on Tuesday morning. That will have the effect of making any order or regulation that amends or repeals any part of the text of an Act of Parliament subject to the affirmative procedure. So we have already responded in part to Amendment No. 478, in that any consequential provision that amends part of the text of an Act would be debated in both Houses.
However, Amendment No. 478 goes further and would require all orders to make consequential provision—whether or not they amend Acts—to be subject to the affirmative procedure. In future, we may need to amend references to certain bodies referred to in regulations—for example, where the functions of the National Care Standards Commission are being taken over by CSCI. In those circumstances, we will need to change references in secondary legislation by order. Such an order would not amend primary legislation and it would go beyond the scope of the recommendation of the Delegated Powers and Regulatory Reform Committee for it to be subject to the affirmative procedure.
Earl Howe: I am grateful to the Minister for drawing my attention to government Amendment No. 474A, to which I should have paid closer attention when he spoke to it on Tuesday morning. Clearly, I shall read what he said then. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 196 agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with amendments.

Anti-social Behaviour Bill
1.5 p.m.
Report received.
Clause 1 [Closure notice]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 1:
Page 1, line 9, leave out "and" and insert "or"
The noble Lord said: My Lords, Amendment No. 1 deals with territory that we covered in great detail in Committee. I do not intend to reiterate that debate. Clause l provides that a closure notice can be placed on a residential property where drugs are being produced or distributed and where there is anti-social behaviour. The only reason I have for returning to the matter is that in his response, the noble Lord, Lord Bassam, said:
"A range of measures are in place and it might be useful if I clarify them in correspondence so that I can describe how we see them working. We can then share the knowledge across the House.—[Official Report, 11/9/03; col. 437.] "
I may well have missed something, but as far as I am aware I have not received that reply. It would be useful if the noble Lord, Lord Bassam, were to share that knowledge across the House now.
Amendment No. 3 deals with a separate and new issue, but one around which we had much discussion in our debates on this part of the Bill in Committee. There was wide concern that third parties in a group of people, who might be completely innocent of both anti-social behaviour and any use of drugs because they are completely dominated by whoever is committing the offences, might none the less be adversely affected if a closure order was made.
The closure order requires consultation with the local authority, but there are local authorities and local authorities. Consultation can be someone asking the chief executive's department a question and the department saying, "Yes, that is fine. That has been a thorn in our flesh for a long time", without thinking of the possible consequences for innocent parties.
Amendment No. 3 is intended to deal with that situation. The housing authority has responsibilities that are in a sense in conflict with the purpose of this part of the Bill, because it is responsible for housing homeless people. It will always be a delicate balancing act between the priority for closure and the priority of dealing with the social consequences that flow from it, especially for housing. We reworded some of our earlier amendments to explore that issue and draw it to the House's attention once again to enable the Government to give us a more detailed explanation of how they see the provision working.
I shall not spend much time on Amendment No. 4, because we tabled it earlier. We prefer Amendment No. 3, which is rather more precise. I beg to move.
Lord Moynihan: My Lords, I rise to address Amendment No. 2, which is standing in my name on the Marshalled List. Like high hedges, this is a new subject, but one 1 think exceptionally fitting and appropriate as regards Clause l.
The anti-social nature of drugs in sport; the lessons from the FA handling of the Rio Ferdinand case; the current status of the UK anti-doping regime and the urgent need for government action led me to table the amendment. I congratulate Michele Verroken and her team at the Doping in Sport Directorate of UK Sport for their longstanding commitment. As Minister for Sport I had the privilege to publish a report in 1987 that asserted at government level for the first time that the sports councils condemned the misuse of drugs in sport and that we needed to take action there and then. She has ensured by her actions and dedication that the UK has been at the forefront of the global campaign against doping abuse in sport.
However, we have seen many changes in the intervening 16 years, and the time is overdue for Government to respond to the changes in the current structure. The key issues that should be borne in mind are: first, that UK Sport is now a distributor of the lottery funds established by the Conservative Party and a significant and important funder of athletes and governing bodies. It also plays an important role in representing the Government in the international sports arena, particularly as we bid to host the 2012
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Olympic Games. It cannot be right that the organisation that funds and represents elite sport should at the same time be involved in doping control.
The discomfort of being perceived by some, however unfairly, as gamekeeper and poacher requires the Minister for Sport to ensure that the agency for doping control is granted independence of UK Sport as a matter of urgency. With independence it should be directly accountable to the Minister and hence to Parliament. In parenthesis that should lead to a reorganisation of the valuable remaining work of UK Sport, which should be redirected to other agencies.
Secondly, the world anti-doping code has now been published. The Government and the International Olympic Committee have accepted the new anti-doping code, which encompasses all the elements in order to ensure optimal harmonisation and best practice in international and national anti-doping programmes, including the code, international standards and models of best practice. The code places new and more onerous responsibilities on both the national anti-doping agency and the British Olympic Association. It needs to be implemented fully and urgently.
Thirdly, athletes will, when tested positive, often challenge in court the resultant sanctions process. All too often governing bodies have found their own rules and processes wanting; the relationships they have with their member clubs at the very least uncomfortable; and the financial burden of fighting such cases onerous. The process can and has brought a governing body to its knees. It is time to give greater powers backed by legislation to a UK independent agency for doping control. It is unacceptable that governing bodies vary significantly in the way that they deal with doping infractions and sanctions, yet there is no recourse if they fail to meet their obligations.
We need a comprehensive system and a fairer and more transparent structure—which is why I have tabled this probing amendment—a system that speeds up disciplinary processes and ensures independent commissions with appropriate powers. Even if the Government do not take the opportunity provided by my amendment and return to the House with their own proposals, they should at least provide a national framework or code against which all governing bodies deal with cases under the umbrella of recognition of eligibility for funding. Independent sampling officers, for example, should be present throughout every testing process. Confidentiality should be protected, and club doctors and administrators facing clear potential conflicts of interest should be removed from the process immediately.
In coming to these conclusions, the House will note that we are now beginning to lag behind some of the more recent developments in national anti-doping policy for sport around the world. The future is with an independent agency reporting to the Minister. As part of signing the international standards for doping control, the Government have stated objectives to have internationally consistent anti-doping policies

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with laws and/or regulations that ensure the authority of the national sport governing bodies to require athletes to undergo doping tests and to sanction athletes who violate doping regulations.
Yet they are not acting. As anti-doping becomes increasingly complex, involving medicine, pharmacology, toxicology, social issues and human rights, the issues arising from doping are too complex for individual governing bodies of sport and make them timid in this area. There is a need to be robust and consistent. The consequences are enormous for sportsmen and sportswomen and clubs both amateur and professional. An independent statutory authority with consistent powers should be the response to this probing amendment, for there is nothing more antisocial than drug abuse in sport. If kids in schools believe that the only path to the top is to take drugs and cheat, we will see more deaths and lifetime injuries from the abuse of performance-enhancing drugs, which all too easily can turn competition between sportsmen into competition between chemists' laboratories.
This legislation gives the Government an opportunity. Now is the time for action. If the Government are not ready to act by Third Reading, I hope for a commitment that within six months the Secretary of State will come forward in both Houses of Parliament with proposals to establish a new UK independent agency for doping control in sport and to strengthen the existing agencies for dealing with doping cases in a robust, consistent and fair way, under a unified system to cover all governing bodies.
Paul Hayward put the matter clearly today in the Daily Telegraph:
"One day, legislators might come to see systematic drug use for what it is: systematic fraud, or obtaining money by deception".
Drug abuse in sport is one of the most anti-social of all activities. It is pernicious because it turns the dreams of our children, the future sports stars—the kids in the classroom—into nightmares. Some of their heroes are exposed as drug ridden cheats; others as foolish, whose mantra lies somewhere between the crass stupidity of, "I didn't know what I was doing when putting THG under my tongue," and, "Sorry, sir, I simply forgot to be tested". Both are inexcusable and now is the time for action.
1.15 p.m.
Lord Addington: My Lords, Amendment No. 2 in the name of the noble Lord, Lord Moynihan, attracts my interest. I am not sure whether there is a doorway in the Bill to view the supply of such drugs as a nuisance. However, he raised the significant point that drugs in sport—both illegal and performance-enhancing—are getting beyond the grip of the sporting bodies in this country. Many were set up in a different era when the amateur sportsman took part. They are struggling with the ramifications of greater professionalisation. Virtually all sports are going through that process.
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The Government should give some help and guidance. If that means taking this area of responsibility away from the sports bodies that is probably the only way forward. They will always be lagging behind. Will the Government give me some idea of their thinking? That would be a great help. Unless we have government enhancement we will always have catch-up areas and the odd embarrassment to sportsmen, as is currently breaking in the news. Then there is the idea: "Don't worry, your chemists are that little bit better than the part-timers that the enforcing body can employ". We do not want an Olympics where chemists and lumps of meat take part and individuals take part in another competition. The Government should think long and hard about stating whether they have any long-term ambitions over the role.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, it may be convenient if I deal with the amendment of the noble Lord, Lord Moynihan, first and come back to that of the noble Lord, Lord Dixon-Smith, because it is nearing time.
I share the noble Lord's abhorrence of the misuse of drugs by sportspeople to enhance their performance and thereby gain unfair advantage over those who act with propriety. I do not know whether the Bill is the appropriate place to introduce such provisions, but I understand why, bearing in mind what has happened, the noble Lord chose the opportunity to explore the issues. I acknowledge that he said fairly that it is a probing amendment.
We do not see that there is any case for extending the powers in the Bill. This Bill was, of course, designed to deal with specific problems caused by class A drugs, and class A drugs and performance enhancing drugs are very different. So while the use of drugs in sport is to be deplored, performance enhancing drugs are not associated at the moment with serious nuisance and do not cause the type of problem that these powers are intended to address. I can certainly assure the noble Lord that we believe that adequate and appropriate measures are currently available to the sports governing bodies to handle athletes who misuse drugs. However, I hear what he said. There appears to be an inherent conflict in being poacher and gamekeeper at the same time.
There may be much merit in looking at this issue in greater depth. However, at this stage it is not an issue that we think should divert police resources from where we think they should be directed on the anti-social behaviour issue. If sports grounds, for example, are associated with class A drug use and there is serious nuisance or disorder, they would meet the criteria for the use of the powers as currently drafted. I can understand why the noble Lord, Lord Addington, adds his voice to that of the noble Lord, Lord Moynihan. I shall certainly take away those remarks and share them with my right honourable friend the Secretary of State for Culture, Media and Sport.
I turn to the issues raised by the noble Lord, Lord Dixon-Smith. I now understand better that his amendments, too, are probing amendments which

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seek better clarification. I wondered whether we were going to return to the argument about putting together the requirements. I am therefore very grateful that he has clearly indicated that that is not his intention.
On Amendment No. 1, I do not think that it is desirable for us to allow closure simply on the basis of the use of drugs or nuisance rather than the use and serious nuisance. I am grateful to the noble Lord for indicating that he now agrees with that position. However, other powers do exist and can be used effectively to manage the anti-social behaviour of non-drug users. The application of these powers to non-drug related nuisance is therefore, in our view, unnecessary. I understand that a letter has been sent to the noble Lord by e-mail, but I am awaiting further clarification on it. Had I known that he wanted to raise precisely this issue I would have ensured that it was available to him. I can certainly undertake to try to get it to him today.
The Bill sets out that the notice must give information on housing support and other help. Any person made homeless has the right to seek re-housing from the local authority, but only those who meet the criterion set out in the law will be re-housed. In other settings, those who do not have a primary homelessness need under the law will not be given access to re-housing. We think that there is no reason why that should apply here. That is in relation to Amendment No. 3.
I am glad that that the noble Lord, Lord Dixon-Smith, said that Amendment No. 3 was probing. We think that the amendment would prevent the effective use of the powers, and the noble Lord clearly does not intend that. The closure notice already contains advice for those affected on how to contact legal and housing services. Therefore, if a person is entitled to re-housing, his application will be considered by the local authority on a case-by-case basis. Nothing in the Bill will adversely impinge on any of the other rights and duties in the Bill. So if an individual who has been made homeless falls within the current categories, he will be able to pursue his right.
I turn to Amendment No. 4. When a premises is in multi-occupation, it is possible for only a self-contained part of the building to be closed by the closure order. Consequently, communal areas can quite easily be excluded from the closure order by the court. Where vulnerable persons are involved, they will be advised of sources of help. I hope that that helps to clarify the position.
Returning to the noble Lord's letter, I shall not only seek it for him, I shall send him a further letter of apology for not having had it earlier.
Lord Dixon-Smithan interesting debate to wind-up in view of the intervention of my noble friend Lord Moynihan, who regrettably has had to leave although he was here for the explanation of his amendment. I am extremely grateful to the Minister for dealing with the amendments in that order because my noble friend had a business appointment that he
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was absolutely unable to avoid. I am grateful also to the noble Lord, Lord Addington, for his support of my noble friend.
The Minister's response has indicated that the Government understand the problems and difficulties in relation to drugs in sports. My noble friend said that it was a probing amendment. We seem to have been able to address in this legislation quite a few issues of an anti-social nature. My noble friend thought that it was legitimate to raise that issue and I think that it has been worthwhile. If the noble Baroness is going to take this matter to the DCMS for examination, I think it will find that there is an issue that requires attention. The independence of the athletics drugs police is, I think, going to be an essential element in the future organisation of sporting probity.
I am grateful for the Minister's response to my amendments; she has been extremely helpful. It is always difficult to know what to do if one has not received the reply that one was expecting as the result of an earlier stage in the Bill, because replies keep coming through. I would have loved to have been able to stand up and say, "My Lords, I withdraw the amendments because I have had the explanation", even if it had arrived this morning. In the event, that was not so. I have now had the explanation, for which I am immensely grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 4 not moved.]
Clause 4 [Closure of premises: offences]:
Baroness Walmsley Baroness Walmsley moved Amendment No. 5:
Page 4, line 10, after "section" insert", unless they are under the age of 18,"
The noble Baroness said: My Lords, I rise to move Amendment No. 5 and to speak to the other amendments in this group. Amendments Nos. 5 and 8 address the penalties that might be given to a young person under the age of 18 who offends under this part of the Bill. It inserts on the face of the Bill that someone in this age group should be given a community sentence. Amendments Nos. 6 and 7 add community sentences to the range of options available for people above the age of 18.
I raised this matter in Committee, supported I am delighted to say by the expert knowledge of the noble Lord, Lord Wedderburn, who also supports these amendments but unfortunately cannot be with us this morning. On that occasion, the Minister replied that it was not necessary to put this provision on the face of the Bill because sentencers already know that they can issue community sentences in such cases. However, there is really no reason why community sentences should not be put on the face of the Bill as an indication that they should seriously be considered as an appropriate sentence for adults who commit these relatively minor offences, and that, for young people, for whom custody should always be the last resort, they are the only really appropriate option.
The Minister, in the meetings that she has so generously attended recently with those of us concerned about young people, has often reiterated

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that the Government believe that custody should always be the last resort for young offenders. If that is really the case, I sincerely hope that she will prove that statement to be true by accepting Amendments Nos. 5 and 8, thereby avoiding the possibility of a court at some time in the future choosing to use a custodial sentence for a young person committing one of these minor offences. After all, these offences are not among those which indicate that the offender is a danger to the public and should therefore be incarcerated. I therefore hope that she will accept this group of amendments. I beg to move.
1.30 p.m.
Baroness Scotland of Asthal: My Lords, I am sorry that I have not been able to give the noble Baroness the comfort that she sought. I reiterate that I agree with her wholeheartedly—as I have on each occasion—that custody should be a last resort, not only for juveniles but for all those who come before the court. However, it is always important to allow the courts to exercise their discretion because we cannot legislate for the minutiae and the differences that may occur between individual cases. There is always scope for an exceptional case that does not comply with the normal rule.
The penalties set out in Clause 4 (3) are, as I said, the maximum penalties that the court can impose following summary conviction. We do not see the need for the Bill to spell out all the sentences options. The options available to the court are set out in the Powers of Criminal Courts (Sentencing) Act 2000, as amended. Options range in hierarchical order from imprisonment, community service order and fines to conditional and absolute discharge. As we said on the last occasion, that Act governs how the courts are entitled to exercise their discretion and puts the limit on what the court can do. Legislation creating a new offence spells out the maximum period of imprisonment that can be imposed or the maximum level of fine, but a sentencing court can always impose a lesser penalty. The court is under no obligation to hand out the maximum sentence. I am sure that the noble Baroness knows that it is very rare that the maximum sentence is ever handed out. In those circumstances, detention for those under 18 is unlikely, but there may be some circumstances in which detention for someone under the age of 18 may be the appropriate sentence on the particular facts of the case. It allows the court the discretion to make that decision.
Lord Wedderburn of Charltonmy noble friend continues to deal with the question of under-18s, does she not agree that this style of drafting is extremely unfortunate? It does not indicate to the ordinary reader that these maxima are accompanied by a vast range of other penalties, especially because of the way in which they are set out—as two separate penalties that may be imposed or both. Would it not be more sensible to ask the draftsmen to progress to a style that makes it clear that offences under this section are liable to a maxima on summary conviction and indicate the other penalties that are available, as the noble Lord, Lord Sudbury, suggested in Committee?
Baroness Scotland of Asthal: My Lords, I disagree with my noble friend because Members of the Committee will know that we have a plethora of Bills in which fines and imprisonment are specified. It would mean that on every occasion we would have to list all the options available under the Sentencing Act. If we decline to do that it could be said that an option that is included in the Powers of Criminal Courts (Sentencing) Act 2000 was implicitly excluded because it was not enumerated on the list. It would make the drafting incredibly complex. It has been a totally accepted way to specify the maximum penalty in each section and then the whole of the 2000 Act comes into play. That is why we passed that Bill.
Thankfully, the people who have to interpret these provisions do not lack expertise—judges will have their attention directed to the powers under the Act. We are in a happy position because our lay justices and professional judges are able to discharge that task with great facility.
I understand the reason for the noble Baroness's amendment and her anxiety about the matter, but this is the way that we have accepted that we will introduce Bills. When we went through the Powers of Criminal Courts (Sentencing) Act 2000, as amended, we made that clear. We have done a good piece of work on that Bill, and it will also apply in this provision. The noble Baroness knows that, in the ordinary way, there will be guidance and support for juvenile Benches that have to apply the provisions. We will examine all such issues in the ordinary way in terms of the rules and how they should apply.
I repeat that I understand entirely the noble Baroness's concern, but it is misplaced. We have the necessary security. It was the work of this House and the other place that achieved that in the 2000 Bill.
Baroness Walmsley: My Lords, I am most grateful to the Minister for her reiteration that custody should always be a last resort, especially but not exclusively for young people. She will be aware that what the noble Lord, Lord Wedderburn, and I are both looking for is clarity, as she is herself. One of my concerns is the plethora of Bills to which she referred. With that large amount of legislation, I fear that sentencers will look to this particular legislation and may overlook the fact that custodial sentences may not be the most appropriate. We would like to see more community sentences.
I differ from the Minister in her statement that it is necessary to have a maximum statement of custody for under-18s. I do not believe that for these offences a custodial sentence is ever appropriate. Some of her honourable friends in another place would agree with me—honourable Members who have a great deal of knowledge and expertise in issues involving young people. However, I see that we are not able to change the Minister's mind, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: My Lords, this seems to be a convenient moment, so I beg to move that further consideration on Report be now adjourned until this afternoon after Starred Questions.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 1.37 to 2 p.m. for Judicial Business and to 3 p.m. for Public Business.]

