Lords Sitting of 5 July 2004

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

Lord Leitch
Alexander Park Leitch, Esquire, having been created Baron Leitch, of Oakley in Fife, for life—Was, in his robes, introduced between the Lord Levy and the Baroness Goudie.
Baroness Morgan of Drefelin
Delyth Jane Morgan, having been created Baroness Morgan of Drefelin, of Drefelin in the County of Dyfed, for life—Was, in her robes, introduced between the Baroness Gale and the Lord Turnberg.

National Parks
2.48 p.m.
Lord JuddMy Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a vice-president of the Council for National Parks.
The Question was as follows:
To ask Her Majesty's Government what steps they are taking to ensure that government departments are committed to the preservation and enhancement of national parks.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)My Lords, the Government remain completely committed to the purposes of the national parks.
However, the duty on government departments and others to take account of the purposes of national parks needs to be clear. Therefore, my officials will be consulting those who are required to take into account the purposes and a list of the bodies affected, with guidance, will then be publicised.
Lord JuddMy Lords, I hope that my noble friend will accept warmest congratulations on the designation of the New Forest National Park. But how will the Government ensure that that park, with its small boundaries, and those parts of the New Forest Heritage Area not within it are able to fulfil their purposes amidst the huge development pressures of the south-east?
Would my noble friend agree that the pressures and stresses of modern life have made the national parks and areas of outstanding natural beauty more indispensable than ever for the psychological and physical regeneration of the nation and that their invaluable statutory
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purposes—if they are to be fulfilled—demand the unremitting and uncompromising commitment of all government departments and ministries?
Lord WhittyMy Lords, in this, the first National Parks Week, I undoubtedly endorse pretty well all that my noble friend has said. Certainly, the creation of the New Forest National Park is a major step towards protecting the unique landscape and land management in that area, which would otherwise be—and has been—threatened by some development pressures. In that national park and others, we need to take account of the original purposes of the national parks, which are to provide protection and conservation of the landscape as well as an outlet away from the stress of development and other stresses of modern life. Therefore, I agree with my noble friend on that as well.
Lord BridgesMy Lords, is the Minister aware, as I am sure he is, that there appear to be considerable differences of opinion within the Government on this question? Like the noble Lord, Lord Judd, I, too, am a vice-president of the Council for National Parks and am painfully aware of the situation. Does the Minister remember that when we debated the Planning and Compulsory Purchase Bill towards the end of last year, I asked whether the Government would confirm that the Sandford principle still applied? That sets out in statute that should there be a difference between the environmental considerations and the social and economic considerations, the environmental considerations would always win or be given prominence. The Minister and his colleagues very helpfully confirmed that that was the case. However, since then, a senior Minister in Defra has issued a press release on the national parks, written on the official notepaper of his department, with a headline one inch high, saying, "Conservation is not enough". Both these things cannot be true.
Does the Minister agree that it is highly desirable that, should the Government decide to change the Sandford principle or the Act setting up the national parks and AONBs, they should come before Parliament to do so, rather than seeking to nudge the policies in the direction some Ministers require by nods and winks and sharp elbows? I hope that the noble Lord will be able to satisfy me on that.
The noble Lord will be aware of the dangers—
Noble Lords: Oh!
Lord Whitty: My Lords, I have to refute the accusation made in the latter stages of the noble Lord's remarks. Yes, it is true that the Sandford principles still apply and that conservation is the prime purpose, therefore, of national parks. It is also true—and it can be logically reconciled—that conservation of itself is not enough. Conservation requires a degree of economic activity to be clear in relation to the parks, and the enjoyment of conservation requires a degree of access. It is only when issues are in direct conflict that