Privy Council and House of Lords Reform
Lord Lamont of Lerwick Lord Lamont of Lerwick asked Her Majesty's Government:
Whether as part of their modernisation programme they propose to abolish the Privy Council.
The Lord President of the Council (Baroness Amos):
My Lords, no.
Lord Lamont of Lerwick: My Lords, I thank the noble Baroness the Leader of the House for that reply, but is it not time for some more vandalism masquerading as modernisation? Does the noble Baroness remember that the previous Lord Chancellor—now something of a cult figure on this side of the House—said that the decision to retain 92 hereditary Peers until stage 2 was complete was an agreement made between Privy Counsellors on Privy Council terms and was binding in honour? Does the noble Baroness the Leader of the House agree that no mention was made of any small print that the promise could be broken if the Government could not make up their mind about what to do about stage 2? Is not the simple truth that the Government have broken their word and devalued the word of a Privy Counsellor?
Baroness Amos: My Lords, no. I do not agree with the noble Lord, Lord Lamont, who will be aware that this House came to one conclusion in respect of the next stage of House of Lords reform, voting 3:1 for an appointed House. The noble Lord will also be aware that in another place, when the seven options were put forward, there was no clear decision on any of the options. In view of that, the Government have made it clear that they will go ahead with the next stage, which is the removal of the remaining hereditary Peers.
Baroness Williams of Crosby: My Lords, while I accept that the noble Baroness the Leader of the House gave a clear answer to the first part of the question posed by the noble Lord, Lord Lamont, I must confess to some sympathy with the second part of his question. The commitment made to this House about the second stage was understood by most of us at least to involve a serious attempt to discuss with all parties in this House what would now happen as a result of the differences at the two ends of Parliament. Is the Minister aware that many of us are deeply disappointed that the
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Government are now going ahead with one part of their reform without paying too much attention to anyone else's proposals for reform?
Baroness Amos: My Lords, I am sorry that the noble Baroness feels that. There has been a White Paper; there has been a joint committee. The joint committee put proposals to the two Houses. There has been no agreement between the two Houses. In the absence of any agreement, the Government have put forward proposals for consultation. We are expecting the results of that consultation after December.
Lord Campbell of Croy: My Lords, does the noble Baroness agree that there are some advantages in the present Privy Council system? For instance, the oath taken by a Privy Counsellor is equivalent to signing the Official Secrets Act as regards protecting sensitive and confidential information, such as records of Ministers' discussions, as well as official secrets.
Baroness Amos: My Lords, members of the Privy Council sign an oath which enables them to have conversations with each other that can remain secret. I entirely agree with the noble Lord that there are some advantages to that system.
The Lord Bishop of Portsmouth: My Lords, as the son of an MI6 officer, perhaps I may steer your Lordships back to the question of House of Lords reform. Does the Government agree that one of the issues that needs to be revisited is not the either elected or appointed issue, but the different modes of election and different modes of appointment? That is something which we need to look at again.
Baroness Amos: My Lords, that may well be something which this House feels the need to look at again, but I must say that there was a clear majority in this House in favour of an all-appointed Chamber.
Lord Strathclyde: My Lords, as regards the answer that the noble Baroness the Leader of the House just gave to the right reverend Prelate, surely the Government have made up their minds on the nature of this House? Is not this policy a sign of the failure that the Government have had on constitutional reform? They started with broad agreement on change; they are now entirely isolated. No political party agrees with their way forward on the reform of the House of Lords.
Baroness Amos:My Lords, if there had been broad agreement on change, we would not have gone through the lengthy process that we have gone through until now. The Government tried very hard to ensure that there was a degree of consensus. That is why there was a Royal Commission; that is why there was a White Paper: and that is why there was a joint committee.
Lord Campbell of Alloway: My Lords, does the noble Baroness agree, or is she aware—she was not

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here at the time—that the essence of this arose because there should be no stage 1 before stage 2? Is the noble Baroness aware that it was to accommodate that contention that this deal in honour was struck? It is quite contrary to the essence of the deal to proceed as the Government are now proceeding. I entirely agree with the noble Baroness, Lady Williams, on this matter.
Baroness Amos: My Lords, the noble Lord's memory is slightly different from mine. I understood that one of the reasons that we came to that deal was to enable pressure to be brought for a further stage of reform. My reading of the debates in this House indicates that. However, I must repeat that there has been no agreement between the two Houses about the next stage of reform. In the absence of that agreement, the Government have put forward their own proposals.
Lord Faulkner of Worcester: My Lords, does my noble friend agree that one of the greatest obstacles to a consensus within this House on the subject of House of Lords reform is that the noble Lord, Lord Strathclyde, the Leader of the Opposition, is wholly out of step with virtually every member of his own party?
Baroness Amos: My Lords, there are very clear differences on the Opposition Benches, but I have to say that there are differences on our Benches too.
Lord Renton of Mount Harry: My Lords, declaring an interest in this matter as a Privy Counsellor, perhaps I may go back to my noble friend's original Question. Will the noble Baroness the Leader of the House tell us what is the use of the Privy Council at the moment, apart from oaths and such like? Given that there are a number of members of the Privy Council from the Commonwealth, would it not be helpful to seek their advice and experience about how either their elected or partly elected Houses work in their countries? Would that not be useful information for the Government, who are rather lacking in inspiration on this matter?
Baroness Amos: My Lords, we have a considerable amount of information, not just from Commonwealth countries but also from other countries, about the operation of their parliamentary systems. With respect to the noble Lord's question about the use of the Privy Council, given that the noble Lord is a member, I am sure that the Privy Council must have some use.
Lord Rea: My Lords, as a hereditary Peer who has been prepared to step down at any time during the past 21 years—far too long a period for me to have been here—it seems rather strange that when the House of Commons could not agree, the Government should say that that was the end of the matter. Surely, when an impasse like that has been reached, should not the
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answer be for the Government to say, "go back to the drawing board", and not to say that that is the decision?
Baroness Amos: My Lords, my noble friend will recall that, historically, it has been incredibly difficult to reach a degree of agreement on House of Lords reform, not only within this House but across the two Chambers. In the absence of that agreement, the Government have put forward their proposals. Otherwise, we could go on debating these issues ad infinitum.

Legal Aid
3.10 p.m.
Lord Clinton-Davis Lord Clinton-Davis asked Her Majesty's Government:
How they propose to address the potential withdrawal of many solicitors from the legal aid scheme in England and Wales.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin):
My Lords, the Legal Services Commission monitors the supply of legal aid services monthly. Indications from the new bid round for civil legal aid suggest that there will not be a significant reduction in the number of solicitors' firms providing publicly funded legal services.
A joint review by my department and the Legal Services Commission is under way, looking at demand, supply and purchasing arrangements to determine whether the current legal aid remuneration strategy and contracting structures represent the most cost-effective way of providing publicly funded legal services. The review will report in December 2003 and it will be published.
Lord Clinton-Davis: My Lords, does my noble friend agree that, under the Human Rights Act 1998, there is a fundamental right to access to independent legal advice and that currently approximately 40 per cent of our population is deterred from receiving it? Is he aware that there is a growing crisis in the legal aid system, whether or not he agrees with that assertion, in particular as regards the civil legal aid arrangements? Since January 2003, one in four solicitors has dropped out of the system. What is planned immediately to deal with those situations?
Lord Filkin: My Lords, we think that there is a risk of problems arising, but we are satisfied that there is not an immediate problem. That is not to imply complacency. We have to look also at how we can move back to the aims that this party has held for some 50 years; that is, to try to ensure that legal aid is made available to those in the greatest need. That requires not only a review of how we effectively commission work from lawyers, but also where, how and who we

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subsidise in the system so as to try to ensure that the very considerable increase in resources is directed to where it can give best value and is most needed.
Lord Renton: My Lords, I thank the noble Lord, Lord Clinton-Davis, for tabling this very important Question. May I ask the Government to bear in mind that the strengthening of the legal aid system is much more important in ensuring the success of our system of justice than are any of the proposed changes that the Government have in mind?
Lord Filkin: My Lords, I do not think that there needs to be a choice in this: we should do both. Much work is being undertaken by the Department for Constitutional Affairs, first, to ensure better value in the short term from the current legal aid budget, which is now £2 billion; and, secondly, to consider how the systems should be restructured to ensure that people get earlier resolution, often in ways that may be less adversarial and result in greater satisfaction than is currently the case.
Lord Phillips of Sudbury: My Lords, may I ask the Minister to review what I think many practising lawyers will consider to be his overly complacent response to the question put by the noble Lord, Lord Clinton-Davis? I declare an interest as someone whose firm has a legal aid franchise and therefore I speak from the coal face. There is now more severe discontent within the legal profession as regards legal aid than there has been at any time during my 40 years in the profession.
The noble Lord mentioned that there has not been, as he put it, a significant decrease in the number of firms seeking certificates. However, does he accept, first, that the number which are minded to withdraw from the legal aid scheme—and that includes my own firm—is really very significant? Secondly, there are already certain parts of the country where someone requiring legal aid has no access to a solicitor because none is available. Thirdly, in a recent survey, the Legal Services Commission itself found that some 2 million people with significant legal problems are currently receiving no legal help. Does the noble Lord accept that we have on our hands a real crisis?
Lord Filkin: My Lords, it is difficult to respond quickly to so many questions. We are certainly not complacent. We are aware that it is not necessary to have a lawyer physically in every town in order to provide a legal aid service, and therefore we have developed considerable initiatives in piloting alternative means of delivering those services.
Recent evidence derived from the civil legal aid bid suggests that a large number of lawyers wish to continue providing legal aid services. However, I repeat that we are not complacent; we are also aware of some concerns. The answer is not necessarily to throw about increased fee rates, but to consider trying to reduce levels of bureaucracy and to put in place better procurement arrangements with firms so as to give them greater certainty about the volume and flow
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of work, thus playing to the strengths of many legal firms which have demonstrated, through their scale and professionalism, that they are able to make good earnings out of the system.
Lord Ackner: My Lords, is not part of the trouble that the Government have relied on speculative legal practice, something which was looked on as being contrary to the public interest? It has now transpired that a high proportion of solicitors no longer wish to speculate because it is not a good basis on which to advise clients. One's own interest is often in conflict with that of the client.
Lord Filkin: My Lords, I am not absolutely certain that I have the gist of the question put to me by the noble and learned Lord, Lord Ackner. If he is asking whether we think it is important to focus legal aid on those firms which demonstrate that they can deliver quality services and try to reduce funding to firms delivering poor quality services, then I very much agree with him in that respect. Indeed, that is the thrust of many of our reforms.
Lord Carlisle of Bucklow: My Lords, does the Minister agree that in many areas of the country there are no solicitors providing a legal aid service, which people may well need? That is due to the withdrawal of many firms of solicitors from providing civil legal aid in the way outlined by the noble Lord, Lord Clinton-Davis.
Lord Filkin: My Lords, I can only say in all honesty that that is not the picture shown by the current evidence. While there are some pockets of problems, in some areas those are being covered by alternative arrangements. The best answer I can give to the noble Lord is to say that when we publish the promised report on supply, demand and procurement, it will put into the public domain the evidence we have gathered from our surveys, all undertaken with good co-operation from many solicitors' firms in response to our questions.
Lord Lester of Herne Hill: My Lords—
Lord Grocott: My Lords, we are well into the 16th minute of Question Time.

Crystal Palace Refurbishment
3.17 p.m.
Lord Moynihan Lord Moynihan asked Her Majesty's Government:
What urgent steps they intend to take to ensure the long-term refurbishment of Crystal Palace as a centre of excellence for British sport, in light of the proposed closure of its 50-metre swimming pool.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the London Borough of Bromley and Sport England are working closely together to establish a framework for the future of Crystal Palace which meets the needs both of the local community and of élite sport in London. I understand that they are making good progress and that local residents have been briefed on developments. The parties are in regular dialogue with both London and central government.
Lord Moynihan: My Lords, why have the Government not acted sooner to secure the long-term future of Crystal Palace with private-sector support, rather than oversee a situation in which the Amateur Swimming Association is considering the closest equivalent venue for its 2004 Southern Counties swimming championships in Dunkirk?
Lord McIntosh of Haringey: My Lords, responsibility for Crystal Palace lies with the London Borough of Bromley and Sport England. I would not wish to say anything that could interrupt their dialogue which, as I have pointed out, is progressing well and which we hope will reach a successful conclusion. As regards the plans of the Amateur Swimming Association, I understand that while it may be literally true that, as the crow flies, Dunkirk is the nearest venue, the association is also looking at the possibility of using a 50-metre pool with accommodation for 800 spectators in both Aldershot and Norwich.
Baroness Trumpington: My Lords, does the Minister agree that the entire site at Crystal Palace is extremely important from the point of view of any bid for the Olympic Games to come to London? Am I not right in thinking, for example, that accommodation is available there for foreign competitors which would make it much cheaper as an asset when it comes to putting the bid before the necessary authorities?
Lord McIntosh of Haringey: My Lords, before I respond to her question, may I congratulate the noble Baroness, Lady Trumpington, on her birthday today? I wish her a happy flight on Concorde tomorrow and I hope that she comes back!
Baroness Trumpington: My Lords, I was thinking of asking permission to have the entire Chamber on Monday afternoon to tell noble Lords all about it.
Lord McIntosh of Haringey: My Lords, yes, the noble Baroness is right. While Crystal Palace would not be used for main events in the Olympics, the facilities could well be used for training and practice purposes. Barbara Cassani, who is leading London 2012, is fully aware of those facilities and of the current negotiations.
Lord Addington: My Lords, one of the worrying things about the situation at the Crystal Palace sport
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centre is that a huge series of ad hoc committees will have to be put together to handle its transition from a front-line élite sports venue to a community services centre. There is a danger that those committees may not come together and deal properly with the transition. Do not the Government have a duty to ensure that such a transition of usage should be built in to any future planning?
Lord McIntosh of Haringey: My Lords, when referring to transition of usage we should remember that the Crystal Palace sports centre is now used mostly by the people of Bromley and its surrounding boroughs. It is used particularly by the people of its surrounding boroughs because the centre is right on the edge of Bromley. So there is no question of a transition from or to élite sports in the case of Crystal Palace.
Lord Monro of Langholm: My Lords, does the Minister recall that the Government set up a swimming advisory group in January 2001 to help teachers to provide instruction in swimming for pupils? Subsequent to that, very little seems to have happened. It would be a major disaster if the pool— which is the largest and most efficient in the south of England—is not available and disappears. Can the Minister give a firm assurance that the pool will continue in use for local people?
Lord McIntosh of Haringey: My Lords, I cannot accept that nothing has happened since 2001. The Government have allocated £1.2 billion for school sports facilities, which include, of course, swimming pools. At the same time, the New Opportunities Fund is providing £100 million for community facilities in the United Kingdom. An additional £31 million has been allocated in England by Sport England itself. Of course the pool at Crystal Palace is a valuable resource. We do not anticipate that that resource will disappear.
Lord Glentoran: My Lords, the Government's lack of foresight and attention to Crystal Palace is yet another signal in respect of their attempt to win the Olympic Games for this country. Do the Government believe that it is more important to compete in the event of gaining the Olympic Games than it is to win it?
Lord McIntosh of Haringey: My Lords, I am very sorry that the noble Lord, Lord Glentoran, should frame his question in that way. I do not accept that there has been a lack of forethought in regard to Crystal Palace. I am sorry that he asked a question which will have the effect—whether he means it or not—of seeking to undermine our efforts to gain the Olympic Games for this country.
Baroness Finlay of Llandaff: My Lords, are the Government concerned that the closure of any sports facility sends a powerful message which runs counter to the policy of tackling obesity and increasing the amount of exercise taken by the population at large?

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Exercise is particularly important for people rehabilitating after some illnesses and accidents, and swimming can be the safest form of exercise for them to undertake as they begin to resume the activities of daily living.
Lord McIntosh of Haringey: My Lords, I agree. But in the case of Crystal Palace we are not facing the closure of a facility. The position is that on 31st March 2004 Sport England's lease from Bromley Council expires and it has indicated that it wishes to surrender that lease. That in itself does not mean that there will be a closure either of the pool or of the sports centre. The efforts that I described in my first Answer will go towards ensuring the survival of sports facilities. That was one of the reasons to which the noble Baroness referred.
Lord Wallace of Saltaire: My Lords, does the Minister recognise how far this country is falling behind some of our competitors in the provision of competitive 50-metre swimming pools? On successive visits to Germany over the years, I have swum in 50-metre swimming pools all over that country. Most medium-sized towns seem to have them. There are several in the Frankfurt area alone. Is not this something the Government should look at?
Lord McIntosh of Haringey: My Lords, I yield to the expert evidence of the noble Lord, Lord Wallace, of his experience in Germany. I was not familiar with it. I shall convey what he says back to Sport England and to the sports authorities. We do what we need to do and what we can do; we do not do it because other people do things differently. But it is a valid point.

Iraq: Security Situation
3.24 p.m.
Earl Attlee Earl Attlee asked Her Majesty's Government:
In light of the most recent bomb incidents and deaths in Baghdad, what view they take of the overall security situation in Iraq.
Baroness Amos: My Lords, much of the country is remarkably stable. Attacks against the coalition are largely concentrated in a particular area north-west of Baghdad. Overall, the Iraqi people welcome the presence of coalition forces. Nevertheless, we accept that significant challenges remain, which we are resolved to meet. We are giving the Iraqis a greater role in security and we are taking urgent steps to ensure the supply of basic services on which the support of the Iraqi people depends.
Earl Attlee: My Lords, I thank the Minister for that reply. Does she agree that, with respect to Iraq, the media exaggerate the difficulties and ignore the successes? Would it not be helpful if the Minister
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provided your Lordships with a sanitised version of the regular situation report that she receives in order that we may be better informed?
Baroness Amos: My Lords, I agree that the difficulties are exaggerated. There have been a number of significant successes, particularly with respect to reconstruction. There are now some 13,000 reconstruction projects across Iraq and we recently agreed a £20 million construction fund for the south. Regular reports are placed, for example, on the DfID website, but I shall check with my colleagues to ascertain whether there is any further information we can give to noble Lords.
Lord Hylton: My Lords, does the noble Baroness agree that recent events in Najaf underline the importance of disarming various militias—for example, one called Al Madi, connected with a Mr Al Sadr? Does she further agree that the murders of certain prominent Shia clerics urgently need to be investigated?
Baroness Amos: My Lords, I agree that we need to disarm the militias. It is also important that Iraqis take responsibility for their own security. In that respect, police numbers now stand at some 40,000 and will progressively rise to 70,000 by the end of 2004. I also agree that the sooner we find those responsible for some of these attacks the better it will be for the security of the Iraqi people.
Lord Wallace of Saltaire: My Lords, how much influence do we have over CPA policy on the development of Iraq? The Iraq survey group is clearly under American command without substantive British influence. I was told by a Washington contact the other day that the Pentagon had vetoed the idea put forward by the British that Sir Jeremy Greenstock should formally be the deputy in the CPA to Paul Bremer. Is this an American-led occupation in which the British go along under American command, or do we have any substantive influence in its future direction?
Baroness Amos: My Lords, of course we have influence in regard to CPA policy. The noble Lord, Lord Wallace of Saltaire, will be aware that CPA South, for example, is led by Sir Hilary Synnott, who is a former Foreign Office diplomat. We have a number of staff who are working in different areas of CPA activity and giving support to Iraqi Ministers and ministries. The noble Lord will also be aware that there will be discussions about future policy and that there will be occasions on which the advice that we give is not always the advice that is taken. That is the nature of the situation we are in. For example, the governing council may well choose to go down one road when perhaps the members of the coalition would have advised it to go down another.
Lord Rea: My Lords, as regards security, will my noble friend look at the issue of food security, which

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has a slightly different meaning but which is, I believe my noble friend will agree, equally important? Can she confirm or deny whether a member of the CPA recently said that it was going to dismantle the food distribution system in Iraq—which has been a highly efficient combined operation between the United Nations and the Iraqis over the past 10 years—as the CPA disagreed with it because it was socialist in principle?
Baroness Amos: My Lords, I am not aware of that. The food distribution systems have been restored and have been a great success. What may be happening is that, because the Oil for Food programme that is linked to the distribution pipeline is coming to an end, discussions are going on about the next stage in relation to distribution. I shall try to find out more about the matter and write to my noble friend.
Lord Howell of Guildford: My Lords, does the Minister agree that there is some good news coming out of Iraq at the moment? Only this morning, we heard the news that 10,000 new enterprises have been started since the end of the war. We also wish well the efforts of the Minister's colleague, the noble Baroness, Lady Symons, who has gone to Madrid to work with the Madrid donor conference. We hope that the substantial sums already pledged by the British Government, and even more by the Japanese Government and the Americans, do their bit in rebuilding the basic infrastructure.
Does my noble friend Lord Attlee not have a substantial point, however? These things come out in dribs and drabs. Would it not be helpful to have something—I hesitate to say a dossier—that gives a coherent account of exactly what is happening on the positive side in Iraq, although that is overshadowed by the security difficulties? Is not the real need, even beyond aid and getting local enterprise going, to re-establish the rule of law and to overcome all the various groups trying to undermine it? Does that not mean that we should be putting every effort into localising the police and reintegrating the former Iraqi soldiery into a proper army so that they can look after their own security and the coalition troops will not have to walk around the streets being targets for pot-shots by terrorists?
Baroness Amos: My Lords, there is regular reporting put up on the DfID website. I shall quite happily write to the noble Lord giving him details of that. There have been reports in between those reports that were placed in the Library of this House and in the Library of another place. A coherent strategy is in place.
With respect to the Madrid donor conference, we will be pledging more than £300 million, in addition to the money that we have spent on humanitarian aid so far. We have paid a huge amount of attention to localising the rule of law. The goal is to have 70,000 Iraqi police officers by the end of 2004. There will be 3,000 police officers trained every eight weeks at a facility in Jordan. The reintegration of the army is also going ahead.

Anti-social Behaviour Bill
3.32 p.m.
Consideration of amendments on Report resumed.
Clause 12 [Anti-social behaviour: landlords’ policies and procedures]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 9:
Page 9, line 25, at end insert "who is a tenant of that landlord or to any person seeking to become a tenant"
The noble Lord said: My Lords, the amendment deals with a difference of opinion between the Government and myself over the best wording of the Bill. At present, the Bill states that, in relation to antisocial behaviour:
"The landlord must… prepare a summary of its… policy and procedures … to any person who requests it".
That is not sufficiently specific.
It is clear to me that every tenant should have that document and the landlord should be required to provide it, although, if the policies and procedures in relation to anti-social behaviour are included in the tenancy agreement, I readily concede that the tenants will have it. Whether those policies would be spelled out in full in a document that relates specifically to the right to occupy a property is another matter, although I do not doubt that they would be referred to.
More importantly, where the Bill says,
"to any person who requests it",
social landlords, or any landlord who has a policy towards anti-social behaviour, ought to be required automatically to provide it to people seeking to become tenants. It is to correct that difference of opinion, or to advance my opinion as being superior to that of the Government's—although I would not claim such arrogance in the matter—that Amendment No. 9 is before us.
I do not intend to debate the matter for a long time. We debated it in Committee and had a useful discussion but not, quite frankly, a satisfactory one. We need to be precise in such matters, and there are other areas of the Bill, to which we shall come later, which could be improved.
Amendment No. 17 has been tabled because of a complete failure on my part. I do not like putting matters that are "immaterial" in the Bill but, in trying to make those matters material, I failed. However, it would still be better not to have immaterial matters in the Bill, and that is why Amendment No. 17 has been tabled. I beg to move.
Lord Bassam of Brighton: My Lords, there continues to be something of a disagreement here, and I intend to explain why that is the case.
Amendment No. 9 would require social landlords to provide copies of summaries of their policies and procedures on anti-social behaviour to existing tenants, and to anyone who is seeking to become their tenant only. However, the amendment would remove the requirement to provide free copies to anyone, other than tenants or prospective tenants, who asked for

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one. Under existing provisions, the summary will be available to anyone at all with an interest in it. While we agree with the noble Lord that the information should be available to tenants and prospective tenants, we would not want to restrict access to the information in any way, and certainly not in the way that the noble Lord suggests. So we are dealing there with an unintended consequence of the noble Lord's amendment.
The effect of Amendment No. 17 would be that social landlords could use the housing injunctions introduced by Clause 13 to prohibit only the anti-social behaviour that occurred in the housing accommodation or its locality. That would have highly undesirable consequences. The wording is not immaterial to the legislation; it refers to where the anti-social behaviour takes place, so it is material.
It is not our intention that social landlords should police the activities of perpetrators of anti-social behaviour wherever they are, regardless of the circumstances. Where such behaviour happens outside the neighbourhood, there must be some link to the housing management function. However, there are numerous incidents where such a link is easy to establish and where it is perfectly reasonable for a landlord to seek to protect the victim wherever the behaviour has occurred.
If the noble Lord thinks back, he will remember that I gave some examples in Committee. For example, our intention is that a housing officer who refused a tenant a transfer could be protected if the aggrieved tenant later saw him in a supermarket some miles away from his place of work and attacked him. A dispute outside a school could also be covered, where it had started as a neighbour dispute on the landlord's estate. The amendment would remove that important protection.
Powers under Clause 13 are intended to allow social landlords to deal with real problems affecting the lives of real people. Anti-social behaviour is not neat and tidy, as I am sure the noble Lord understands, and victims cannot always escape it by stepping away from the neighbourhood. We will have failed victims if we allow housing-related anti-social behaviour to follow them away from their home or their work, but do not allow protection to follow them as well. Wherever it is reasonable for social landlords to seek to protect people, we must allow them the flexibility to do so.
I hope, having heard that and having reflected on the importance of the wording, the noble Lord will feel able to withdraw his amendment.
Lord Dixon-Smith: My Lords, I am grateful to the noble Lord for his explanation. As regards Amendment No. 9, I admit that it might be disadvantageous if social landlords, or, indeed other landlords in this field, were not required to provide their policies to anyone. To that extent I am prepared to accept that my amendment could be improved. I may well take it away to see whether I can improve it.
As regards Amendment No. 17, the Minister said that this matter, which is described in the Bill as "immaterial", is material. He made it clear that it was
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material. In the circumstances, therefore, will he take the measure away and consider whether he can do something with the wording so that the Bill does not state, "It is immaterial where"? It seems to me that that is a problem. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Injunctions against antisocial behaviour on application of certain social landlords]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 10:
Page 10, line 7, after "to" insert "unreasonable"
The noble Lord said: My Lords, Amendment No. 10 is the first amendment in a very large group which I expect we shall spend some time on, all of which arise because there is considerable unease over the definition of "anti-social behaviour". As the Bill states, the definition applies to conduct,

"(a) which is capable of causing nuisance or annoyance to any person, and

(b) which directly or indirectly relates to or affects the housing management functions of a relevant landlord".

I accept the second part of the definition which provides a qualification. But conduct,
"which is capable of causing nuisance or annoyance to any person",
is an extremely wide definition from any perspective. In Committee we tried to tighten up the measure. My "runner" at that time was "persistent and unreasonable behaviour". The use of the word "persistent" drew the fire of the noble Baroness., Lady Dean of Thornton-le-Fylde, who rightly said that occasionally anti-social behaviour could be so bad that simply one instance of it was beyond all reasonable behaviour. I have removed the word "persistent" and refer simply to "unreasonable behaviour". Some of the other definitions which we shall hear about in a moment may be more favourably considered. However, what we are relying on here are the courts. I have immense faith in the courts; they will have to decide these matters if push comes to shove. I do not doubt that they will decide the matter sensibly. We are fortunate that we live in a sensible, law-abiding country and we have a very good system of magistrates' courts where decisions and justice are sensibly administered.
However, I still think that legislation should say what it means to say rather than say something and rely on the good sense of a third party to administer it appropriately. My Amendment No. 10 seeks to insert the word "unreasonable" so that the Bill would read:
"This section applies to unreasonable conduct—
"(a) which is capable of causing nuisance or annoyance to any person".
I beg to move.
3.45 p.m.
Lord Clement-Jones: My Lords, I wish to speak to Amendments Nos. 13, 11 and 47. In Committee we had a short debate on similar amendments to Amendments Nos. 11 and 13. An amendment similar to Amendment No. 47 was tabled but not spoken to.

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I believe that it is common ground across the House that a person with an autistic spectrum disorder can sometimes display challenging as well as obsessive and ritualistic behaviours. That may include stereotyped movements, poor awareness of personal space, repetition of strange sounds and words, lack of flexibility of thought or becoming very upset or angry because of changes in routine. These behaviours could be interpreted as being anti-social. In Committee we on these Benches expressed concern that the provisions in this Bill could lead to people with autism being wrongly stigmatised or, indeed, criminalised. That applies both to anti-social behaviour injunctions under Part 2 and to parenting orders under Part 4.
If the Bill is passed in its current form, we are extremely concerned that there could be more examples of parents who have a child with an autistic spectrum disorder receiving an anti-social behaviour order. In Committee I referred to parents who received an anti-social behaviour order because their son had trampolined in his own garden and made what were termed "strange noises" which caused distress to neighbours. Under the wording of new Section 153A to the Housing Act 1996, which refers to conduct,
"which is capable of causing nuisance or annoyance",
that kind of behaviour is almost bound to fit into that definition.
When pressed in Committee after a fairly tense debate, the noble Lord, Lord Bassam of Brighton, said:
"We understand the sensitivity required when dealing with people who suffer from particular syndromes, which contribute to their appearing in court, to be dealt with in the way in which this legislation will deal with them. I do not want the noble Lord to leave thinking that I am patronising, a bad cop or unsympathetic—I am not usually. I understand the points entirely".—[Official Report, 11/9/03; col. 499.]
I think no worse of the noble Lord for reading his ministerial brief and then going off piste and drawing on his personal experience from his time as a councillor. I appreciated that as, after all, it is experience on the ground which is so important in this respect. I appreciated the fact that he addressed the point. However, the noble Lord needs to go further and really address the point in the Bill.
In a letter to the National Autistic Society the Government have stated that the courts,
"will consider everything relevant to the case, including reasons for the behaviour".
However, an innocent person with autism should not be subjected to legal proceedings in the first place. I do not believe that it is the Government's intention to criminalise people with autism, but without appropriate training and the right definition in the Bill, police and other front-line professionals will not be able appropriately to manage a situation involving an individual with autism.
In Committee a number of noble Lords made the helpful suggestion that rather than go all the way in terms of mens rea towards insisting that there should be intention—I understood the points that were made
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in that respect—the concept of recklessness, which is in a sense halfway between negligence and intention, might be usefully inserted into the definition to differentiate between those whose behaviour is knowingly anti-social and those whose behaviour is directly related to their disability.
I know that draftsmen and lawyers, being one myself, much appreciate precedent in this respect. The use of the word "reckless" in legislation is legion. I have a whole series of definitions such as the Criminal Damage Act 1971; Nuclear Material (Offences) Act 1983; Sexual Offences Act 1956; Terrorism Act 2000; Theft Act 1978; Vehicles (Crime) Act 2001; Bankruptcy (Scotland) Act 1985; the very recent Communications Act 2003; Anti-terrorism Crime and Security Act 2001; Ancient Monuments and Archaeological Areas Act 1979 and Protection of Badgers Act 1992. There are quite a few precedents here. Without bludgeoning the Minister into submission, I hope that I have made the point that the concept of recklessness is extremely common. It is the kind of precision tool that is required in these circumstances. I very much hope that the Minister and his colleagues will be considerably more sympathetic to these two sets of amendments than they were in Committee.
Lord Elton: Perhaps I may put a thought in the Minister's mind. Far be it from me to try to judge between the desirability of my noble friend's amendment and those of the noble Lord, Lord Clement-Jones. But both attach the requirement of reasonableness to the behaviour. I have met people whose mission in life is to be annoyed and upset. In fact, it is addressing only one half of the problem. At Third Reading there should be some requirement for reasonableness in the person who is to be annoyed. When I was a child everybody who was annoyed with me was unreasonably annoyed. But now I regret that as an adult and as a man of more mature judgment, I still find some people's annoyance with me to be unreasonable and that should be somewhere in the Bill.
Baroness Hamwee: Perhaps that will be the Mildrew amendment. I speak to the amendments which are in my name. I notice that the noble and learned Lord, Lord Brightman, is longing to intervene. It may be more helpful to the Committee if he is able to bring his expertise to all the amendments rather than to just the ones which have been spoken to so far.
I speak to Amendments Nos. 12, 14, 19, 27, 28, 29, 30, 32, 33 and 34. The general point is the same. Amendment No. 12 is to apply to the new Section 153 A conduct which is capable of causing nuisance or serious or repeated annoyance. The words "serious or repeated" are the subject of the amendment. Following the entirely correct point made by my noble friend Lord Phillips of Sudbury, who made this proposal originally, we have not sought to qualify the term "nuisance". I will come to that in a moment.
Amendment No. 14 would narrow the condition required to be fulfilled to conduct fitting the description which I have just given. Amendment No. 19 is to apply

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the same description to conduct which entitles a landlord to apply for an injunction. Amendment No. 27 is similarly to define or limit behaviour which is the subject of the 1985 and 1988 Housing Acts, which deal with possession proceedings. Amendments Nos. 28,29 and 30 similarly are concerned with the annoyance which the court must take into account when it is considering the effect of a proposed possession order under the 1985 Act. Amendments Nos. 32,33 and 34 are similar amendments regarding the 1988 Act. I was not quick enough to spot that, for consistency, I should have tabled the same amendment to the Minister's Amendment No. 69.
At the previous stage of the Bill we were challenged by the Minister, as my noble friend Lord Clement-Jones, has said. He felt we were being rather soft. We were aiming to get the legislation to express accurately what the Government mean.
I do not regard it as an adequate response to a problem which my senior partner would have called sloppy drafting. We were told that "nuisance" and "annoyance" were adequate—a reliance on the judiciary. To say that it is sloppy drafting is not intended as a criticism of the Parliamentary counsel who dealt with it. I believe that it is slightly sloppy thinking because counsel will have reflected the Government's instructions.
The Minister told us to take a reality check. We have done so and we still find the Bill wanting in that regard. As my noble friend Lord Phillips of Sudbury said, "nuisance" is a term which is well-known in law and in its application by the courts. It does not need qualifying and should not be so. But "annoyance" is a term not known to common law in the same way. It is unsupported to any great extent by case law. It is not defined or described by the Bill. It is all very well to say that the courts will not grant an injunction or make a possession order if the behaviour in question is merely irritating. But I do not believe that we should be promoting legislation which allows for a disproportionate response and which relies on the courts to apply the reasonableness which the Government should apply in the first instance.
"Annoyance" is different from "nuisance", which is self-evident, otherwise it would not be necessary to use the two terms. It is evident to me that it is something less than "nuisance". The noble Baroness, Lady Scotland, referred to it in a letter, for which I thank her. She wrote,
"Although "annoyance" is perhaps something less than "nuisance" the difference is slight".
She provided details of some cases which have considered the term "annoyance", but I believe only three referred to it rather than "nuisance". That is not very many considering our judicial history. The most relevant concerns the case of Tod-Heatly v Benham 1988. Lord Justice Bowen stated,
"the expression 'annoyance' is wider than 'nuisance', and a thing that reasonably troubles the mind and pleasure—not of a fanciful person or of a skilled person who knows the truth"—
so perhaps not Victor Mildrew—
"but of the ordinary sensible inhabitant of a house, seems to me to be an annoyance, although it may not appear to amount to a physical detriment to comfort".
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That is a pretty low test to pass and too low for the legislation we are considering. I thank the Minister for the letter, but it passes the buck to the judiciary in an inappropriate way. It is not necessary because we have found ways of dealing with the term which strikes the right balance on the face of the Bill.
Finally, in her letter the noble Baroness, Lady Scotland, said,
"It would not be in the landlord's interest to proceed with cases based on trivial complaints".
That is quite right. She went on to say,
"Local authority landlords could lay themselves open to judicial review if they misused their powers in this way".
That is heading into a porridge of confusion which we can avoid. I hope that the Minister will take the suggestions which are being offered.
4 p.m.
Lord Brightman: My Lords, I must confess that I am a little confused by the proposed amendment. As the subsection stands, it reads:
"This section applies to conduct—
(a) which is capable of causing nuisance or annoyance to any person".
The amendment would read:
"This section applies to unreasonable conduct—
(a) which is capable of causing nuisance or annoyance to any person".
Like the late Mr Fowler, I am not enamoured of adjectives unless they are essential, but I wonder whether the noble Lord, Lord Dixon-Smith, could help by giving an example of reasonable conduct which is capable of causing nuisance or annoyance and unreasonable conduct which is capable of causing nuisance or annoyance. I could then see whether I feel that the adjective would satisfy the standards of Mr Fowler.
Lord Phillips of Sudbury: My Lords, I thought that my noble friend Lady Hamwee put the case extremely well and there is little more that needs saying. The difference between being irritated and annoyed is no difference at all. The noble Baroness, Lady Scotland, wrote after the previous debate when I moved the amendment. It is fair to say that the judgment of landlords is not always perfect. It is by no means impossible that if the test remains simply that of annoyance, there could be a feud between tenants leading to sustained pressure on the social landlord to bring action against one or more tenants on the grounds of, "I and my family are being annoyed".
A simple issue of good parliamentary draftsmanship is involved, while accepting that the issue derives from the instructions given by government. It is not good parliamentary draftsmanship to harness together nuisance on one hand and annoyance on the other. That is so largely for the reasons explained by my noble friend Lady Hamwee; that nuisance is a well-defined term. Moreover, the nuisance test at common law is strict. One cannot waltz into court and claim nuisance on the kind of grounds that will be available if, as an alternative, you can plead on grounds of

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annoyance. That is my main complaint. Left on its own, annoyance could encourage thoroughly ill-considered, ill-advised and sometimes pressured court action on behalf of people who are grinding an axe.
Then one must consider what would be the position of the judge if he or she had to apply Section 153A without the amendments now being argued for. There is a limited discretion on the part of the judge if annoyance, plain and simple, is proven. I believe that we have a duty to try to make life as easy and practical as possible for the judiciary. That effect would be achieved by inserting "serious or repeated". That formula is common in employment contracts and is used to overcome precisely the problems we are contending with here. Dismissal is frequently expressed in contracts of employment as being possible where there is a serious or repeated breach of the terms of the contract. One realises that many terms of a contract, if breached on their own, should not be such as to entitle a severe remedy.
We are dealing here with severe remedies. We are dealing with injunctions and, in subsection (6), the fact that once the injunction has been granted the person against whom it has been granted shall not,
"engage in conduct to which the section applies".
I suggest that not only must judges construe what "annoyance" means in this context, but so will members of the public. I believe that they do understand "serious or repeated" annoyance. If no qualification is made in the manner suggested, someone against whom there is an injunction is left in a wholly unsatisfactory position.
Finally, I agree with the noble and learned Lord, Lord Brightman, in the challenge he posed to the noble Lord, Lord Dixon-Smith. It was a nifty challenge because my good friend Lord Dixon-Smith will have some problem in answering it effectively. Furthermore--dare I say it?—considering the other amendment tabled by my noble friend Lord Clement-Jones, inserting the words,
"reckless as to whether it causes",
annoyance, I am not sure that it is an easily applied test. The test of recklessness might be a little too high in relation to what I understand the legislation is directed at. "Reckless" is a very high test.
We on these Benches do not want to frustrate or impede the underlying intent of the clause, with which we wholly agree. I am not in business to shoot down amendments from our own side. However, I merely put in the mind of the House and the Minister that if he had to choose between the three amendments tabled, this might be the more practical and concrete.
Lord Campbell of Alloway: My Lords, it seems to me that the distinction between "nuisance" and "annoyance" is absolutely clear. "Nuisance" has ever been one of the old forms of action in tort: "annoyance" has not been. We are here dealing with a statute. If you are using "nuisance" you do not need to qualify it. But of course, as the noble Lord said, you do
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not just walk into court and obtain an injunction saying that something is a nuisance. It must be a substantial nuisance; a reasonable complaint.
"Annoyance" is different. It must be qualified as being reasonable. If you do not, you are placing too high a burden and it would be impossible to administer fairly. That is only my opinion.
Lord Hylton: My Lords, when the Minister comes to reply for the Government, will he bear in mind that Members of the House on all sides want to restrain anti-social behaviour, but to do so without many unnecessary cases having to come before the courts?
Lord Bassam of Brighton: My Lords, this has been a wide-ranging discussion about definitional issues and I understand why that might be the case. Colleagues on the Liberal Democrat Benches were irritated— perhaps slightly wound up—by some of the responses given during the Committee stage. They are perhaps annoyed, finding it a nuisance, worried about it being trivial and certainly they do not want to be reckless today.
I can well understand the noble and learned Lord, Lord Brightman, being confused. Having listened to responses from the Liberal Democrat Benches, I am slightly confused as to where they are coming from and not altogether certain whether they are playing on the same football field. I was not entirely convinced— ultimately, not convinced at all—by their range of arguments, interesting though they were.
I thought that the noble Baroness, Lady Hamwee, began to put her finger on the issue. Initially, she appeared to be concerned about sloppy draftsmen. She then let the parliamentary draftsmen off the hook by saying that it was sloppy thinking. Presumably, she believes that it is sloppy policy thinking. I disagree with that. This is not sloppy policy thinking—we know exactly why we are here and what we are trying to achieve.
I can see that the Liberal Democrats in particular have a difficulty with this whole approach and strategy and with the Government's drive against anti-social behaviour. What they are trying to do—and I can understand why they are doing it—is to pick away at the policy. That is what they do not like—they do not like the thinking behind what is here.
Lord Phillips of Sudbury: My Lords—
Lord Bassam of Brighton: My Lords, perhaps the noble Lord will let me finish the point. I shall deal in turn with his comments, and I remind him that we are on Report. I understand some of the amendments in terms of their desire for perfection and for getting things absolutely right. I certainly understand why the noble Lord, Lord Clement-Jones, made his observations. He rightly said that I was sympathetic to the points that he made. It is simply that, ultimately, I disagree with the means that he chooses to achieve a desirable understanding of people who have a

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condition such as autism or Asperger's syndrome, and so on. I well understand that and the practical difficulties that it can create for the courts.
I want to go through very carefully—
Lord Phillips of Sudbury: My Lords—
Lord Bassam of Brighton: My Lords, I am reluctant to give way. This is a long group of amendments containing many different points, and I want to give them time and pay due respect to them. I am not sure that I can do so if I am constantly interrupted by the noble Lord. 1 shall give way this once.
Lord Phillips of Sudbury: My Lords, I am most grateful. The noble Lord will not be constantly interrupted so long as he does not make misleading remarks, such as he has just done. There has been no suggestion at all from this side that we are in disagreement with the policy objective. In fact, I believe that everyone has gone out of their way— during this and the previous stage of the Bill—to say that we agree with the policy objective. Therefore, I hope that the Minister will not base his argument on a misrepresentation of where we stand.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord. Am I now receiving fulsome support for our anti-social behaviour strategy? If I am, then that rather differs from the impression that I had previously. However, perhaps I may make progress.
I believe that Amendments Nos. 10, 11, 12, 13, 14 and 19 are all in the name of the noble Lord, Lord Dixon-Smith. Essentially, they seek to make it harder for social landlords to obtain injunctions forbidding anti-social behaviour. New Section 153A deliberately widens the definition of "anti-social conduct" to include behaviour that is "capable" of causing nuisance and annoyance. That will enable social landlords to be more proactive in their management of anti-social behaviour and, in our view, will avoid legal arguments about the exact severity or likelihood of anti-social behaviour causing nuisance and annoyance.
Amendment No. 10 introduces a new criterion which must be proved in court: that the behaviour complained of is unreasonable. We do not consider that amendment to be necessary. When an application for an injunction comes before the court, the judge considers whether it is reasonable, given all the circumstances, to grant that injunction. That will include a consideration of whether the behaviour was reasonable.
There is no objective test of what is "reasonable behaviour" in all circumstances. As another noble Lord stated, something may be reasonable in a house but not in a flat. It may be reasonable at 6.30 p.m. but unreasonable at 10.30 p.m., 11.30 p.m. or midnight. It always depends on context, and that is what judges will have to consider.
The amendment would also affect the court's power to grant a demotion order and force it to consider "reasonableness" twice—first, in relation to the
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conduct alone and then in relation to the order as a whole, as required by new Section 82A(4) of the Housing Act 1985 and new Section 6A(4) of the Housing Act 1988.
We believe that the concept of reasonableness in respect of both injunctions and demotion orders applies in relation to whether it is reasonable to grant the order in all the circumstances of the case. That is already reflected in the level of discretion given to the courts by the provisions introduced by Clauses 13 and 14 of the Bill
Amendments Nos. 11 and 13 narrow the circumstances so that the perpetrator of anti-social behaviour needs to be actively reckless rather than simply acting in a way capable of causing nuisance or annoyance. The word "reckless" implies some sort of test as to the defendant's state of mind, as appears in criminal cases. We believe that inquiring into the state of mind of the perpetrator is particularly unhelpful. If someone plays music until 4 a.m. and disturbs his neighbour, then the neighbour does not care whether the perpetrator has thought about whether he might be causing nuisance or annoyance to those around him, or even that he might have thought about it but chose to ignore the possibility. He simply wants the music to stop.
These amendments suggest that landlords should be required to provide evidence akin to that required to establish recklessness in criminal proceedings in order to obtain a civil injunction. We do not believe that that is right. In fact, in a sense, I agree with the point made by the noble Lord, Lord Phillips of Sudbury. We do not consider that higher test to be the right one in those circumstances.
An injunction is simply an order of the court asking someone to stop doing something. It is not a punishment in itself, although I believe that it has been misinterpreted by some as being that and, accordingly, it does not need to be restricted in the way that it can be necessary to restrict criminal sanctions. Mixing up civil and criminal concepts in the way that the amendment would—and it has been suggested that it might—has the potential to make the application of anti-social injunctions far too restrictive and would lead civil courts into highly complex inquiries as to the state of mind of the perpetrator. I do not consider that to be helpful.
I want to make one or two other comments, in particular with regard to the observations made by the noble Lord, Lord Clement-Jones, whose contribution I greatly respect. I can well appreciate the difficult circumstances that might arise from these processes being put in place when someone who suffers from a form of autism or Asperger's syndrome, or one such behavioural syndrome, is introduced into the court scenario.
I believe that the noble Lord was alluding to the fact that much of the work and preparation in bringing forward these orders must be undertaken. During that process, the authorities involved—whether they be the police, the housing authority or the local authority— will want to give very careful thought to the