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the Sandford principles apply. It is therefore important that all these aspects of activity within the national parks are taken into account.
Baroness Miller of Chilthorne DomerMy Lords, I, too, declare an interest as a vice-president of the Council for National Parks. Does the Minister agree that the issue for many national parks is that those who have for generations lived and worked in them find that their children can no longer do so because of the lack of affordable housing? Will he encourage other national parks to look at Exmoor's example, where only housing for local people will be permitted as new build?
Lord WhittyMy Lords, the national parks and the planning authorities have to take account of such aspects in their approach to planning proposals which relate to housing in national parks. It may well be that Exmoor has shown a good example in this respect. This underlines what I was saying—people need to work in national parks and to be able to access their work there if the principles of conservation, preservation and enhancement of the landscape are to be achieved, and that requires a degree of economic activity.
Lord Eden of WintonMy Lords, with regard to the New Forest proposals, is the noble Lord able to confirm that the Court of Verderers will continue to operate, as now, and that those who have grazing rights will continue to have them?
Lord WhittyMy Lords, there are obviously changes in the administration of the national park, but those arrangements will be maintained.
Lord Campbell-SavoursMy Lords, my question will be brief. Will my noble friend block any attempts by any national park authority to charge for vehicular entry?
Lord WhittyMy Lords, my answer needs to be equally brief. I am aware of no such immediate proposition, but it may be part of the way in which a national park authority conducts its business to ensure that there is not over-congestion and that access for the many continues to be achieved by some restriction on excessive access for the few. Therefore, I would not like to rule out all such possibilities.
Baroness NicolMy Lords, I hardly dare admit it, but I, too, am a vice-president of the Council for National Parks. Can my noble friend offer any assurance that during the forthcoming Comprehensive Spending Review, the many benefits that the national parks offer will be recognised and will be adequately resourced?
Lord WhittyMy Lords, I think that your Lordships will recognise that, much as I might desire to do so, I have no authority to anticipate any aspect of the forthcoming spending review.
Lord Dixon-SmithMy Lords, recent draft planning guidance includes the following sentence:
"Regional planning bodies and local planning authorities should not create 'buffer zones' around international or nationally designated areas and apply policies to these zones that prevent the development of renewable energy projects".
That appears to suggest that the Government might be sanguine about what I would call a ring fence of wind farms around the periphery of national parks. Would the Minister care to comment?
Lord WhittyMy Lords, the sentence to which the noble Lord refers, covers a wider range of matters than wind farms, although I know that he and many of his colleagues are obsessed with proposals for wind farms. Clearly, however, wind farms or other large projects close to national parks would have to take into account the objectives of national parks, but that would not mean that every development within X yards to miles of a national park would automatically be covered by the same restrictions as apply within the national park.

Age Discrimination
2.57 p.m.
Baroness Greengrossasked Her Majesty's Government:
When they will publish the draft regulations on age discrimination in employment and vocational training following the Equality and Diversity: Age Matters consultation paper, published in July 2003.
Lord Davies of OldhamMy Lords, the Government are currently reviewing the timetable for future consultation on the legislation outlawing discrimination on the grounds of age in employment and vocational training. We are doing so in light of our clear commitment to give those with rights and responsibilities as much time as possible to prepare for the new legislation coming into force. We remain on course for the legislation coming into force on 1 October 2006. We shall announce the new timetable as soon as possible.
Baroness GreengrossMy Lords, I thank the noble Lord for that reply. We all wait with bated breath for the Government's view; the sooner we hear that, the better. However, I urge the noble Lord to be brave and opt for no mandatory retirement age, even though I fully understand the difficulties many employers face, or will face.
Does the noble Lord agree with this week's Economist that "culling by age" is a reflection of "lazy management", and that we will have to tackle this difficult issue sooner or later? Is he aware of how important it is to get across to the media, as well as employers and employees, the fact that retirement age is not the same as pension age?
Lord Davies of OldhamMy Lords, the noble Baroness is a powerful advocate in this cause. She will