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appropriateness of going along this route. I believe that is where the important work will be done. Because of that, matters such as guidance, the way in which the guidance is phrased and the way in which we, as government, consult on the quality of that guidance will make a profound difference.
I do not believe that chiselling away to put perfect words on the face of the Bill is necessarily the right way to approach the problem. However, I understand the points that the noble Lord made. We certainly understood them when he made them at an earlier stage in the Bill, and those considerations will have to be carefully thought through. Therefore, it is not that there is a lack of interest or a lack of seriousness in relation to this matter; I simply do not believe that this is the appropriate way to deal with it. However, I can see the temptation to do so and I applaud the noble Lord's efforts to bring forward that argument into this debate because clearly it is an important consideration.
Perhaps I may go into more detail and turn to Amendments Nos. 12, 14 and 19. Again, these amendments narrow the circumstances in which an anti-social behaviour injunction can be ordered. They require the conduct to be a nuisance or, if it is an annoyance, to be serious or repeated.
Amendments Nos. 27, 28,29, 30, 32, 33 and 34 place the same additional consideration upon the judges in deciding a possession case. The judge will be required to consider separately whether the conduct comes within the meaning of nuisance or annoyance and, if it is an annoyance, whether it is serious or repeated. The effect of these amendments would be to split up a phrase which already has legal meaning. "Nuisance or annoyance" is a well-established legal test which the courts are perfectly comfortable to use. We do not believe that it is necessary to re-write it. The amendments distinguish between nuisance and annoyance in an artificial and unhelpful way. When the courts consider nuisance and annoyance, they automatically take into account whether the conduct has been serious and on how many occasions it has occurred. I argue that the proposed amendments introduce extraneous new tests which, in reality, would achieve little.
Amendment No. 47 in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Linklater, would change the definition of "anti-social behaviour" for the clauses relating to parenting orders and contracts. That would make parenting orders under the Bill inconsistent with those under the Crime and Disorder Act. The amendment could also hamper agencies seeking to improve people's daily lives and the communities in which they live.
I also suggest to your Lordships that this change is not applicable or necessary in the case of parenting orders or contracts because the child or young person is not on trial. Indeed, these free-standing parenting orders are intended as an early form of intervention to help to change behaviour so that children do not end up in court.
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The Bill allows parenting orders and contracts to be used to tackle misconduct by children below the age of criminal responsibility who are deemed not to have the moral and intellectual maturity to understand the consequences of their actions. The amendment, by requiring recklessness to be proved, could prevent parents of under 10 year-olds, as well as parents of older children, from receiving from youth offending teams the early intervention support that they need before behaviour becomes entrenched and leads on to more serious problems. That amendment could have a very unfortunate consequence.
I detected head-shaking and nodding on the use of the term "nuisance and annoyance", so perhaps I should explain the situation more fully. We consider the use of the term "nuisance and annoyance" to have a useful history. It is used in existing injunctions and it is worth reminding the House that those injunctions exist under Sections 152 and 153 of the Housing Act 1996.1 believe I made that point in Grand Committee so there is an understanding there. Of course, the term is also used in possession proceedings under the Housing Act 1985 and more recently under the Housing Act 1988.
I do not accept that the term is not understood by the courts; they understand it. Placing the words together makes it clear to the courts that the word "nuisance" is being used in a usual everyday sense, not as a legal, technical form of jargon. The courts do not usually consider words in isolation from one another. It is clear from the cases that the "nuisance or annoyance" must be such as to annoy an ordinary, reasonable person, not one who is unusually sensitive. I believe that the terminology is well understood by the courts and it is for that reason that we want to insist on it in this legislation.
The noble Lord, Lord Hylton, in his short observation, tried to suggest that we are talking about behaviour that is used to restrain. That is right. I believe that he was trying to suggest to us that we should reflect on that and ensure that we are not excessive in what we are trying to achieve here. We have thought very carefully about the powers that we wish to take in this legislation. We believe that we are on the side of the public. This is not a populist gesture on our part. Our proposals are a response to a very real and perceived set and range of problems. We have tried to hone the legislation and its wording so that they are perfected and match particular circumstances. That is why we have adopted this approach. In bringing forward this legislation we have listened carefully and we have consulted widely and extensively on the way in which it will work and we believe that we have support for this general approach.
If during the course of our exchanges on this part of the Bill we have, at times, irritated some Members of your Lordships' House, it is because we believe that we have the matter about right. We want to ensure that we can get the Bill through so that people are provided in their homes and in their communities with the right level of protection from what most in your Lordships' House would accept is unreasonable and anti-social behaviour. If we have better law that can be used

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flexibly, it can be used for the benefit of the public. Having heard those points I hope that the noble Lord will feel able to withdraw the amendment.
Lord Hylton: My Lords, before the noble Lord sits down, can he say why the Bill at line 18 on page 10 reads,
"is capable of causing nuisance"?
Would it not be better to say, "conduct is causing nuisance"? Would that not make the text more precise? This point was raised at a previous stage. If the noble Lord has difficulty with the point, perhaps he will write to me.
Baroness Hamwee: My Lords, before the noble Lord sits down—his calf muscles must be getting a little tired—will he confirm that although in the major part of his remarks he has referred to "nuisance and annoyance", the terminology on the face of the Bill is "nuisance or annoyance"? Does he wish to deal with "nuisance and annoyance" or "nuisance or annoyance"? Perhaps he will tell the House whether guidance on the application of these sections of the Bill will tell landlords how the term "nuisance and/or annoyance" has been applied by the courts in the past. The Government appear to be relying heavily on the experience of how courts have applied the term.
Lord Bassam of Brighton: My Lords, first, I should remind the House that this is not the way to proceed on Report. The point raised by the noble Baroness will have to be carefully detailed in guidance. I have no doubt that that will be the case and that there will be important consultations on that. There will be a degree of interpretation. I do not believe that it is right for me to say more than that.
Lord Dixon-Smith: My Lords, I am extremely grateful to the Minister for that reply. He has my sympathy because he thinks—as he is obliged to sitting where he sits—that the Government's intentions are perfect and that the Bill is as near ideal as the Government can make it; therefore, who are we to criticise it? However, our problem is that we all know a camel when we see one, but I doubt whether we would all recognise the verbal description that each of us might give to a camel. So we have a little difficulty.
The noble and learned Lord, Lord Brightman, asked for an example of reasonable behaviour that might cause annoyance—I think I have it the right way round. I would give him an example that I would not expect him to have come across in his experience because I believe that he has not been as active in the political arena as many noble Lords in the House.
Lord Brightman: My Lords, forgive me for interrupting. I wanted an example of reasonable conduct causing a nuisance or annoyance and an example of unreasonable conduct causing a nuisance or annoyance. According to the Marshalled List, the adjective "unreasonable" appears before the word
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"conduct" and not before the words "nuisance or annoyance". Perhaps I may have an example of each. I am sure it could be done very simply.
4.30 p.m.
Lord Dixon-Smith: My Lords, as I said, I would not expect the noble and learned Lord to have such experience in his locker. I am grateful to my noble friend Lord Elton for this illustration. An example of what I would regard as reasonable behaviour that can cause extreme annoyance—which is why in the past some of us may have done it—would be putting up a Conservative poster at election time in a known Labour garden. I guess that most of us would have done that in our youth. An example of unreasonable behaviour, which of course probably causes equal annoyance, is fly-posting the whole place with election posters. There is a clear distinction between the two.
We have a problem here. I am not sure whether the Minister has completely resolved the issue. We need to exclude from what I would call "the general debate", the specific points introduced by the noble Lord, Lord Clement-Jones, in relation to people with autistic and possibly other mental health problems, or, indeed, people with any health problem. We should exclude them from the argument, although as the Bill is drafted they are relevant to it. That is the problem that we face.
Our difficulty is the camel syndrome. I accept that the Government's intentions are entirely honourable and straightforward, and that they are trying their very best to produce a provision that will work. I accept that nuisance and annoyance in various forms is already in existing law and that the courts are now used to dealing with the problem. We are talking, however, about anti-social behaviour. That is what we are trying to define.
Noble Lords will have to think carefully about what the Minister has said because I am not sure that he has satisfied us. Equally, as our existing forms of words are not acceptable to the Government, I am not sure whether we can devise others that will be. They must be satisfactory not just to us but also outside this House and in courts of law. We need to consider everything in that context. We still have a little problem. The Minister has done his best to allay it, but I am not sure that he will have satisfied us. We shall study very carefully what he has said. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 11 not moved.]
Baroness Hamwee moved Amendment No. 12:
Page 10, line 8, after "or" insert "serious or repeated"
The noble Baroness said: My Lords, I beg to move.
The Deputy Speaker (Lord Ampthill): My Lords, the Question is that Amendment No. 12 shall be agreed to. As many of that opinion will say, "Content". To the contrary, "Not-Content". I think the "Not-Contents" have it. Content? Clear the Bar.
4.32 p.m.
On Question, Whether the said amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 37; Not-Contents, 87.

Division No 1

CONTENTS

Addington, L.[Teller]

Monson, L.

Allenby of Megiddo, V.

Newby, L.

Avebury, L.

Oakeshott of Seagrove Bay, L.

Barker, B.

Onslow, E.

Beaumont of Whitley, L.

Phillips of Sudbury, L.

Brougham and Vaux, L.

Razzall, L.

Clement-Jones, L.[Teller]

Rennard, L.

Dholakia, L.

Roper, L.

Hamwee, B.

Scott of Needham Market, B.

Harris of Richmond, B.

Sharp of Guildford, B.

Hylton, L.

Shrewsbury, E.

Laird, L.

Shutt of Greetland, L.

Swinfen, L.

Lester of Herne Hill, L.

Taverne L.

Linklater of Butterstone, B.

Thomas of Gresford, L.

Livsey of Talgarth, L.

Thomas of Walliswood, B.

Maddock, B.

Tope, L.

Miller of Chilthorne Domer, B.

Walmsley, B.

Molyneaux of Killead, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Golding, B.

Ahmed, L.

Goldsmith, L.

Alli, L.

Gould of Potternewton, B.

Amos, B. (Lord President)

Graham of Edmonton, L.

Andrews, B.

Grocott, L. [Teller]

Archer of Sandwell, L.

Harrison, L.

Ashton of Upholland, B.

Hayman, B.

Bassam of Brighton, L.

Hilton of Eggardon, B.

Berkeley, L.

Howarth of Breckland, B.

Bernstein of Craigweil, L.

Hunt of Kings Heath, L.

Billingham, B.

Janner of Braunstone, L.

Blackstone, B.

Judd, L.

Borrie, L.

Lea of Crondall, L.

Brett, L.

Macdonald of Tradeston, L.

Brightman, L.

McIntosh of Haringey, L.

Brooke of Alverthorpe, L.

McIntosh of Hudnall, B.

Brooks of Tremorfa, L

MacKenzie of Culkein, L.

Burlison, L.

Mackenzie of Framwellgate, L.

Carter, L.

Masham of Ilton, B.

Chandos, V.

Massey of Darwen, B.

Christopher, L.

Morgan, L.

Clark of Windermere, L.

Parekh, L.

Clinton-Davis, L.

Patel, L.

Condon, L.

Pendry, L.

Crawley, B.

Pitkeathley, B.

Davies of Oldham, L.[Teller]

Puttnam, L.

Desai, L.

Ramsay of Cartvale, B.

Donoughue, L.

Randall of St. Budeaux, L.

Dormand of Easington, L.

Rendell of Babergh, B.

Dubs, L.

Richard, L.

Eatwell, L.

Rooker, L.

Elder, L.

Sainsbury of Turville, L.

Evans of Temple Guiting, L.

Sawyer, L.

Falconer of Thoroton, L. (Lord Chancellor)

Scotland of Asthal, B.

Sewel, L.

Farrington of Ribbleton, B.

Sheldon, L.

Faulkner of Worcester, L.

Simon, V.

Finlay of Llandaff, B.

Stallard, L.

Fowler, L.

Stone of Blackheath, L.

Gale, B.

Temple-Morris, L.

Gibson of Market Rasen, B.

Tenby, V.

1796

Turner of Camden, B.

Whitty, L.

Warner, L.

Wilkins, B.

Whitaker, B.

Williams of Elvel, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.44 p.m.
[Amendments Nos. 13 and 14 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 15:
Page 10, line 24, leave out "locality of the" and insert "neighbourhood of"
The noble Lord said: My Lords, I feel that this group of amendments will take a little less time than the previous one, but they require careful explanation. Amendments Nos. 15 and 16 have two effects: they replace the word "locality" with the word "neighbourhood"; and they change the words "the housing accommodation" to "housing accommodation".
Landlords have a responsibility for the protection of the communities who live in and around their housing stock. As I argued earlier, that responsibility does not stop at a particular distance from a particular unit of housing. Nor is the responsibility to non-residents in the area limited to protecting certain people carrying out certain activities in relation to individual premises. Landlords have a wider responsibility to the community and the neighbourhood.
Amendments Nos. 15 and 16 emphasise that and make clear that it is the landlord's stock as a whole that is relevant, not just individual premises. Amendment No. 21 makes clear that "housing accommodation" does not refer to single premises. Rather, it refers to the whole of the landlord's stock in a particular neighbourhood and encompasses, for example, the common parts of an estate.
I turn to Amendments Nos. 69 and 140. Other parts of the Bill provide strong powers for social landlords to seek anti-social behaviour injunctions. However, there are times when anti-social behaviour will not fall within the responsibility of social landlords. In those cases, we want to ensure that local authorities have sufficient powers to tackle anti-social behaviour more generally within their area.
Where anti-social behaviour injunctions are not available, the local authority can use other powers, including applying for an injunction under Section 222 of the Local Government Act 1972. Local authorities already use Section 222 to deal with anti-social behaviour, including to prohibit the activities of drug dealers or to obtain injunctions to prohibit assault or trespass to protect their staff. However, practitioners have expressed concern that such injunctions cannot be strongly enforced as easily as can housing injunctions. We share the desire to see that as wide a range of people as possible may be properly protected, and have listened to their concerns.
The purpose of the amendments is to ensure that injunctions that prohibit anti-social behaviour obtained by local authorities in any proceedings can be properly enforced. Where the conduct prohibited includes violence, threatened violence or a risk of significant harm, we want to give the courts the right to attach a power of arrest to the injunction.
The changes that the amendments make is modest, but the practical effect may be significant. Amendment No. 140 provides that the provision will be commenced in England by the Secretary of State, and in Wales by the National Assembly for Wales. That is ample explanation. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 16:
Page 10; line 26, leave out "locality of the" and insert "neighbourhood of"
On Question, amendment agreed to.
[Amendment No. 17 not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 18:
Page 11, line 7, at end insert "other than the home of the person"
The noble Baroness said: I shall speak also to Amendment No. 20. In the long group led by Amendment No. 10, I wondered whether the Minister's notes for Report were headed not only, "Resist", but "Take a swat at the Liberal Democrats and suggest that they do not like the policy", when all that we are trying to do is to improve the Bill; we do not oppose the policy.
Having got that off my chest, I turn to the amendments, which were tabled to ask the Minister to explain what is achieved by excluding someone from his home when what is sought to be remedied may be dealt with by remedies elsewhere. I immediately thought of the example of domestic violence, where one might indeed suggest that the perpetrator of violence should be excluded from his—it is normally his—home; but that does not seem to be what the Bill is aimed to achieve.
There are other sanctions than those provided by the Bill against the perpetrators of anti-social behaviour. As I said, I do not follow what is intended to be achieved by excluding an individual from his home by means of injunction. If necessary, that can be achieved by possession proceedings.
We are all of course aware—although we do not mention it on every group of amendments—that the consequence of such injunctions or possession proceedings may well be homelessness. Creating homelessness cannot have any of the benefits intended by the Bill. I do not need to describe the consequences: the social exclusion of individuals and the real problems that may contribute to a fast, vicious downward spiral.
The legislation affects those living in social housing. It emphasises large differences between those in social housing and owner-occupiers. I am sure that, as a group or class, owner-occupiers are not immune to
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conducting themselves in an anti-social manner. If the intention is to prevent anti-social behaviour by making anti-social behaviour injunctions an alternative to possession proceedings, does not that power defeat the legislation?
I hope that the Minister will assist the House with an explanation of what the provisions I am probing with my amendments are aiming at. I beg to move.
Lord Bassam of Brighton: My Lords, the noble Baroness explained the impact of her amendment expertly as always. Its effect would be to remove the ability to exclude a person from their home as part of a Clause 13 injunction. I appreciate that the noble Baroness may feel that excluding someone from his or her home is a very strong power. She is right. It is a very strong power. However, it is a crucial part of the overall protection offered by the injunctions. In the most serious cases, where people within a neighbourhood require immediate protection from violent or threatening behaviour, or forms of harm such as racial or sexual harassment, it is an appropriate remedy.
Having said that, of course there will be safeguards against the misuse of the power. It will be available only where there has been violence; a threat of violence; or there is a significant risk of harm to a person mentioned in new Section 153A(4). Judges will grant an injunction excluding a person from their own home only where they consider it necessary and proportionate, given all the facts of the case. There will be no change to long established tests that courts apply when granting injunctions. A power of exclusion will not be used lightly by the judiciary and it is certainly not the case that in every instance of violence, the threat of violence, or a significant risk of harm, an excluding injunction will be granted. The clause is clear that a power is being given to the courts, not an obligation imposed on them, which is an important point to bear in mind.
The amendment would have an unintended consequence. Those living in the next street to an anti-social tenant could, where the court was satisfied that there had been a threatened use of violence against or that there was a real risk of harm to residents of that street, be protected from contact with a violent or abusive person by way of an antisocial behaviour injunction. Those living in immediate proximity to that anti-social tenant could not be protected by way of injunction. I suggest that direct neighbours need this protection just as much as those living marginally further away. I am sure that the noble Baroness did not intend such an anomaly to arise as a result of her amendment. Allowing the amendment to pass would mean that those often in most immediate need—those living in the closest proximity to an anti-social tenant—could not be adequately or properly protected.
I do not need to remind the House that social landlords face a huge problem in their attempts to deal with anti-social behaviour: the reluctance of victims and witnesses to come forward and give evidence in court, which makes their job even more difficult. Even

1799
if there is no explicit intimidation, the possibility of having to confront that person as one comes and goes from one's home can be hugely stressful. I am sure we have all experienced such cases. Under the clause as it stands, the perpetrator can be immediately excluded from the place where they have been causing problems. Victims and witnesses who live in close proximity to the perpetrator will be protected from such intimidation and given immediate relief in the run-up to a court case. That should, in turn, increase attendance at court by victims and witnesses and result in more successful outcomes.
As we now seem to agree that the legislation is worthy of support, I hope we will agree that that is an aim worth pursuing. The noble Baroness asked whether the injunction would exclude only the perpetrator. Eviction would affect the whole household. I hope that explanation clarifies the matter.
Baroness Hamwee: My Lords, the Minister elegantly did it again. We have not challenged this part of the Bill and this policy at this stage or any other. In his rationale for the provisions he relied on the need to protect victims of anti-social behaviour who live closest to the perpetrator. I am not sure whether that includes those who live in the same premises as the perpetrator. He gave the example of close neighbours. Where he confused me is that it is still open to the courts to make an injunction against behaviour without making an injunction against someone living in a particular residence. I am trying to find a way by which I can understand and justify what he is saying. It may be easier to enforce an injunction excluding someone from premises than to enforce an injunction against a series of acts of behaviour. I make the point because the Minister might want to say that is part of the Government's thinking, but he is not rising to do so.
I will read in Hansard what he said. I cannot say that I am wholly persuaded, but 1 thank him for his answer and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 and 20 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 21:
Page 12, line 14, at end insert—
"(c) in relation to a neighbourhood, the whole of the housing accommodation owned or managed by a relevant landlord in the neighbourhood and any common areas used in connection with the accommodation."
On Question, amendment agreed to.
Clause 14 [Security of tenure: anti-social behaviour]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 22:
Page 13, line 35, after "unless" insert "an anti-social behaviour injunction has previously been made against the tenant and remains in force and"
The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendment No. 24. The amendment takes us to the issue of demoted
1800
tenancies in Clause 14. As drafted, the court can make a demotion order in respect of a tenant whether or not an injunction has been made against the tenant, although the injunction cannot be made in the absence of the conduct at which it is aimed.
If an anti-social behaviour injunction is made, the person against whom it is made should have the chance to comply with it before any further sanction is applied. If the perpetrator—I do not know whether injunctee is the correct term—adheres to the terms of the injunction, why is it necessary to impose a further penalty by way of demotion of the tenancy? If there is an injunction there is already a sanction in any event against the breach of the injunction because the person in question would be in contempt of court.
There is also a sanction regarding the status of the tenancy, as the court has in any event the power to make a suspended possession order based on a complaint of anti-social behaviour in a claim for possession based on one of the existing grounds for possession. The amendments seek to give the tenant a last chance. A number of noble Lords spoke at the previous stage of the Bill about the importance of prevention and of persuading tenants who behave badly to improve their behaviour. This is part of that.
At the last stage, the Government also clarified the position with regard to right-to-buy and confirmed that a demotion would take the tenant back to square one. That had been puzzling me and I was glad to hear the Government's explanation. I considered the point and, after consultation with others, took the view that, if the objective was to prevent anti-social behaviour, the loss of right-to-buy was a logical sanction. That decision was influenced by my agreeing with comments from the Government Front Bench about prevention and changing attitudes and behaviour. The amendments would apply that approach one stage further. I beg to move.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for moving the amendment in that way and giving us an explanation of the thinking behind it. I am also grateful to her for putting on record her reflections on the effect of the demotion orders on right-to-buy. It is refreshing to know from where colleagues are coming on that issue.
The amendments would prevent the court granting a demotion order unless an anti-social behaviour injunction is already in force against the tenant. They would encourage the use of injunctions over the use of demotions. Demotion and injunctions are intended to be free-standing options which the social landlord would be able to use separately or in combination depending on what was most appropriate in the circumstances. 1 think that the noble Baroness understands that we are trying to use powers that fit the purpose and match how the problem is perceived by the victims. It may often be a good idea for landlords to seek injunctions before taking other action.