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recognise that the Government are also concerned to emphasise that there is no relationship between retirement age and when the state pension is paid.
On the broader issue, the noble Baroness, who has many friends in government, will also know that there is much to be debated in the country as a whole. The long-term issues are quite clear, but she will appreciate that the short-term costs are frequently borne by business. That is why we need to engage in full consultation on these issues.
Lord Brooke of Sutton MandevilleMy Lords, why are the Government proposing to express this matter not in the form of primary legislation, which can be amended, but in regulations, which cannot, given the scale and latitude of discretion which the directive affords us in this country?
Lord Davies of OldhamMy Lords, we are intending to conduct the fullest possible consultation on the nature of the legislation, bearing in mind the important point that we need to get the legislation right. That is why we have been engaged in consultation during the past year on the Age Matters framework. We shall of course not be introducing any legislation until October 2006. By that time, we expect to get the legislation right.
Lord PestonMy Lords, is the Minister aware that your Lordships' Economic Affairs Committee studied this subject at enormous length and published a major report on it? Perhaps he is not aware of it because it has been six months since the report appeared and we have not yet found a minute in which to debate it. None the less, in that report, we showed the enormous scale of ageism and age discrimination in employment in this country. We showed in particular that among the worst offenders was the public sector itself. We do not need legislation for the public sector to put its house in order and stop discriminating against the employment, the education and the training of older people."Older" these days seems to mean over 40, which, in this House, would mean that we would all be finished long ago.
Lord Davies of OldhamMy Lords, my noble friend is another powerful voice in the cause as is the committee which he chairs. He will recognise that while our consultation is going on—the public bodies too are playing their part in it—we will be bearing in mind how the argument is developing. I assure him that we are on course to meet our requirements under the directive. Lest noble Lords think that the Government look unduly tardy on this issue, I emphasise how difficult the issues are and that, as my noble friend knows, all other countries in the European Union, with very few exceptions, are very wary about the decisions that they intend to take, because they are of profound significance to our societies.
Baroness BarkerMy Lords, is the Minister aware that there is a perception that while the DTI may be, in his words, "unduly tardy", the DWP is not? Older people
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who are seeking to extend their working life may ultimately find themselves caught between the two. Does the Minister agree that there is a greater need to change the attitudes of employers than those of older people who want to work?
Lord Davies of OldhamMy Lords, on complex and difficult issues such as this, it is not entirely surprising that different government departments start out from different positions and those need to be reconciled in government policy and future legislation. The noble Baroness is quite right. In my original Answer to the noble Baroness, Lady Greengross, I was seeking to emphasise that there are key issues with regard to the attitudes of employers in this country to age discrimination and that it is not an easy issue for us to resolve. Nevertheless, we recognise the developing strength of opinion that ageism, like any other form of arbitrary discrimination, is not acceptable in our society.
Baroness Miller of HendonMy Lords, will the Minister acknowledge that a major problem for older workers who seek new employment is the existence of company pension schemes which mitigate against late entry? Would the regulations prohibit the treating of such pensions as a valid reason for not employing older workers?
Lord Davies of OldhamMy Lords, that is a very important dimension. That is why the Government have been concerned to increase the flexibility of pensions. We all recognise that it is a severe barrier to people changing jobs if enormous costs are to be borne in terms of their pension entitlements. That is one of the many factors which make this issue very difficult for us to resolve and why it is important that we should get the matter right.
Lord Lester of Herne HillMy Lords—
Baroness Howe of IdlicoteMy Lords—
The Lord President of the Council (Baroness Amos)My Lords, we are on 15 minutes.

Draft European Constitution
3.4 p.m.
Lord Thomas of Swynnertonasked Her Majesty's Government:
Whether they will commission a revised version of the draft European constitution in plain English.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean)My Lords, the Foreign and Commonwealth Office is currently in the process of producing a short and clear