1801
In cases of low-level, persistent anti-social behaviour, however, a demotion order may be more appropriate than an injunction—the loss of the right to buy may mean more to some anti-social tenants than the imposition on them of an anti-social behaviour injunction, especially if they were about to send in their right-to-buy application form. It would not be helpful for landlords or those suffering from anti-social behaviour if the power to obtain demotions were restricted in the way suggested in the amendment.
Demoted tenancies are a new measure that act as a punishment but are also used—as the noble Baroness said—as a last chance. We know that tenants hold their security dear. They have argued ferociously for it in the past and rightly obtained it, but sometimes only the threat of the loss of that security can make them alter their behaviour. The amendments make achieving demotion a two-step process, which is in no one's best interests. It could lengthen the amount of time a community has to suffer from a particularly unpleasant form of anti-social behaviour and would waste landlords' and the courts' time and resources. That is not a sensible approach when it is already possible for a landlord to seek both remedies when it is appropriate to do so.
Finally, it would make demotion orders harder to obtain than possession orders. In those circumstances most landlords will choose to ignore demotion orders and apply for possession orders which would lead to more evictions and could increase levels of homelessness. I do not think that the noble Baroness intends that, but that could fulfil the unintended law of consequences. Having heard that explanation, I hope that the noble Baroness will reconsider her amendment and feel happy to withdraw it.
Lord Avebury: My Lords, before the Minister sits down—1 thought that he was looking a bit pained, but I genuinely want information on this point—is there anything in the Bill that requires the local authority or social landlord to serve notice on the tenant that they intend to issue a demotion order, so that the deterrent effect of the order might be felt by the tenant without having to serve it?
Lord Bassam of Brighton: My Lords, I am not sure whether that is specified in the Bill, but it may be set down in rules of procedure. If the noble Lord will bear with us, we will take that point away and make sure that he is furnished with a more precise answer.
Baroness Hamwee: My Lords, I have a feeling that, if I talk for a moment, we may have the answer— perhaps not.
The Minister said, and I hope that I wrote this down correctly, that with low-level anti-social behaviour, demotion may be the more appropriate response. I am puzzled by that. In an earlier debate, he talked about the distinction between an injunction and a possession order. He said that an injunction is not a sanction in the same way—it is not a penalty. I am not sure that what he has said on this occasion is entirely consistent. However, my noble friend raised an interesting point
1802
about how the procedures flow. We will wait for the response and examine the whole package. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee Baroness Hamwee moved Amendment No. 23:
Page 13, line 41, at end insert—
"(4A) A demotion order may contain conditions for the landlord to provide or secure the provision of support and rehabilitation services as appropriate to the tenant or a person residing in or visiting the dwelling-house who has engaged or has threatened to engage in conduct to which section 153 A or 153B of the Housing Act 1996 (anti-social behaviour or use of premises for immoral or unlawful purposes) applies."
The noble Baroness said: My Lords, in moving Amendment No. 23, I shall also speak to Amendment No. 25. The first applies to a secure tenancy and the second to an assured tenancy. The purpose of both is to give the courts discretion to include the provision of support and rehabilitation as part of the conditions of a demotion order.
In Committee in the Commons, the Minister explained—they were his words before they were mine—that the policy intentions behind demoted tenancies were to give the tenant a last chance to change behaviour. I had absorbed that without realising and it is only now when I look at my notes that I see where that phrase comes from. At the last stage in this House, the noble Lord, Lord Bassam, said that the proposed amendments linked too closely the provision of support with the demotion order. He said that they were linked, "too closely for us". He was worried that the court would refuse a demotion order if the landlord did not have a support package in place.
There is nothing in the amendments to prevent the court from granting a demotion order without support if the court feels that that is the right thing to do. However, if it thinks that support or rehabilitation is appropriate, a mechanism should be in place to ensure that it is provided. My noble friend Lord Clement-Jones referred to people whose behaviour is the outcome of bad health or other problems. This amendment would give people who are the subject of his remarks a fair chance to alter their conduct with the support that would be needed in that situation. The approach is in line with what I understand to be the Government's aims. As we know and as Shelter has powerfully illustrated, there are some social landlords who do not exempt vulnerable tenants from possession action.
Reference was made this afternoon to the guidance that the Government will issue. Will the Minister, if he is not minded to accept the amendments or something like them, assure the House that the range of intervention work and the circumstances in which a landlord should work with a demoted household or individual tenant will be dealt with in the statutory guidance?
I must also ask a quest ion that properly reflects the concern of the Local Government Association, whose briefing for today I have read. I received the briefing only today, so I have not had an opportunity to check with the association. It is concerned that tenancy

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conditions applying to the original secure tenancy— for instance, clauses on acceptable behaviour—will be applied to a demoted tenancy. Will there be a read-across of such tenancy conditions? Can the Minister confirm that? If he cannot do so today, I ask him to write to me about it. We must find a way of ensuring that those who need to know do know. I beg to move.
Lord Bassam of Brighton: My Lords, the amendments would allow a court to include provisions in a demotion order requiring a landlord to provide support and rehabilitation services to the tenants.
I think that I made it plain earlier that we saw support and preventive work as crucial in tackling the causes of anti-social behaviour. The noble Baroness has acknowledged that. Good practice in such circumstances is to work with the tenant or other members of the household or extended household to help them amend their behaviour. That is what we are trying to effect. In many cases, that will remove the need for legal proceedings. That is an important objective. However, making the consideration of a support package a statutory requirement before a demotion can be used will act as a disincentive for social landlords and others and encourage them to go straight for a possession order.
Before going to court, landlords would need to establish, in every case, whether the tenant would be willing to engage in support, whether the support is readily available and whether the funds required are available. All of that could delay proceedings and leave the victims of the anti-social behaviour angry and distressed. They will not understand why there is what they will regard as a delay. They could understandably and, perhaps, rightly feel that the law put more emphasis on ensuring that the perpetrator of anti-social behaviour is looked after than on their need to live free from its adverse and unpleasant effects, which, as the noble Baroness will recognise, have an impact on their daily life.
We must understand that, as well as being a "punishment", the demoted tenancy is intended to be a preventive homelessness tool. It is intended, as we are agreed, to give the tenant a last chance. If an outright possession order is seen to be easier to obtain than a demotion order, that is what landlords will use, leaving more people homeless.
I shall make the point again because it is important: the amendments could lead to unnecessary legal challenges. I am sure that the noble Baroness will appreciate that, being a lawyer. For example, if the landlord failed to have a complete support package in place at the time of seeking an order, the courts could refuse the order. There would be further delay, more obfuscation and more confusion for those affected by appalling behaviour. Similarly, landlords need the flexibility to change the type of support offered during a demoted tenancy, if the tenant is not responding well. I am sure that that point is well understood. If things are not going according to plan, one needs to adjust one's strategy and make sure that one is doing things that are more appropriate and effective. Ultimately,
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we are trying to achieve a change in behaviour. We must ensure that we do the things that will make that change take place.
The noble Baroness asked specifically about guidance. She knows that we will not give ground on the amendment. Our intention is that there will be guidance on policy and procedures. Best practice will be flagged up. As I said, we expect that best practice will be adopted. I hope that that helps the noble Baroness to accept our arguments and that she will withdraw her amendment.
5.15 p.m.
Baroness Hamwee: My Lords. I will withdraw the amendment, but, before I do, I observe that we seek to avoid a situation in which the problem is shifted, rather than solved. I am sure that the noble Lord will agree. We are talking about demoted tenancies, under which the tenant would stay on the same premises but on different terms, but the point applies generally.
I am indebted to my noble friend Lord Avebury. While we deal with the detailed terminology, he is sitting a couple of rows back thinking about real life and how the system will apply. He did not put it to me this way, but we cannot expect those whose behaviour is the subject of the Bill necessarily to be converted on the road not to Damascus but to Acacia Avenue or a flat in High Point. That will simply transfer the problem to their new neighbours.
The noble Lord said that the amendments would open the way to legal challenge. He said something similar last time. The provisions are intended to be discretionary. If the noble Lord thinks that we have a point, I am not too proud to welcome help with the drafting of the amendments. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 and 25 not moved.]
Clause 15 [Demoted assured shorthold tenancies]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 26:
Page 16. line 4, at end insert—
"() In the Housing Act 1988 (c. 50) after section 21 there is inserted the following subsection—
"(8) No order for possession under subsection (1) or (4) may be made in relation to a dwelling-house let on a tenancy to which section 20B above applies unless the court is satisfied that the tenant or a person residing in or visiting the dwelling house has engaged or threatened to engage in conduct to which section 153A or 153B of the Housing Act 1996 (anti-social behaviour or use of premises for immoral or unlawful purposes) applies.""
The noble Baroness said: My Lords, Amendment No. 26 is grouped with Amendments Nos. 147, 148 and 149. The amendments would ensure that the fast-track eviction proceedings available for demoted tenancies cannot be used for any reason other than further anti-social behaviour. The amendments would align the situation for all social housing tenants. The first relates to registered social landlord tenants who have previously had a short tenancy, and the others relate to local authority tenants who had a secure tenancy.
We have a concern that tenants who have addressed their anti-social behaviour since being put on a demoted tenancy, in which case the Government have achieved their objectives, could still be made homeless as a result of a breach of the more stringent tenancy conditions that would then apply, in particular those relating to rent arrears. That is what happens to many tenants who are placed on introductory or starter tenancies, so the amendments would ensure that eviction from a demoted tenancy can be carried out only for further incidents of anti-social behaviour.
In the Commons, the Minister argued that the amendments watered down the notion of demoted tenancies as a sanction. However, at this stage, as on previous occasions, the noble Lord, Lord Bassam, was more positive about encouraging landlords to use demotion where they feel they can work with a tenant to change the behaviour and therefore sustain the tenancy rather than end it.
I question the use of guidance. If the Minister is not persuaded, assurances that the statutory guidance will make it clear that final possession of a demoted tenancy should be on the basis that I have outlined would be helpful. I should be grateful if he could comment on that. I beg to move.
Lord Bassam of Brighton: My Lords, Amendment No. 26 provides that the court should not make a possession order to end a demoted assured shorthold tenancy unless there has been anti-social behaviour, either by the tenant or by someone else living with or visiting the tenant, and not for any other reason. In effect, that would mean that a landlord would have to return to court to prove that there had been further anti-social behaviour.
Amendments Nos. 148 and 149 would also require landlords to return to court to prove that there have been further acts of anti-social behaviour in order to end a demoted tenancy. I understand that the noble Baroness wants to ensure that tenants are not evicted from their homes without good reason, but these amendments would make the whole principle of demoting tenancies worthless.
Demoted tenancies have been designed to be both a warning and a last chance. We want to encourage landlords to use them instead of seeking suspended or outright possession orders. Demotion is not a soft option. As well as being a warning and an incentive to behave, it is a real sanction. The tenant, through his or her actions, has lost security; we want him to understand that this may have serious consequences. Tenants need to understand that when they are considering how to conduct themselves in the first instance.
Where a landlord has put his energy into seeking a demoted tenancy instead of a possession order, it will be because it is seen as a real chance to work with the tenant to improve behaviour. That kind of landlord would not subsequently seek to end the demoted tenancy on a whim. It is important, however, that if the tenant fails his or her last chance, the landlord is not expected to make a further trip to the courts.
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Possession proceedings are time consuming and can be very costly. Many witnesses and victims may be reluctant to attend court for a second time. Such action will have the effect of discouraging the use of demoted tenancies and, ultimately, could lead to more evictions.
A tenant would have been demoted in the first place only if the landlord was able to provide sufficient evidence to a court to obtain a demotion order. If the tenant's behaviour fails to improve, it seems unfair to expect the landlord to gather evidence to convince the court for a second time. The tenant would have already received the last-chance warning.
The procedure for ending a public sector demoted tenancy is based on the procedure for ending an introductory tenancy. It is a decision taken by the landlord, following a statutory process, followed by a possession order granted by the court. The tenant has the right to an internal review of the landlord's decision. That procedure has been approved by the courts.
Registered social landlord demoted tenants are assured shorthold tenants and their landlords can obtain a possession order by giving two months' notice. They do not have to give any reason. That is in line with the way that the registered social landlord starter tenancy scheme operates. There are checks on the appropriate use of starter tenancies. Housing Corporation guidance sets out that RSLs should follow a similar process to that for local authorities when taking possession action against starter tenancies. Housing Corporation regulations, in conjunction with Audit Commission inspection, help to ensure that RSLs act appropriately. That protection will be extended to demoted RSL tenancies.
Amendment No. 147 seeks to clarify that a notice of proceedings for possession against a demoted secure tenancy must be served under Section 143E of the Housing Act 1996; that is, a notice of proceedings for possession. The amendment is not necessary; the clause already has the effect that the amendment seeks to achieve.
The noble Baroness asked a question about the contents of guidance. I have made it clear that there is already guidance for RSLs. No doubt, this will be one of those issues on which we will promote best practice. The points raised in this short debate will be reflected on when providing guidance towards best practice.
Lord Avebury: My Lords, before the noble Lord sits down, could not the guidance provide that during the internal review which the noble Lord says would be conducted before a possession order is sought specific consideration is given as to whether the tenant's behaviour has improved?
Lord Bassam of Brighton: My Lords, it may be that that is included in best practice. The behaviour of the tenant is very much germane to the whole way in which

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demotion proceedings will work out. I am sure that that is a point we can take away and think about. I am most grateful to the noble Lord for making that point.
Baroness Hamwee: My Lords, I expressed the fear beforehand that in certain cases an unintended consequence might be to reinforce the downward direction of a spiral. However, I thank the Minister for his response. I shall consider the points carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved.]
Clause 16 [Proceedings for possession: anti-social behaviour]:
[Amendments Nos. 28 to 30 not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 31:
Page 16, line 25, at end insert—

"(d) whether the tenant or a member of the tenant's household suffers from an illness or disability which might diminish his personal responsibility for the nuisance or annoyance;

(e)whether the tenant or a member of the tenant's household is vulnerable as a result of childhood, old age, mental illness, disability or other special reason;

(f)whether the tenant or a member of the tenant's household is willing to give an undertaking to the court in respect of his future conduct; and

(g)whether other means of dispute resolution are available
to deal with the allegations of nuisance or annoyance."

The noble Baroness said: My Lords, Amendments Nos. 31 and 35 broaden the scope of the court's discretion when dealing with possession cases based on nuisance or annoyance. The amendments propose that the court's attention should be drawn to factors which may mitigate the personal responsibility of the perpetrator or relate to the hardship which will be suffered by other members of the household if a possession order is made—we referred to the first of those points earlier today. The court's attention should also be drawn to the willingness of the perpetrator to give an undertaking to the court and to other means of dispute resolution that may be available.
As the clause stands, the matters which the court must consider are those that relate exclusively to the effect on other people which the behaviour is having and will continue to have. Effectively, the clause gives rise to a presumption that a possession order will inevitably follow if the behaviour has had an adverse effect on other people, which may be the case where the behaviour is violent or persistent.
However, the Bill is directing the court in one direction only; that is, towards eviction. To that extent, I might suggest that it is interfering with the ambit of the court's discretion to an unjustified degree. I beg to move.
5.30 p.m.
Lord Bassam of Brighton: My Lords, these amendments seek to require the court to consider
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certain issues before granting a possession order, including any issues relating to disability or vulnerability of the tenant or their household members, and the availability of other remedies such as alternative dispute resolution or an undertaking by the tenant.
The amendments focus on the needs of the perpetrators of anti-social behaviour. None of these matters is irrelevant and will already form part of the court's consideration of whether a possession order is justified. However, Clause 16 seeks to ensure that, in considering the needs of the perpetrators of anti-social behaviour, the courts do not concentrate so closely on the circumstances of the perpetrator that they do not pay sufficient attention to the impact of anti-social behaviour on its victims. That is, after all, the objective of this legislation. The clause aims to redress that balance, not to discriminate against persons with disabilities.
In Committee, the noble Lord, Lord Clement-Jones, withdrew his proposed amendments on disability, having been assured by my noble friend Lady Scotland that the protection offered to disabled people by the Disability Discrimination Act 1995 would remain in place. I refer the noble Baroness to Hansard of 11th September at cols. 489 to 490. The Government stand by that position.
We are keen to ensure that disabled people are not unfairly discriminated against. The Disability Discrimination Act was introduced to ensure that disabled peopled are treated fairly as regards the services they receive and housing rights are included within that. Landlords, including social landlords, are already within the scope of the DDA and the provisions of that Act, along with all other discrimination legislation, will be read into this Bill.
The correct balance must be maintained between ensuring that effective remedies against anti-social behaviour are available to protect all members of the community and that people with disabilities are not unfairly discriminated against. I refer the noble Baroness in particular to Section 22 of the Disability Discrimination Act which makes it unlawful for a person managing any premises to discriminate against a disabled person occupying those premises. In relation to eviction, such a person would discriminate if, for a reason which relates to the disabled person's disability, they treat that person less favourably than they would treat others to whom that reason does not or would not apply, and they cannot show that the treatment in question is justified in accordance with Section 24 of the 1995 Act.
When reaching their decision as to whether a possession order is justified, judges are required to take into account all the relevant legislation. Where there is a question of disability, this will include the 1995 Act, thus ensuring that such people are not unfairly treated. Judges already consider what other action landlords have tried before reaching a decision on possession hearings and whether or not undertakings relating to behaviour are appropriate.
Perhaps I may reiterate that I understand that the noble Baroness is concerned that some people may lose their homes as a result of behaviour which may appear to be anti-social, but which derives from a disability. I should like to reassure her that the protections offered to the disabled tenant by the 1995 Act are not affected in any way by this provision. Clause 16 is about ensuring that the impact of anti-social behaviour on victims is considered by the court. It is not in any way intended to encourage discrimination against disabled tenants.
I hope that, with those reassurances and with our continued commitment to finding other means prior to using these more severe penalties, such as dispute resolution and mediation, the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee: My Lords, the Minister's response is helpful and I shall consider further the relationship between the DDA and the provisions set out here. The prompt for the amendments was that, under what is set out in this Bill, the court has to consider "in particular"—those are the words used— the three matters to which I referred earlier, all of which concern the effect on other people. I am concerned about the relationship between the two pieces of legislation.
I am sure that what the noble Lord has just said was worded very carefully, so I shall do justice to those words by reading them with care. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 32 to 35 not moved.]
Clause 18 [Parenting orders under the 1998 Act]:
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 36:
Page 17, line 21, leave out subsection (3).
The noble Baroness said: My Lords, in moving Amendment No. 36, I shall speak also to Amendments Nos. 39 and 46. The amendments relate to the issue of residential care, which we discussed at some length in Committee. The Minister's response to the probing amendments tabled at that stage, along with the draft guidance which has now been published by the Home Office and the DfES, do not provide a sufficient explanation of how residential parenting orders will work in practice, and how they will comply with the Children Act 1989 and the United Nations Convention on the Rights of the Child, ensuring that all decisions are taken in the best interests of the child.
Because we have reached a different stage of the Bill, I shall repeat the list of organisations which I believe has come to be known as the "Sharp list": Barnardo's, the Children's Rights Alliance for England, the Children's Society, family service units, NACRO, the National Association for Youth Justice, the National Children's Bureau, the NCH, the NCVCCO, the NSPCC, the National Youth Agency and YMCA England all continue to have very serious concerns about the compliance of these clauses with the
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principle of the best interests of the child set out in the Children Act 1989 and Articles 3 and 9 of the UNCRC.
I am aware that the Minister has addressed this matter in a letter sent to the noble Earl, Lord Listowel, which he has shown to me. However, it would be helpful if she could put on the record her reasons for being confident that there is no breach either of the Act or of the articles.
In addition, five other specific concerns have been raised by these organisations. The first is that, as it stands, the provision is unnecessary. Arrangements are already in place under the Children Act 1989 and the Care Standards Act 2000 for a family to be placed in a residential family centre where available and appropriate. The decision to require parents to undertake a residential assessment is usually taken as a part of care proceedings under the Children Act 1989 and only after a full assessment of the child's needs. The decision would be taken on the basis of an assessment of need made under Section 17 of that Act. This defines children "in need" as being those who are,
"unlikely to achieve or maintain … a reasonable standard of health or development… or whose health or development would be significantly impaired, without the provision for him of these services".
The second issue that these organisations are concerned about is that in order to require a parent to attend such a course an assessment needs to be undertaken by a local authority's social services department. Social services would normally require parents to engage in a residential assessment only if they had concerns about the safety and care of the child or children. Residential family centres are often used for very vulnerable families with young children to provide support and to identify work to be undertaken to help the family. The focus is on monitoring and an assessment of parental ability, and children attend these centres with their parents.
Neither the Home Office nor the DfES draft guidance refer to undertaking such an assessment of the child's needs as part of the youth offending or local education authority recommendation to the court. Both sets of guidance refer to the fact that counselling or guidance on problems may be provided by the LEA, by the youth offending team, by the local authority social services department or voluntary sector organisations. Social services departments will not provide services without having first undertaken an assessment of need.
The organisations concerned about these issues do not believe that it is appropriate for either the LEA or the youth offending team to undertake the kind of assessment required in order to assess parental capacity. At the very least, they argue, an assessment under Section 17 by social services departments should form part of any evidence before the court. Will the Minister give assurances that any guidance on parenting orders will include the requirement for youth offending teams and LEAs to make such referrals to social services departments prior to their application to the court?
Thirdly, it is unclear whether residential centres will be required to register with the National Care Standards Commission. These organisations are also concerned that there is no clear direction about making arrangements for the care of any dependent children. In Committee, the Minister stated that,
"the whole point of residential places is to target those issues that are of most concern to the families and the children involved. A weekend residential period may be appropriate in order not to disturb the ordinary day-to-day life of the family and it may be necessary to invite the parents to take the children with them. In other cases it may be more appropriate for the child not to be there for a short period to enable the parents to concentrate on other matters".—[Official Report, 11/9/03; col. 525.]
This view is reflected in the DfES guidance, where paragraph 184 states:
"In order for the court to decide whether any likely interference with family life is proportionate it will be necessary for LEAs to inform the court what the programme will be. A small number of residential weekends structured within a wider non-residential programme might be a suitable approach. Arrangements for the care of the child (and any siblings and dependants) will be a crucial consideration. It may be that the child and siblings attending voluntarily will be desirable as family work can be particularly effective".
It is unclear as to what arrangements will be put in place, either for children who attend with parents or for those who do not. Currently, the residential family centres are required to register with the National Care Standards Commission. They are defined as,
"any establishment which accommodates children with their own parents, and where the parents' capacity to respond to their children's needs and to safeguard their welfare is monitored and assessed, and the parents are given advice, guidance or counselling about parenting as necessary".
Can the Government confirm that any provider of the residential component of the parenting order will be required to register with the National Care Standards Commission? If children are not attending with their parents there is need to ensure that they are being appropriately cared for and that should be undertaken with the involvement of local social services departments to ensure that arrangements are suitable.
The fourth point that has been raised is that there is little evidence of research on the effectiveness of residential courses. Clauses 18,20 and 26 state that the court must be satisfied that attendance at a residential course would be more effective than attendance at a non-residential course in preventing the behaviour for which the order was given, or in the case of parenting orders for exclusion from school, in improving behaviour.
The guidance states that the LEA or the youth offending team must provide evidence of how the residential requirement will be more effective. It is not clear how such an assessment will be made as to the effectiveness or not of this residential requirement. There is no detail as to the model of parenting programme that would be used in a residential setting. There are a range of such models currently used within residential settings, including therapeutic and behavioural. Can the Minister indicate what model of intervention is being used, what research backs this up
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and whether they have consulted those specialising in providing residential family support in making these proposals?
There is no indication as to how far there is capacity to meet these requirements or how costs will be met. The recently published Home Office action plan— Together: Tackling Anti-Social Behaviour—states that the residential parenting scheme will be piloted through the Youth Justice Board in partnership with the Juvenile Offenders Unit at the Home Office. Can the Minister tell us a little more about the proposed pilots and about the capacity and funding for parenting courses, in particular the residential component?
Finally, I shall say a word on costs. Paragraphs 162 to 165 of the department's guidance set out that the LEA will be responsible for covering the costs of the application for a parenting order and meet the costs of any counselling or guidance programme. However, in some circumstances, the governing body of a school will be expected to meet the costs of the counselling or guidance programmes. Will the Minister clarify who will be responsible for meeting costs in the case of residential courses? I beg to move.
5.45 p.m.
Lord Elton: My Lords, I share many of the reservations of the noble Baroness, Lady Sharp, but at the same time I recognise a serious weakness in our society, in the form of the children of parents who were themselves children when they became parents. Such parents have no inherited parenting skills at all, and go on to be parents themselves. There must be an intervention, which will have to be more radical than merely consultation and attendance at a centre from time to time. Therefore, it may be necessary for there to be a residential course. As that is the case, I recognise the caveats put into the Bill as to the circumstance under which it may be held.
Unlike the noble Baroness, I thought that the provisions for payment of the courses were set out in Clause 21(4), which states:
"The appropriate person may by regulations make provisions as to how the costs associated with the requirements of parenting orders under section 20 … are to be borne".
The Minister will no doubt put us right about that and tell us, I hope, whether that includes the consequential costs on the family concerned. If a mother and child are taken out of a family in which there is a single-parent child and three other children, costs will be entailed in the care of the other children. They may be taken into care by the local authority, although that would be the worst solution. They may be cared for by a carer who has to be paid for by the local authority, or there may be other arrangements. Costs will arise, in any case, and I trust that they are recognised.
I remind noble Lords that we are debating Clause 18 and parenting orders, which means that the attendance on the part of the people involved may not be voluntary. It is laid on them by the courts. The next clause relates to parenting contracts, with which there can be an element of voluntariness. By a side wind, will

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the Minister tell us whether any provision for costs will be made in those cases, where the outcomes are likely to be somewhat better because those attending the courses are doing so of their own free will, or at least under inducement rather than compulsion?
The answers to those two questions may make me less friendly to the amendment tabled by the noble Baroness, Lady Sharp; otherwise, I find it rather attractive.
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness and the noble Lord for their comments. It is clear that the purpose of the amendments is to ensure that residential placements, if made, are made appropriately. Before going into the detail, I should say that the noble Lord is right in his reference to Clause 21(4). That provision is already made. However, I shall go back and deal with some of the earlier issues and come to that matter in its proper place.
The amendments tabled by the noble Baroness would remove the power of the courts to require a parent to attend a residential course as part of a parenting order. From what the noble Baroness said, I take it that she is not suggesting that this may not be an appropriate tool; she wants to know how it will work. I shall approach my response on that basis.
The clauses allow a residential course to be included only when a court is satisfied, on the balance of probability, that it is likely to be more effective than a non-residential course and that any interference with family life is proportionate. The usual rule about "he who usurps must prove" will apply, so an evidential burden will be placed on the authority that seeks a parenting order to satisfy the court of each and every one of those elements that I have mentioned. The residential approach would enable parents to be taken to a structured setting so that more sustained counselling and guidance work can be carried out. That will be appropriate for troubled families, for whom a non-residential approach will be insufficient.
The noble Baroness will know that many of the families who regrettably find themselves in this category are likely to have been on the cusp of being considered for local authority intervention. We have put together a structure including parenting contracts and multi-agency work. That work should have been undertaken before the parenting order stage is reached. The agencies should have a clear picture of the issues surrounding a child and his or her family regarding failure to meet educational or other milestones and/or appropriate school attendance. The noble Baroness will know that it does not inure to the advantage of a child not to attend school consistently. There may also be behavioural issues to be considered. If I may speak colloquially, we are talking about children and families at the sharp end of the spectrum—the children who are rightly the concern of the noble Baroness and the Sharp list.
The difficulty, of course, is in defining with precision the kind of course which will best suit the needs of each individual child. The noble Baroness was right to
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mention the difference in methodology adopted in some residential settings as opposed to others. The noble Baroness and the House will know that often that difference is dictated by the needs of the family and the child. Sometimes behavioural therapy is the better course; sometimes psychological and other therapy is the better course. Regrettably, one size does not fit all. For that reason we shall pilot the different forms of therapeutic intervention so that we can better assess the models which are most likely to be beneficial.
As I say, courses will be tailored to meet specific circumstances. Intensive residential work with families can be highly effective in tackling persistent unacceptable behaviour. As I have mentioned on other occasions, children could attend the residential course on a voluntary basis thus enabling work to take place involving the whole family. Where children do not attend, proper arrangements for their care will be absolutely crucial.
I agree with what the noble Lord, Lord Elton, said in relation to taking children into care even if temporarily. I respectfully agree with him that that is likely to be the least attractive model although I do not rule out the possibility of it happening in the odd case if all the parties deem it the most appropriate. The noble Lord will know that, in taking into account the proportionality of that step, the court would have to assess whether it was a reasonable step, whether there were other family members who could help and what other assistance was offered to the family. It is impossible to say with certainty what those steps would be in each individual case because, by the nature of the problems which many of these families face, it is unlikely that the identical situation would occur more than once; it just does not happen that way.
It is right therefore that programmes delivered as a result of parenting orders should have the flexibility to consist of or include residential work with parents where that would be both more effective and proportionate to any interference with family life.
We are consulting with providers of residential parenting. The funding provided by the anti-social behaviour action plan will be £1.5 million to bolster the parenting programmes this year. The youth offending teams have funding for parenting support and they will be tasked to find residential places. Local education authorities will be responsible for education related orders although a school will be able to pay if it requests a parenting order.
The noble Baroness raised the issue of the capacity to deliver. The capacity and quality will be promoted through various means. I have said already that residential courses will be piloted on a voluntary basis and the specification can be developed in that way. But the courses will be delivered by a range of providers subject to all relevant standards and statutory requirements. Youth offending teams and local education authorities will pay for attendance at residential courses. The provision of parenting programmes nationally was boosted by the announcement made by my right honourable friend

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the Chancellor of the Exchequer in July 2002 of a £25 million Parenting Fund which will provide a robust network of parenting support to be delivered by the voluntary sector.
Under the Children Act 1989, family centre attendance is required, not by statute but with the lever of care proceedings. It is not dissimilar. In the case that we are dealing with it is more about the behaviour of the child being seen as the trigger as opposed to the disintegration of the family itself. That is why the assessment is made by the youth offending team and not by the social services.
Draft guidance on the education parenting orders has now been issued. Page 24, paragraph 150, of the relevant document covers the assessment for education-related parenting orders. I invite the attention of noble Lords to that. I am confident that they will find it of use.
The noble Baroness asked about the issues arising out of Article 8 of the European Convention on Human Rights, and the right to respect for private and family life, and Articles 3 and 9 of the UN Convention on the Rights of the Child, as regards the child's best interest and separation from the parents as well as the test of the child's best interests under the Children Act. As the noble Baroness rightly said, I wrote to the noble Earl, Lord Listowel, on these matters and a copy of the letter has been placed in the Library. I would be happy to recite the body of what I said there.
Criminal and anti-social behaviour and poor attendance and behaviour at school can prevent children from realising their potential and lead to very adverse outcomes for them. A residential course within a parenting order would only be required in order to support parents so that they are better able to influence their child and prevent such behaviour. The residential requirement serves the main purpose of the parenting order itself, which is to prevent a repetition of the kind of behaviour which led to the making of the order.
There are two additional conditions in the Bill which also have to be met before a residential requirement is imposed. Given all these safeguards such a requirement will be compliant with the UN Convention on the Rights of the Child, the Children Act and the European Convention on Human Rights as enacted by the Human Rights Act.
Turning to Article 9 of the UN Convention on the Rights of a Child, a child cannot be separated from his or her parents against their will unless the separation is necessary for the best interests of that child. As I have already said, children may accompany their parents to a residential course voluntarily. We expect children in nearly all cases to be invited to attend.
The kind of circumstances where a child might not be invited to attend would be where the parents need respite to benefit from the course. In such a case appropriate childcare arrangements, as we discussed earlier in this debate, would be made. We hope that the course would help the parents by improving parenting
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skills and thus benefit all of their children. The short separation would be in the child's best interests and thus compatible with Article 9.
By making residential placement available to the court, if it deems it appropriate, we are seeking to give the court a full opportunity to intervene in a way that may make a material difference and advantage the child and the family so that there is an enhanced chance of the family staying together.
Noble Lords will know that research indicates that it is better for a child to remain within his natural family if he can safely so remain than to be removed and placed with a substitute family. If we get this right, we will give these children, who are so desperately in need of our care and attention, a better chance.
I invite the noble Baroness not to press the amendment. I have every confidence that she and a number of those who have expressed their concerns have the best interests of children at heart and that they would not like to see the court disabled from doing that which will be most advantageous to them.
6 p.m.
Lord Elton: My Lords, the Companion permits me a short, elucidatory question before she sits down and this is it. Is she aware that I share her view that the job is to sustain families particularly at the edge of economic extinction? My question about payment was not directed to who will pay the local authorities but to who will pay a father who has to give up his paid work for however long in order to look after the other three children when the mother has gone to the compulsory course.
Baroness Scotland of Asthal: My Lords, I understand the noble Lord's concern. I believe, as does the noble Lord, that the parenting role is for both parents. We would expect that, in considering whether such a move would inure to the children's advantage, there would be thought as to whether the parents should go together and whether the children should go with them. If it is not thought necessary for the mother to be with the father on the parenting course, we would expect there to be proper arrangements.
The kind of issues which the noble Lord properly raises are those which we would expect the court to make inquiry about and those who seek the orders to be able to satisfy. If the court is not so satisfied, it will be open to the justice exercising the discretion to say, "I am not satisfied that a residential setting in these circumstances is the preferred way", and to suggest another way. These are the precise practical issues which need to be addressed in order for the court to come to its determination.
Baroness Sharp of Guildford: My Lords, I am grateful to the Minister for giving so full a reply to all the queries that I raised. It is helpful to get the essence of the letter that she wrote to the noble Earl, Lord Listowel, on to the record. I thank her for repeating it and for the patience of your Lordships in listening to it.

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We will study what the Minister has said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Parenting contracts in cases of exclusion from school or truancy]:
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 37:
Page 18, line 7. at end insert "and will work in conjunction with the appropriate agencies and authorities to ensure that such support is given"
The noble Baroness said: My Lords, Amendment No. 37 relates to the voluntary parenting contracts and goes back to the discussions that we had in Committee on the need for LEAs and governing bodies to work in conjunction with social service and health authorities— the multi-agency approach that we have talked about in terms of tackling family problems at the root.
In Committee, the Minister said:
"We of course want to encourage an approach to supporting parents that draws on input from the full range of relevant agencies … We will encourage local education authorities and schools, through guidance, to investigate whether other agencies are already working with the pupil and family and, if so, to work with other agencies to ensure that the terms of the parenting contract are complementary. That is also a key component of the Children at Risk Green Paper".—[Official Report, 11/9/03; col. 527.]
The draft guidance that has been issued, which seems only to refer to parenting contracts initiated by youth offending teams, does indeed refer to multi-agency working, but it is mainly about youth offending teams working in conjunction with other agencies. It puts the onus on the youth offending team to identify the other agencies working with the child. That can be found at paragraphs 2.20 and 2.21. It concludes with the rather weak sentence:
"Local protocols will need to be agreed about co-operating and supplying resources in such cases".
Paragraph 2.22 then states:
"Local co-ordination in the delivery of parenting programmes may also help target effort and resources where it can be most effective".
Indeed, but we return to the old conundrum: is it enough to set that out in guidance, particularly when the guidance is as generalised and as weak as this? Given the failures of joined-up working, exposed time and again in cases such as that of Victoria Climbié is there not virtue in having that injunction on the face of the Bill?
Amendment No. 37 is framed in general terms to meet the criticism of our more specific amendments raised by the Minister in Committee. It does no more than provide a gentle prod in the direction in which guidance will take the authorities, but being on the face of the Bill makes it that much stronger.
Amendment No. 45, to which I wish to speak, relates to a different issue. It concerns the question which my noble friend Lady Walmsley raised in Committee in relation to Part 4 of the Bill—namely, the question of how far action should be taken when there is merely the view that a young person is likely to
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engage in criminal conduct or anti-social behaviour. Admittedly, here we are talking about parenting contracts and not the dispersal of groups. However, the same issue arises: whose judgment is it that such behaviour is likely to occur?
Given that the consequences for parents may be quite substantial, including enforced attendance at residential courses, which we have just discussed, can the Minister justify the presumption entailed? I beg to move.
Baroness Darcy de Knayth: My Lords, perhaps I should speak now to my amendment—Amendment No. 38—which is in this group. Incidentally, I wish to add warm support for Amendment No. 37. I shall try to be brief. I said that I would not try to de-couple the amendment and I have not done so. However, I am afraid that I shall have to spend a little time on it.
I shall not repeat the arguments that I made in Committee on 11th September at cols. 532 to 534. Then, I moved and spoke to similar amendments, which sought to give school governors and LEA officers a legal duty to pause for thought before issuing parenting contracts and orders to parents of children with special educational needs. The amendments sought to ask them to consider whether more appropriate action could be taken instead of imposing possibly irrelevant legal requirements on parents.
The Minister gave a full and most welcome reply at cols. 534 to 536, saying that the Government were absolutely committed to ensuring that the provision in Part 3 did not adversely affect children with SENs and that they would make that crystal clear in guidance. I withdrew gratefully and hoped that the guidance would be issued before Report. I am delighted that the draft guidance, which has already been mentioned, is already out for consultation.
I very much welcome the references to children with disabilities and special educational needs. The guidance goes a long way to meeting the concerns expressed by myself and other noble Lords— particularly the noble Lords, Lord Addington and Lord Elton. I am delighted to see that the noble Lord, Lord Elton, has stayed to debate the spin-off advantages available to other children in the class.
There is an excellent part on disability and special educational needs at the beginning of the draft guidance but no mention of them later. I feel very strongly that they need to be mentioned again under the section headed "Considerations to be taken into account before issuing contracts" and before issuing orders for their return.
The Special Educational Consortium fully supports that and is concerned about the checks on special educational needs and disability. I know that IPSEA, of which I should declare I am a patron, will respond to the consultation document in the hope of persuading the department to enlarge on the considerations that will be required before contracts are examined. It may wish to call for a review of the school's current arrangements in order to meet the child's special educational needs. It will wish to review

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whether the necessary arrangements are in place and whether they are adequate or need to be amended or reassessed before issuing a contract. I hope that the Minister will agree to that kind of detail being included in the final version of the guidance. Other organisations will respond individually and 1 know that the SEC will do so collectively.
That deals with parenting contracts. I now turn to parenting orders which are applied for by LEAs. They are issued by magistrates' courts with a penalty for parents who fail to fulfil the terms. I believe that IPSEA is right to say that we need a stronger measure than guidance; hence Amendment No. 38. The amendment would call for regulations to require a review of the current arrangements to meet the child's special educational needs before an application for an order to a magistrates' court is made. Consideration should be made of whether the provision in place should be amended and whether there should be fresh assessment of the child's needs. At present those with a disability or with SEN receive no mention in the regulations. That is a very important point. It is in line with the concerns of the SEC and has its support.
Are we asking for a sledgehammer—although quite a small sledgehammer—to crack a nut? I think not. I have two quick points in support of the amendment: I mentioned one in Committee and the other is new. First, a growing number of voluntary organisations active in this area have experience of children with special educational needs being excluded because the schools cannot meet their needs: IPSEA, the National Autistic Society, the Down's Syndrome Association, the British Dyslexia Association and the ADHD National Alliance in particular all report that. They are active, grass roots organisations.
My new point is that the latest statistics on exclusions from school issued earlier this month by the DfES specifies for the first time the number of children without statements as well as those with statements. The numbers are somewhat startling. The total number of children excluded from school remains the same. The figures used to be for children with statements and the rest of the children and now they are for children with special educational needs with or without statements. In 2000-01, 9,000 children were excluded—a Figure that stays constant—and 808 children with statements were excluded. In 2001-02, there were still about 9,000 excluded children, but almost 6,000 children—instead of 808—had special educational needs, which means that 60 per cent of excluded children probably had a special educational need of some kind.
IPSEA says that we do not have the figures, but there is a good reason to suspect that a large proportion of the 6,000 will have been excluded because the schools were not meeting their needs. In such situations there is little point in pursuing parenting contracts or orders without first having ensured that the individual child's needs are being met.
I hope that the Minister will agree that the figures are serious. I hope that she will look kindly on the amendment. I repeat that I am grateful for the
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guidance as far as it goes, and I hope that the Government will take note of the comments. 1 also hope that serious consideration will be given to this amendment.
Lord Elton: My Lords, I am tempted to my feet only by the appeal from the noble Baroness. I am unsure what she wanted to elicit from me, but I believe it was an endorsement of the fact that exclusion of a child from school is sometimes imperative for the benefit of the other children in the class. In such cases the needs of the excluded child have to be set against those of the children in the class. The noble Baroness spoke to this point in relation to Clause 19 about contracts. The contract is a parenting contract in cases of exclusion from school or truancy. I am a little pessimistic about this because presumably, if the school is a good one, there will already have been a home school contract for a difficult child which, of course, is unenforceable. In this clause, subsection (8) states:
"A parenting contract does not create any obligations in respect of whose breach any liability arises in contract or in tort".
In fact, unless the noble Baroness tells the House otherwise, it is almost unenforceable and the parent will recognise that from previous experience. I wish this well. I believe that what the noble Baroness on the Liberal Democrat Benches has asked for should automatically be forthcoming. If it can be put on the face of the Bill, so much the better.
Lord Addington: My Lords, on Amendment No. 38, I, too, would feel slightly more comfortable if on the face of the Bill there was some recognition that specialist help, care and so on will be required for certain people with special educational needs. The correlation is proven between the people in the group and those who will be subject to the order. To have the provision on the face of the Bill would be better than having it in the regulations. The draft guidance, which I have read, mentions—as the noble Baroness said— disability and special educational needs. However, unless we can get the two tied in more closely, we will make a few more mistakes. It is to be hoped that we can better establish that issue after the guidance returns from consultation.
6.15 p.m.
Baroness Scotland of Asthal: My Lords, I commend both noble Baronesses on speaking to their amendments with such elegance. In particular, I commend the amendment of the noble Baroness, Lady Darcy de Knayth. I believe that guidance is the most appropriate way forward. I thank the noble Baroness for her generous comments about the consultation document, which we have produced. I just emphasise that, as she has rightly said, this is a consultation document. We will anxiously sift through all the comments that we have received and will receive on the guidance. The noble Lord, Lord Addington, is correct to say that we should get this issue absolutely right. We will take all comments on board.
No one would dispute that there must be safeguards in place for children with special educational needs, but there are already safeguards in place. There is the