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guide to the Constitutional Treaty, setting out its main points in plain English, as promised by the Prime Minister on 4 May.
Lord Thomas of SwynnertonMy Lords, I thank the Minister for that reply. Speaking as a "human person", as defined in the preamble to the treaty, does she realise how this badly written, badly translated, often vacuous and repetitious document damages the European cause? Would it not be wise to have not just a guide, but a completely rewritten document in plain English, to serve as a kind of unofficial, but authorised, substitute?
Baroness Symons of Vernham DeanMy Lords, I am not sure what kind of person one might be other than a human person, but answering as a human person, I think that that there has been a great deal of misinformation about what the treaty says, particularly in some sections of the media. It is important that the British public is provided with the facts. A plain-speaking guide will enable an informed decision on what the treaty really means. There is, however, a process still to be followed. In a week's time, representatives of each member state will run through the treaty with the juris linguis. All amendments will then be agreed by consensus, so we will not receive a final text, agreed by all 25 countries, until about the end of October, but we would hope to publish something by the end of the year.
Lord Howell of GuildfordMy Lords, I am sure that the Minister is right in saying that there is a good deal of room for misinformation on the whole of the project. However, will she clarify one matter? Do the Government regard the document on offer as a proper written constitution, in which every word in the text therefore has legal validity and is justiciable in the European Court of Justice, or do they regard it as just another broad set of aspirations? If the former, is it not difficult to see how it can be shortened or how a guide can be developed which does not end up being misleading and undermining the guidance of the view taken by the courts, which will be very strictly according to the precise text and what is in it?
Baroness Symons of Vernham DeanMy Lords, I can well understand the noble Lord's point. One has to be enormously careful about any document that is a guide to a treaty, particularly when treaty language is so important. That is why I stressed my point about the juris linguis to the noble Lord, Lord Thomas of Swynnerton. We need to see the documents that are produced together—the final version as it has been agreed across the 25 languages—and the guide at the same time. However, I assure noble Lords that my right honourable friend the Foreign Secretary is sensitive to the point that the noble Lord, Lord Thomas of Swynnerton, has raised and that Ministers will be careful in the language used.
Lord TomlinsonMy Lords, when the Foreign Office has finished producing a summary in simple English,
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will it turn its attention to producing an annotated version of the treaty so that we can see quite clearly how many of the clauses in the new treaty are completely unchanged from existing texts? We could therefore determine where the original liability for those words actually lay.
Baroness Symons of Vernham DeanYes, my Lords, we shall certainly be doing that. The Foreign Office is going to publish a wide range of material to accompany the Constitutional Treaty in addition to the lay person's guide, including—my noble friend will he pleased to hear it—a comprehensive analysis and comparison of the existing treaties and the new Constitutional Treaty. I look forward to that very much.
Lord Maclennan of RogartMy Lords, while the lapidary clarity of the United States may not have given legal certainty, will the Minister agree that those scholars who have gone beyond the age of reading Janet and John might find the draft constitution quite a good read? It will be further embellished by the simplicity of the Government's guide, which will be strongly welcomed. It would be highly desirable if it were delivered to the households of all those who will have ultimately to make up their minds whether to accept the extravagancies of much of our British press.
Baroness Symons of Vernham DeanMy Lords, it is certainly an informative read. It will be even more informative when the British people are able to look at what is in the Constitutional Treaty and compare it to the four preceding treaties. There is an incredible amount of nonsense around claiming that the treaty is breaking new ground in all sorts of areas where it is in fact reiterating ground that has been well covered in the past. Of course no one would deny that there are some new areas, but much of what we have heard is pure sensationalism.
Lord Pearson of RannochMy Lords, is the Minister suggesting that the British people are aware of what is in the present treaty, up to and including the Treaty of Nice? If so, how did they become aware of it when there has been no national debate about the present situation?
Baroness Symons of Vernham Dean: My Lords, many people on reading our national newspapers will think that the treaty is breaking new ground in all sorts of areas when, as the noble Lord himself has said many times in this House, some of the issues complained about in the press have been part and parcel of the current European Union since the signing of the accession treaty. We have been over this ground before. The noble Lord has been frank in his view that he believes that what is wrong with the European Union goes back to the treaty of accession through the Single European Act, Maastricht and everything else. We need to understand where all those issues begin.
Lord Phillips of SudburyMy Lords, will the Minister assure the House that the text of the lay