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Special Educational Needs Code of Practice, the Education Act 1996—which places schools and local education authorities under a duty to identify, assess and make suitable provision to meet a child's special educational needs—and the department's guidance on exclusions which emphasise the importance of addressing a child's special educational needs.
Perhaps I may say a few words on the issue. We have discovered that children who show evidence of special educational needs sometimes have those needs contributed to by the quality and nature of the care and parenting they receive. If one can help deal with the parenting, one often can help materially the way in which the child can take advantage of the opportunities available to it.
Lord Addington: My Lords, before the noble Baroness sits down, will she make sure that a definition is made between those who have a special educational need resulting from a disability—either hidden or otherwise—and those who have a social problem? Confusing the two leads to a great deal of misdiagnosis and wasted time and money.
Baroness Scotland of Asthal: My Lords, I agree with the noble Lord that often there is confusion between those two. Children suffering most acutely from social needs can be misdiagnosed as having some other need. I understand that. That is why I very gently suggested that parenting can also have an influence on these issues.
I was very pleased to note the comments made by the noble Baroness about the guidance. On the position in the Bill, the draft guidance, which we have recently published—and to which the local education authority must have regard—makes clear the position of children with special educational needs. It fully restates the duties which schools and local education authorities are under, including their duties under the Disability Discrimination Act; and it requires schools and local education authorities to take into consideration any special educational needs and to satisfy themselves that they have done all that they can to meet them before applying any of the measures in the Bill.
The home/school agreements, referred to by the noble Lord, Lord Elton, apply to all children. It is the usual format: schools will have an arrangement about the behaviour which the parent and the child are expected to maintain while at that school. The contracts to which we refer are different, because they are specific, tailored contracts to deal with particular difficulties that may have been evidenced by the child having been in some way non-compliant—by either its behaviour or its non-attendance. It is those different, finely honed contracts that we think will be targeted to change behaviour. There are of course two sets of draft guidance: one on youth offending teams and one on education-related parenting measures. Copies of both are in the Library.
I turn to parenting contracts. The parenting contract is a two-sided agreement and it is clear that the local education authority or governing body's side
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of the contract is to provide support for the parents. In some cases, that may be something that the school can provide without external assistance; or it may require a multi-agency approach.
I therefore firmly support the noble Baroness, Lady Sharp, in her aim behind Amendment No. 37— namely, to encourage local education authorities and governing bodies to involve a range of relevant agencies to provide support to parents. The Government are committed to ensuring better and more effective working between different agencies and will be advancing that, following on from the recent publication of the Green Paper, Every Child Matters.
However, that aim requires a more flexible approach, which, I therefore submit, is better suited to guidance. We are currently consulting on draft guidance and the concern to ensure that a joined-up approach to support those parents is reflected— indeed, strongly propounded—throughout the document.
Thus, before the meeting between the education authority or governing body and the parents to draw up the contract, consideration must be given to whether other agencies should attend or suggest terms for the contract. Even before the decision is taken to enter into a parenting contract, the local education authority or governing body must consult with any other agency involved with the pupil or its family. Clause 25 allows youth offending teams to enter into parenting contracts with parents whose children are "likely to engage" in criminal conduct and/or anti-social behaviour, with the purpose of steering the child or young person away from such behaviour.
Amendment No. 45 would prevent youth offending teams from entering into parenting contracts at that crucial stage when the child or young person has perhaps not yet come formally to the attention of the police for anti-social behaviour. If an agency becomes concerned about a child or young person, it might refer him or her to a youth inclusion support panel, which will carry out an assessment. That assessment would consider the risk factors and protective factors. Where that indicates a high risk of offending, the youth inclusion support panel may ask the child and parents for consent to be referred to a youth offending team so that they can access appropriate support.
The youth offending team could then work with the child and, if appropriate, the parents, to steer the child or young person away from criminal conduct and anti-social behaviour. That could involve a parenting contract. That could provide invaluable help for families at an early stage, before a child or young person's misconduct becomes entrenched and leads to more serious problems.
Evidence suggests that intervention at that early stage can be especially effective. I stress that referral and intervention would be voluntary. The amendment would deprive families of the support that they want, need and deserve. I therefore ask the noble Baroness not to press it.

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I speak briefly to government Amendment No. 48, which is grouped. It specifies that the term "guardian" in Clauses 25 and 29 has the same meaning as in Section 107 of the Children and Young Persons Act 1933. Parenting orders for criminal conduct or antisocial behaviour under the Crime and Disorder Act 1998 already use that meaning.
We always intended that that should apply to parenting contracts and the parenting orders, and that change is needed to make this clear. It allows youth offending teams to provide support in a wide variety of family circumstances—such as where the court regards step-parents as having the care of the child or young person. I know that that has been of concern to several noble Lords—in particular, to the noble Lords, Lord Hylton and Lord Northbourne. I hope that that will give them some pleasure and satisfaction.
I commend the government amendment and invite the noble Baroness not to press her amendments.
Baroness Darcy de Knayth: My Lords, I thank the noble Baroness. I thank also the noble Lord, Lord Addington, for his useful intervention about separating special educational needs from a genuine disability or whatever. I point out that all the provisions to which the noble Baroness referred are now in place. The organisations are saying that all these children are excluded now. I will think about regulations before the next stage if the noble Baroness is willing to talk in the interim. I think that the regulations do not mention SEN invisibility; it is mentioned only in the guidance. Will the Government undertake at least to have it mentioned in the regulations?
Baroness Sharp of Guildford: I thank the Minister for her detailed reply to the various amendments to which I spoke. I am sorry that she has not seen fit to take up my modest Amendment No. 37, because it makes a difference whether the provision is in the Bill or in regulations. It is good sometimes to prod the authorities and we are trying to give a modest little prod. The Minister talked about flexibility in the regulations. I can think of nothing more flexible than the amendment I tabled. I am sorry; I rather hoped it might find faith with the Minister.
I did not table Amendment No. 38 but I would like to make one comment. There is a worry that we have made a distinction between genuine needs and behavioural problems in special education needs. Problems such as dyslexia might be called middle-class diseases, because informed parents make a fuss and get things done, but sometimes that does not happen. The advantage of having a clause in the Bill such as that proposed by Amendment No. 38 is that it makes the authorities consider such matters when they do not have parents prodding them hard to do so.
I take the Minister's point about Amendment No. 45. I recognise that early intervention can be advantageous. There are sometimes difficulties. Your Lordships will recognise that we are unhappy about
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the presumption of guilt that to some extent applies on such occasions. However, I will not press the issue now. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Parenting orders in case of exclusion from school]
[Amendments Nos. 38 and 39 not moved.]
6.30 p.m.
Clause 23 [Penalty notices for parents in case of truancy]:
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 40:
Page 20, line 38, leave out "or a head teacher"
The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 41, 42, 43 and 44. All the amendments relate to fixed penalty notices for truancy, but the group raises two separate issues. Amendments Nos. 40, 42 and 43 relate to whether head teachers or other members of staff at schools should be given powers to issue fixed penalty notices, or whether that responsibility should be left with the local education authority and/or the police force.
We argued the issue in Committee and the Minister's response was—as I suspect it shall be again today—that the power is entirely voluntary and that no head teacher is compelled to act as an agent for the authority in issuing fixed penalty notices. The Minister claimed that since schools had closest contact with such pupils, they were in a good position to know when a fixed penalty notice might be most appropriate and that these powers should be added to the toolkit of measures available to teachers at such times. She went further, adding that the measure had been welcomed by some head teachers.
I am not certain which head teachers the Minister spoke to. We are raising this issue again because of the unhappiness both of many of the bodies representing head teachers and teachers and also of the Local Government Association. I myself have spoken to the heads of the Secondary Heads Association and to the National Association of Head Teachers and I can find no support for the intrusion of these provisions in the Bill. Voluntary or no, they claim that if the provision is there, they may come under pressure to use it. There is very real disquiet at the effects that such use may have.
First, those bodies are worried about the effect that the power to issue fixed penalty notices might have on the relationship between schools and parents. As has been stressed in relation to parenting contracts, the more relationships are voluntary and co-operative, the greater the ownership of the outcome and the more effective any counselling or classes are likely to be. Once the school breaks that co-operative, voluntary boundary, trust is broken and the same outcome cannot be guaranteed.
Secondly, where heads are specifically given responsibilities for policing truancy in this way, there is a real risk of putting themselves and other members

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of staff at risk of a violent response. I am not suggesting that it is more than the exceptional parent who may respond to a fixed penalty notice with violence but, sadly, the extent to which teachers have experienced rough and violent behaviour from parents, even after just criticism of a child's behaviour, has been on the increase. Both the Secondary Heads Association and the National Association of Head Teachers are very worried about the implications for their members of being given these powers and would much prefer them not to appear in the Bill. They also point out that their members are already overburdened with bureaucracy imposed by the Government and that this further responsibility is one that they can do without.
The Local Government Association has similar concerns. It remains unconvinced that fining parents is an appropriate or helpful response to the problems of truancy or bad behaviour. They point out that, given that when a parent is in breach of a parenting order or has failed to pay a fixed penalty they may be sent to prison, the measures may also lead to an increasing number of parents in the looked-after system, which I think all of us would agree is not a satisfactory outcome.
The LGA further argues that the Government are claiming that a framework for fixed penalty notices and for parenting orders can be developed by local education authorities and their schools forums. The LGA is concerned that that would not prevent an overuse of the new measures by some schools and therefore differential treatment of parents and children. The Government's arguments that fixed penalty notices are an alternative to prosecution equally fail to reassure that schools themselves should be involved in fining parents.
To sum up the arguments about head teachers, our case is that schools should not be put in a position of fining parents. It is ludicrous to suggest that head teachers, with all their other responsibilities, should be expected to police the truancy laws and impose fixed penalty fines on parents. The heads do not want the task. They have not got the time. It plays havoc with carefully nurtured home/school relations and it puts them and other members of staff at risk should any parent respond with violence. It is, indeed, one of the Government's barmier ideas.
I turn to Amendments Nos. 41 and 44. Amendment No. 41 is aimed to set out a proper limit in which the Secretary of State can exercise his discretion on the level of fine. The limit of any possible fine should be determined by legislation in line with provisions for penalty notices for criminal offences under the Criminal Justice and Police Act 2001. Fixed penalty notices are designed to deal with minor behaviour, and the stated penalty should reflect that. In contrast, the court fine level is based on the most serious behaviour that warrants prosecution, and the court, unlike the fixed penalty notice, is able to tailor the amount of the fine to the financial status of the individual.
We are concerned about the proposed two-tier level of finance announced in the House of Lords on 17th September. The presumption of innocence must be
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maintained and we do not consider it appropriate for financial inducements to be offered for admitting the offence. Allowing a 50 per cent reduction in the fine based on the admission of an offence is an unfair inducement, especially when the family are economically poor.
Amendment No. 44 would provide a minimum content for any fixed penalty notice and ensure that that content is specified in the Bill. There is no reason why the standard contents of a fixed penalty form cannot be stated in legislation rather than being laid out in regulations. Moving the offence from the formal criminal justice system into an administrative system should not deny the individual basic information and access to rights. The amendment is based on provisions already existing for fixed penalty notices for disorder offences under the Criminal Justice and Police Act 2001. An individual should be provided with basic information relating to the criminal offence that they are accused of. In addition, individuals should be provided with the basic practical information required to understand the notice and their right to challenge it. I beg to move.
Lord Elton: My Lords, I rise to support the amendment in some amazement that it should be necessary. Anyone who has observed the development of relationships between a traffic warden and motorists who have overstayed their leave at a parking meter will know that the introduction of the power to fine immediately develops a considerable feeling of hostility to the person levelling it. The Minister is reported to have said that this is something that head teachers do not have to undertake, but as the noble Baroness, Lady Sharp of Guildford, has said, collecting fines and deciding who should have to pay them is an onerous and expensive business which any local authority in its right senses will wish to devolve to the head teachers. They have considerable power over head teachers, and that power will be exerted to pressurise them.
I notice that the noble Baroness sitting next to the Minister is shaking her head. No doubt she will relieve my anxiety, but at the moment I find it difficult to imagine what sort of head teacher under what sort of circumstances would voluntarily acquire this power.
One of the more difficult relationships for a head teacher or any other teacher is when the parent takes the side of the child against the school—when a child is in error in some way and is being disciplined and a parent comes in. I had a case when a parent came in with his coat off because he thought that his child had been wronged. He threatened to have a boxing match over the matter. If this is a cause in which the patents themselves are involved and the penalty will fall on them as a result of the conduct of the child, an alliance will be formed between the two and the teacher will lose the most valuable of all allies—the parents—in trying to change the behaviour of the child. This provision should not be in the Bill and it will be used inadvisedly if it remains there.
Lord Hylton: My Lords, I have a good deal of sympathy with what has been said by the noble

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Baroness, Lady Sharp, and the noble Lord, Lord Elton. However, I am slightly comforted by a letter that I received today from the noble Baroness, Lady Ashton of Upholland. It says that,
"consultation with the school will be a crucial part of the process".
The process in this case means the process before a fixed penalty is imposed.
Baroness Howarth of Breckland: My Lords, if we are going to have different actions in different schools, how will Ofsted measure whether a school is using all the powers available? How will we know from one school to another whether the powers have had any impact? We will have an uneven playing field.
Baroness Scotland of Asthal: My Lords, I listened with great care to everything that the noble Baroness said. It did not differ one jot from what we explored in Committee. All the powerful arguments that the noble Baroness made today she made on the previous occasion. She knows, therefore, all the arguments that I will employ to refute hers.
None of the arguments bears repetition because the noble Baroness has had the advantage of hearing them already. I should, I suppose, say succinctly that our point is that all of the powers will be exercised on a voluntary basis. It is not compulsory. Secondly, I refute the suggestion that head teachers will be forced to do it and that pressure will be put on them. "Pressure from whom?", I ask myself. Head teachers will be able to make decisions about whether the power has utility for them in the exercise of their duties to the parents and children whom they are entrusted to serve.
Paragraph 65 of the guidance says that LEAs must not seek to delegate responsibility to schools or police. Paragraph 68 makes it clear that the school governing body must agree, before the provisions apply. There is clarity about whether the school can or will have the opportunity to say "no", if it so wishes. The noble Baroness said that the provisions were barmy. That view is not shared by many of the head teachers to whom my noble friend Lady Ashton of Upholland has had the privilege to speak. Many of those head teachers would like the opportunity to make decisions for themselves.
Some head teachers are in the privileged position of having a student body and parents who will never give them cause to exercise the powers. Other head teachers are not in such a luxurious position. Local codes of conduct will reflect local circumstances, and schools can issue fixed penalty notices only within the parameters of the code. To deal with the noble Baroness's point, I must say that Ofsted will be aware of that when assessing a school's performance. The parameters are clear.
We have a choice. Do we think—as the Government think—that teachers can and should be entrusted with the ability, to be exercised if they choose, or do we think that they should not be so entrusted, perhaps because they do not have the ability or discretion to do
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so? We think that we can trust our teachers and that they will only exercise the power judiciously. It is right to allow them to do so.
I will not repeat everything that I said in Committee. I will take it as read into the record.
Lord Elton: My Lords, I am sorry to make a habit of it, but the Companion permits a short elucidatory question. The Minister said that the guidance said that local authorities may not delegate the power to collect. In new Section 444B(l)(f), we read that the regulations may make provision as to,
"the persons who may be authorised by a local education authority to give penalty notices".
What is the difference?
Baroness Scotland of Asthal: My Lords, they cannot delegate their responsibilities as local education authorities to teachers, schools or police. The idea, as was said by the noble Lord, Lord Elton, was that somehow local authorities would simply foist their responsibility for discharging the duty onto others. What I was trying to make clear is that they cannot do so. The guidance makes it clear that they cannot do so. Unless and until the governing body of the school accepts, with the head teacher, and agrees that that should be done, it would be impossible for a local education authority to do so.
The important point is that if the school, the governing body and the local education authority agree that this is an appropriate thing to be entrusted to the school, they will do it. If they do not, they will not. There will be local education authorities, which, knowing their schools and knowing their head teachers, may prefer to keep the determining power to themselves, with the agreement of their schools and governing bodies.
However, there will be other local authorities where the schools, through the head teacher, the governing body and the LEA agree that this will inure to the advantage of their school and their children, and choose to invest that power in this way. These provisions would deny those schools that have a hunger for the opportunity to have this power available to them—only as a back-stop, only there in the background, only probably to be used in extremis. None the less, it would be a useful backstop. Many schools would wish to have that privilege. These amendments would deprive them of that opportunity. We do not think that that is right.
6.45 p.m.
Baroness Sharp of Guildford: My Lords, I thank the Minister for her reply. I am sorry she felt that I put forward the same old arguments as I did on a previous occasion; I thought that I had made one or two new points for her. I raised them because there is real concern among teachers. It is not a matter of trust; it is not a matter of not being trusted. It is a matter of what are the appropriate responsibilities to put on head teachers on this occasion. Many head teachers do

1829
not think that this is an appropriate responsibility to be put on their shoulders. They do not want that responsibility.
I accept therefore that it will be a matter of whether there is agreement. As the Minister indicated, it will be an agreement between the schools, the governing body and the local education authority. Quite rightly, it will be a provision in the Bill that is honoured in the breach rather than being used. Extremely few head teachers will want to take up and use the responsibility. That may well be the case.
It is unfortunate. We have seen a similar situation in other legislation that has gone through, such as curfew orders and so forth, which have not been used widely. In terms of legislation, it clogs up the time of the House and it brings the law into disrepute if we pass laws that are honoured only in the breach. However, the Minister wants to see it on the face of the Bill, but I am not convinced by the arguments produced. I shall think about the matter further. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 41 to 44 not moved.]
Clause 25 [Parenting contracts in respect of criminal conduct and anti-social behaviour]:
[Amendment No. 45 not moved.]
Clause 26 [Parenting orders in respect of criminal conduct and anti-social behaviour]:
[Amendment No. 46 not moved.]
Clause 29 [Interpretation and consequential amendment]:
[Amendment No. 47 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 48:
Page 25, line 35. at end insert—
""guardian" has the same meaning as in the Children and Young Persons Act 1933 (c. 12),"
On Question, amendment agreed to.
Clause 30 [Dispersal of groups and removal of persons under 16 to their place of residence]:
Baroness Walmsley Baroness Walmsley moved Amendment No. 49:
Page 26, line 12, leave out "presence or"
The noble Baroness said: My Lords, in moving Amendment No. 49,1 shall speak also to Amendments Nos. 51, 52 and 54. Amendments Nos. 49 and 51 are linked in that they both seek to remove from the Bill the liability to be dispersed for something other than actual bad behaviour; that is, simply being somewhere, in the case of Amendment No. 49, or someone thinking that a person might do something, in the case of Amendment No. 51.
The Minister has made it clear that the Bill does not apply just to young people. I accept that absolutely. However, young people think that it is aimed at them. Indeed, they fear that it does and they are very angry.
Last night I attended a lobby of young people in Portcullis House. Their main message was that young people are not all criminals and up to no good and they
1830
become angry when they appear to be so labelled. They are concerned that, simply because they have nowhere else to go and hang out with their friends, and nothing else constructive to do in many areas, it will be assumed that they are planning to misbehave when they gather together in public places. They understand, as one very impressive young woman called Lucy put it, that they are seen as an alien species by some of our generation. They would prefer to be understood, but they accept that often they are misunderstood.
They prefer the approach outlined by the Minister in Committee, where she described how the local authority in Harrow has handled this issue—by talking to young people and solving their problems. 1 could give the noble Baroness many other examples of how local authorities have dealt with this kind of problem, by getting to the root of it and finding solutions, but I shall not weary noble Lords, they will be pleased to hear, with such a litany. We have all come across examples of best practice in this area. If local authorities can find solutions without recourse to the draconian powers set out in this Bill, why do we need them?
Where there has been actual bad behaviour, I believe that the Government and the police have several remedies at their disposal; they just need to use them. It cannot be right to disperse people from an area where there has been anti-social behaviour even when there is no link between them and the problem behaviour itself. The nuisance may have been committed in the past by an entirely different group of people. Of course authorities need the power to deal with groups that terrorise neighbourhoods, but I believe that they already have such powers, and should use them. This Bill would allow the police to disperse groups of people from an area simply for being there, or if others think that they might cause a problem. That cannot be right in a free society.
I turn to the safety of young people. The House will be well aware that many young people are the victims of crime, albeit that some are the perpetrators. These law-abiding young people, some of whom spoke to me last night, are concerned that when they gather together in groups, where they feel comfortable and safe, they will be in danger of being labelled as troublemakers and be moved on. Not only does this make them feel angry and alienated, it undermines any confidence those young people might have that the justice system is also there to help and protect them, rather than simply to demonise them.
We must not criminalise the normal behaviour of young people. The dispersal power is a shallow and ineffective idea. It will simply move the problem somewhere else, without getting to the root of the cause of the gathering and finding a constructive solution. It is like giving an Aspirin to someone who complains of a headache rather than arranging a scan to find out whether they have a brain tumour, then operating to remove it. I expected better of this Government, who say that they are on the side of young people and respect their rights. I do not believe that these measures are consistent with the rights of

1831
young people under the UN Convention on the Rights of the Child, to which we are signatories, and they certainly do not meet the spirit of that convention.
I turn now to Amendments Nos. 52 and 54, which concern informing social services if a child is taken home by a police officer within the designated hours. The Green Paper, Every Child Matters, rightly talks about multi-agency working and common databases to assist in this type of work. Those who are concerned about children support absolutely that approach and have great hopes of the Government's consultation exercise on these matters. The Minister has said much recently about the benefits of multi-agency working during the course of this and other Bills.
While we are waiting for the measures which we hope will emerge from Every Child Matters, it would not be a bad thing, while we are passing this legislation, to insert into it an obligation for the police at least to inform the social services, not only if they have grounds for believing that the child is likely to suffer harm if removed to his or her home, which is what is sought by Amendment No. 54, but every time a child is taken home in the middle of the night, which is what is sought in Amendment No. 52. We must have joined-up action in these cases.
If any child below the age of 16 is roaming the streets unsupervised at two o'clock in the morning, he could be a child at risk. His or her education will suffer and there would have to be profound doubts about the level of control being exercised by the parents. Those parents may need some help and support in bringing up that child. We believe that social services are the most appropriate first port of call for that help and support. In such a case, it is hoped that social services professionals would inform the child's school. It would also be helpful for teachers to know why the child is falling asleep in the classroom the next morning.
I hope, therefore, that the Government will look kindly on these two amendments since they are clearly in line with the ethos set out in the Green Paper. I beg to move.
Baroness Masham of Ilton: My Lords, I am concerned about some of the amendments in the grouping. There has been a change in society in that, certainly in the north of England, many young girls, particularly, are drinking a tremendous amount and roaming the streets. They must be at risk of being enticed into prostitution. Not long ago, Barnardo's produced a very good video of children who were in social care in Leeds but were working as prostitutes in Halifax and being kept in appalling conditions. There is a risk element and we need to consider carefully these amendments.
Baroness Linklater of Butterstone: My Lords, I rise with some trepidation to speak on behalf of my noble friend Lord Lester of Herne Hill. He greatly regrets that he cannot be here to speak to Amendments Nos. 50 and 53, which are tabled in his name.
1832
Both amendments seek to give effect to the recommendations of the Joint Committee on Human Rights by inserting important safeguards into the Bill. Clause 30 contains provisions for the dispersal of groups of two or more people where it is reasonably believed that anti-social behaviour is a significant and persistent problem, and that such groups have harassed, intimidated, alarmed or distressed members of the public in the locality. However, the Joint Committee on Human Rights expressed concern that it might be difficult to ensure that the powers under Clause 30 would be used only when they were proportionate to a pressing social need.
In order to address this concern and to provide a tighter test and an additional safeguard to the use of these powers, we propose that the provisions in the amendment should be inserted into the Bill. Under the amendment, in order to be able to give an authorisation which would allow for the exercise of the new powers under Clause 30(4), the relevant officer must have reasonable grounds for believing that such authorisation and exercise of powers is appropriate and necessary for the prevention of disorder or crime.
Amendment No. 53 relates to the removal of young people under 16 to their place of residence. We have some concerns about this power and my noble friend feels that it is very important that this provision should be clearly linked to Clause 30 and to Amendment No. 50. As the Joint Committee on Human Rights observed, the provision effectively turns the authorisation into an extension of child curfew schemes. It also expressed concerns that the measures are not a proportionate response to a pressing social need.
It is not completely clear from the face of the Bill that Clause 30(1) conditions need to be met before Clause 30(6) can be applied, hence the need for the link. This is unacceptable. In order to address the ambiguity and to provide an additional safeguard to the use of these new powers, the provision in the amendment should be inserted after Clause 30(6). This will ensure that all of the Clause 30(1) conditions, including the new condition proposed as Clause 30(1)(c), are met before the power to remove is triggered. I hope that I have made myself clear to the Minister.
7 p.m.
Baroness Howarth of Breckland: My Lords, there can be some confusion between the need to remove young people from the streets when they are in danger or causing difficulties that might lead to an offence and young people who are simply congregating, when people fear that they might cause offence. To address the point that the noble Baroness, Lady Masham, was concerned about, young prostitutes and young women in difficulties certainly need help. If they are ordinary kids who are just grouping together on the streets, they need help, but not help as regards being dispersed.
I want to make a comment in support of Amendment No. 54. I am sure that the Minister will say that the amendment is unnecessary because the

1833
matter is covered in the Children and Young Persons Act 1989, with regard to the co-operation needed between police and social services. However, I support the amendment, because it would remind constables of their welfare responsibilities when operating under the provisions.
We know from what happened in the Climbié situation that the police forgot to take a holistic view because the person in front of them was a child. I have great respect for the police and have worked with them through the years, but it would help to have it in the Bill to remind them, through their training, that they have to intervene and work with social services if they find themselves in charge of a child who is on the street.
Lord Avebury: My Lords, I want to take the Minister back to the discussions that we had on the Licensing Bill, and the question of the large number of people who congregate outside premises where clubs are operating—young people between the ages of 16 and 30, whose ages are extremely difficult to determine. If a police officer faces a situation in which such a group of people is likely to intimidate—or is intimidating and harassing—members of the public, how does a police officer single out those who are of the age to which the clause applies?
Baroness Scotland of Asthal: My Lords, perhaps I should reiterate the basis on which the provisions will apply. As currently drafted, a senior officer may grant an authorisation in areas where people have been intimidated, harassed, alarmed or distressed, as a result of the presence or behaviour of groups and where anti-social behaviour is a significant and persistent problem. Those are the criteria set out, which need to be satisfied before the powers under this clause can operate.
Amendment No. 49 would remove the possibility of the police using powers based on the presence of groups causing intimidation, harassment, alarm or distress. The Government believe that it is not only the behaviour of groups that makes people feel threatened in their communities. The presence of the group, and the fear of what it might do, prevents people from using the open spaces and facilities within communities. The provisions are not limited to children. Groups can be dispersed, regardless of age. Only the curfew powers relate specifically to juveniles.
Amendment No. 50, in the name of the noble Lord, Lord Lester of Herne Hill, moved elegantly on his behalf by the noble Baroness, Lady Linklater, adds an additional condition,
"that it is appropriate and necessary for the prevention of disorder or crime".
We would say that the amendment is unnecessary. The condition adds nothing to the conditions already on the face of the Bill. Clause 30(1)(b) provides,
"that anti-social behaviour is a significant and persistent problem in the relevant locality".
That is the premise upon which the measure works and we believe that the position is thereby covered.
1834
Amendment No. 51 would prevent the constable from using the power if he has reasonable grounds for believing that the presence or behaviour of groups will result in members of the public being intimidated, harassed, alarmed or distressed. It is essential that the constable or community support officer has powers to prevent members of the public being affected in this way and to prevent intimidation, harassment, alarm or distress occurring in the first place.
We say respectfully that Amendment No. 52 is also unnecessary as Clause 32(4) already has the effect that is proposed in the amendment. The social services department of the local authority will be notified if a constable or community support officer decides to exercise his powers under Clause 30(6) of the Bill. I believe that the noble Baroness will see that the power which she seeks is there already.
Amendment No. 54 is also unnecessary as under the general child protection provisions in the Children Act 1989 we would expect constables to alert local authority social services departments of any child they believe is at risk of significant harm. We shall certainly ensure—I hope that I reassure the noble Baroness, Lady Howarth—that this point is covered in the code of practice issued under Clause 34. I hope that gives the noble Baroness some comfort.
Amendment No. 53 in the name of the noble Lord, Lord Lester of Herne Hill, seeks to clarify that before a police officer or community support officer exercises his power to take a child home, the conditions required for an authorisation apply. Clause 30(2) ensures that the power to take a child home can be exercised only when an authorisation is in place. While I recognise the point that the noble Lord, through the noble Baroness, is making, I hope I can reassure him and her that the amendment is unnecessary. The noble Lord has a few concerns and may welcome a discussion on them. I should be very happy to have that discussion with the noble Lord. If, due to our somewhat tight timetable, I am not able to conduct that discussion myself, I am sure we can arrange for him to have a proper consultation with the relevant officials dealing with the matter. I hope that following my comments and the offer of a discussion, the noble Baroness will feel able to withdraw the amendment.
Baroness Linklater of Butterstone: My Lords, I thank the Minister for her very clear reply. She considers the amendments unnecessary as their aims are covered in the Bill. My noble friend Lord Lester will read what has been said in Hansard. I speak for him but I am sure that he will welcome the noble Baroness's kind offer of a consultation.
Baroness Walmsley: My Lords, I thank the Minister for her reply and other Members of your Lordships' House for their support for these amendments. I believe the Minister suggested that Amendment No. 51 would remove all of subsection (3). However, it seeks to remove only the words,
"or is likely to result".

1835
That does not affect the rest of that subsection at all. I shall study carefully the Minister's comments on Amendments Nos. 52 and 54 to see whether we consider that we need to return to the matter at the next stage of the Bill. However, in considering Amendment No. 49, whoever grants the order and whatever has taken place before, does not alter the fact that these measures criminalise people for something they have not done, for being somewhere or for being thought likely to do something. Despite all the authorisation in Clause 31 and all the other caveats in this part of the Bill, we believe that there is a fundamental principle here. Because of that I want to test the opinion of the House on the amendment.
7.10 p.m.
On Question, Whether the said amendment (No. 49) shall be agreed to?
Their Lordships divided: Contents, 26; Not-Contents, 64.

Division No. 2

CONTENTS

Addington, L.[Teller]

Morgan, L.

Avebury. L.

Newby, L.

Barker, B.

Oakeshott of Seagrove Bay, L.

Beaumont of Whitley, L.

Rennard, L.

Darcy de Knayth. B.

Roper, L.

Elton, L.

Russell-Johnston, L.

Finlay of Llandaff, B.

Sharp of Guildford, B.

Hamwee, B.

Thomas of Gresford. L.

Harris of Richmond, B.

Thomas of Walliswood, B.

Howarth of Breckland, B.

Tope, L.

Lawson of Blaby, L.

Walmsley, B. [Teller]

Linklater of Butterstone, B.

Weatherill, L.

Miller of Chilthorne Domer, B.

Williams of Crosby, B.

NOT-CONTENTS

Acton. L.

Falconer of Thoroton, L. (Lord

Ahmed, L.

Chancellor)

Amos, B. (Lord President)

Farrington of Ribbleton, B.

Andrews, B

Faulkner of Worcester, L.

Archer of Sandwell, L.

Gale.B.

Bach, L

Gibson of Market Rasen, B.

Bassam of Brighton, L.

Goldsmith, L.

Berkeley L

Graham of Edmonton, L.

Bernstein of Craigweil, L.

Grocott, L. [Teller]

Bhatia, L.

Harrison, L.

Billingham, B.

Hayman, B.

Hollis of Heigham, B.

Blackstone, B.

Brett, L.

Hughes of Woodside, L.

Brooke of Alverthorpe, L.

Hylton, L.

Brooke of Alverthorpe. L.

Lea of Crondall, L.

Carter, L.

Macdonald of Tradeston, L.

Chandos, L.

McIntosh of Haringey, L.

Clinton-Davis, L.

MacKenzie of Culkein, L.

Crawley, B.

Masham of Ilton, B.

Davies of Oldham. L.[Teller]

Massey of Darwen, B.

Dean of Thornton-le-Fylde, B.

Parekh, L.

Desai, L.

Pitkeathley, B.

Donoughue, L.

Prys-Davies, L.

Dormand of Easington, L.

Randall of St. Budeaux, L.

Dubs, L.

Rendell of Babergh, B.

Elder, L.

Richard, L.

Evans of Temple Guiting, L.

Sainsbury of Turville. L.

1836

Sawyer, L.

Turner of Camden, B.

Scotland of Asthal, B.

Warner, L.

Sewel, L.

Warwick of Undercliffe, B.

Simon, V.

Whitaker, B.

Stone of Blackheath, L.

Whitty, L.

Temple-Morris, L.

Wilkins, B.

Resolved in the negative, and amendment disagreed to accordingly.
7.21 p.m.
[Amendments Nos. 50 to 54 not moved.]
Clause 31 [Authorisations: supplemental]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 55:
Page 27, leave out line 22 and insert "An authorisation may not be given without the consent of the local authority or each"
The noble Lord said: My Lords, in Committee we listened carefully to the points made by the noble Baronesses, Lady Walmsley and Lady Linklater, about the importance of the work of local authorities in tackling anti-social behaviour in their areas, particularly through local crime and disorder reduction partnerships, which we have done a great deal to develop over the past five or six years.
Government Amendment No. 55 ensures that the agreement of the local authority is given before those powers can be used. We have responded to points raised in Committee on that issue. Local authorities and the police already work closely together in local crime and disorder reduction partnerships, implementing local strategies for dealing with anti-social behaviour. We expect agreement on authorising the powers to be an important part of that process.
I turn to Amendment No. 56, which is grouped with Amendment No. 55. In this, the noble Baroness, Lady Walmsley. seeks to ensure that the local community is consulted before an authorisation is granted. We agree that the local community should be included in tackling anti-social behaviour in its area. However, we would not want to extend the authorisation process, implicit in the amendment, by building in an obligation to consult the local community.
However, we shall ensure that the code of practice to be issued under Clause 34 of the Bill gives advice on consultation with the local community. Indeed, we would expect crime and disorder reduction partnerships, which include, as I have made plain before, the police, councils and other bodies, to engage with local communities to determine whether there are areas in their locality where the use of the powers would be beneficial.
We agree it is essential that local communities know that those powers are being used in their area. That is why Clause 31(3) ensures that publicity is given to an authorisation. We believe that that communication is extremely important. Therefore, I trust that the noble Baronesses will not feel obliged to press their amendment. I beg to move.
Baroness Walmsley: My Lords, I rise to speak to Amendment No. 56. The purpose of the amendment,

1837
as the Minister has just said, is to ensure that all members of the local community, including children, young people and their families, are involved in the decision to instigate the power to disperse groups in local areas.
We have been briefed on this issue by Barnardo's, the Children's Rights Alliance for England, the Children's Society, Family Service Units, NACRO, the National Association for Youth Justice, the National Children's Bureau, the NCH, the NCVCCO, the NSPCC, the National Youth Agency and YMCS England, to whom we are very grateful. All of those organisations are opposed to the introduction of these new powers because of the detrimental impact that they will have, particularly on young people and their communities. They and we on these Benches do not condone crime, nor do we underestimate the impact that seriously disruptive behaviour can have on people's lives. However, we believe that the proposals on dispersal will not be effective and will simply increase local tensions between those in positions of authority and young people and their families, without effectively tackling the root causes of anti-social behaviour.
The reputable organisations that I have just mentioned urge the Government to reconsider their proposals, and consult with all members of the community including children and young people about the most effective ways of reducing anti-social behaviour while offering the children and families concerned the help that they need. Given the far-reaching nature of these proposals and their impact on children and young people, we are particularly concerned that there is no requirement in the new powers to consult the local community. That is why we have tabled Amendment No. 56.
Young people themselves are also very concerned. A recent NOP poll found that of the 10 to 16 year-olds questioned, seven out of 10 agree that police should not be given powers to move them on if they have not done anything wrong; four out of five say that curfews are not fair because not all young people cause problems; three out of five believe curfews will stop them doing things they enjoy; four out of five say that police are very important in helping children lead safe and secure lives; and four out of five of those questioned say that children sometimes hang out on the streets because there is nowhere else for them to go.
In view of those strongly held views of young people, the absence of a requirement on the face of the Bill to consult with the community is a significant and alarming change to the current situation in respect of curfew schemes under the Crime and Disorder Act 1998. The Act sets out that an application to the Secretary of State for a local child curfew scheme must describe how the local authority proposes to consult the local community to be affected. That can be found in Section 14(l)(b).
One of the difficulties with the original proposals in Part 4 of this Bill is that they removed the partnership approach between the police and the local authority, which is such a key tenet of the Crime and Disorder
1838
Act 1998. We share the concerns of the Local Government Association and others about this and very much welcome the introduction of the Government's Amendment No. 55, which means that authorisation will be given only with the agreement of the local authority. That would facilitate consultation with the local community as set out in my Amendment No. 56.
So we either need this amendment so as to be explicit about that consultation or, at the very least, we seek the Minister's clear assurance that the code of practice will refer explicitly to the need to consult children and young people. That would be in accordance with the Children and Young People's Unit guidance, Learning to Listen. Without this amendment or the Minister's assurance about the guidance, the proposals in the Bill effectively remove power from the local community, a strange contradiction to the ethos of the White Paper statement that,
"to tackle anti-social behaviour we must ensure that the community sets clear standards of behaviour",
and,
"Local people must be encouraged to win back their communities and encouraged by local and central Government to do so".
In Committee, the noble Lord, Lord Bassam, said:
"We agree that the local community should be involved in tackling anti-social behaviour … we would not necessarily want to extend the authorisation process by building in an obligation to consult the local community".—[Official Report, 17/9/03; col. 1002.]
He repeated that this evening. The Minister further stated that he felt that the best way to address this matter was through the code of practice as set out in Clause 34. It is our view that these powers are so far reaching and have raised so much concern about the need to ensure that the imposition of the powers is suitable for the particular area and community concerned, through consultation, that it is of critical importance that they should be reflected on the face of the legislation. I hope that the Minister will agree with that.
7.30 p.m.
Lord Bassam of Brighton: My Lords, when addressing the amendment tabled by the noble Baroness I thought I made it plain that we would seek, by virtue of Clause 34—the code of practice—to ensure that we have community consultation. I can give a commitment to consult all sections of the community; that will be in the code of practice; and, of course that will include young people. That makes a great deal of sense.
The Government have done a great deal through the crime reduction partnerships to ensure that there is careful consultation on the construction of crime and anti-social behaviour patterns of disorder. Because we view local authorities as very important partners, and because local authorities obviously have deep and intrusive roots into local communities, we see their role as being extraordinarily important.

1839
It is perhaps worth reminding the noble Baroness, Lady Walmsley, that these powers are not just restricted to children. She seemed to think that they are aimed just at young people. That is not the case. I thought I had made that point clear at an earlier stage in the Bill. I think that there has been some misunderstanding—I am sure not deliberate—in some quarters about our intent regarding this legislation.
So, we have listened to the points made at an earlier stage in the Bill. We think that it is more important to put the provision into a code of practice. There will be extensive opportunities for consultation; and that consultation will extend to younger members of the community.
Lord Avebury: My Lords, before the Minister sits down, will he clarify that the consultation will take place prior to the authorisation being issued? Will the provision require notice to be given in the locality so that other users of the open space concerned will know what is being planned? I think, for example, of a small open space or a park used by members of the local community who may wish to know that this authorisation is contemplated. My own local park in Lambeth is used by a wide variety of people. An authorisation contemplated in respect of the whole park might have serious implications for other users and they would want to be consulted about it before the authorisation was issued.
Lord Bassam of Brighton: My Lords, I would expect there to be consultation generally about the use of these powers. I think the words I used initially were that we would expect that the crime and disorder reduction partnerships, which as I explained include the police and councils, would engage with the local community to determine whether there are areas in their locality where the use of these powers would be beneficial. Of course there will be consultation in the local communities. There may not necessarily be specific consultation in advance of an authorisation being granted, but there will be extensive consultation about the way and the localities in which these authorisations will take place.
1840
On the question of publicity, Clause 31(3) gives publicity to the authorisation, but after it is issued. I think that there is a benefit to there being extensive publicity. Clearly, it would depend on the strategy being adopted in the area about whether there may be some publicity prior to the event. Certainly, it is our hope that there will be extensive publicity given to the effect of the powers because we want people to understand the import of what is being done and we want communities to understand why these actions are being taken. We want to discourage the form of anti-social behaviour that these activities embody. Therefore, it makes perfect good sense to ensure that there is extensive publicity and that that extensive publicity relates to the behaviour we are trying to prevent.
Baroness Walmsley: Before the Minister sits down, perhaps I may briefly comment on his response on Amendment No. 56, which I shall not move. He was not in his place when I moved Amendment No. 49, but if he reads Hansard I hope that he will be reassured that there is no misunderstanding: I have accepted the many reassurances made by the noble Baroness, Lady Scotland, that the Bill does not just refer to young people.
However, we are reassured and thank the Minister for his explicit assurance that communities, including young people, will be consulted. We hope that that will be done in a timely way. We shall obviously carefully consider the details of the guidance when it is issued, but his reassurances from the Dispatch Box are welcome and I thank him for them.
On Question, amendment agreed to.
[Amendment No. 56 not moved.]
Baroness Scotland of Asthal: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at twenty-four minutes before eight o'clock.