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version to which she referred is not contentious and therefore it is widely accepted as being a fair reflection of the constitution? Will she therefore consult the other parties and interests to that end and, as my noble friend Lord Maclennan requested, distribute a copy to every house in the land?
Baroness Symons of Vernham DeanMy Lords, I fear that it will be impossible to write a document on the European Union that is not contentious somewhere. We all know, even discussing issues in the most neutral terms in your Lordships' House where there could be no fairer jury, that there will be contention in whatever is said.
This will not be part of the referendum exercise, which of course will come under the aegis of the Electoral Commission. Whether it will be delivered to every house is exactly the sort of issue on which my right honourable friend the Foreign Secretary is currently consulting Ministers and elsewhere. I shall certainly convey to him the views expressed by the noble Lord, Lord Phillips.

Commission for Patient and Public Involvement in Health
3.12 p.m.
Baroness Gardner of Parkesasked Her Majesty's Government:
Whether, as reported, they propose to abolish the Commission for Patient and Public Involvement in Health.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner)My Lords, the Secretary of State for Health's Statement of 20 May 2004 made it clear that one of the parameters for the review of Department of Health arm's-length bodies was a 50 per cent reduction in the number of those bodies. A report on the review will be published later this month, which may affect the position of the Commission for Patient and Public Involvement in Health. However, the Government are committed to the long-term future of patients' forums.
Baroness Gardner of ParkesMy Lords, I thank the Minister for that Answer. Does he recall that on 18 May, less than seven weeks ago, he said,
"My Lords, we are satisfied generally with the progress made"?
In reply to a supplementary question that I asked—it was not my Question—he explained at col. 641 that the commission was responsible for putting in place the system. He went on to say,
"We need to give the system time to run at local level to ensure that it is the success that we all want".—[Official Report, 18/5/04; cols. 640–41.]
How can he account for the great change of heart in such a short time when he appeared to be so satisfied? It is now said that in spite of the spend of £23 million and the 150 staff employed by the commission it may be abolished.
Lord WarnerMy Lords, I am afraid that the noble Baroness will have to wait patiently until later in July to see the way in which we immaculately reconcile the views I expressed earlier with the Government's future policy.
Baroness PitkeathleyMy Lords, does my noble friend agree that the Government's record on patient and public involvement and the encouragement thereof is second to none; and that proof is given by the establishment of a senior post within the Department of Health to ensure that the voice of the patient is strong throughout policy development?
Lord WarnerMy Lords, my noble friend is right. Patients' forums are the cornerstone of the arrangements we have put in place to create opportunities for patients and the public to influence health services. We are completely committed to those forums and ensuring that we capitalise on the momentum that they have begun to generate in influencing the delivery of health services locally.
Baroness BarkerMy Lords, while the Minister pronounced the Government generally satisfied on the development of forums, is he aware that the chair of the London Ambulance Service forum said recently that forums have virtually no capacity to scrutinise the NHS because they have no resources, no facilities and no infrastructure? In view of that, can he defend the increased amount of money spent on the Commission for Patient and Public Involvement in Health compared to the one that was effectively run by community health councils?
Lord WarnerMy Lords, the noble Baroness will have to await the review's report on arm's-length bodies later in the month. We know that some people have expressed concerns about particular forums.
Baroness Carnegy of LourMy Lords, will the Government tell the House what is the current take-up of places on patients' forums?
Lord WarnerMy Lords, about 5,000 people have been appointed to patients' forums.
Baroness Carnegy of Lour Baroness Carnegy of Lour: T
Lord WarnerMy Lords, as I understand it, all forums have met their minimum legislative requirements in terms of members, which from memory is seven, but I shall check that figure and write to the noble Baroness.
Earl HoweMy Lords, whatever the Government's decision on the commission's future, will the Minister confirm that its main functions of supplying staff to patients' forums and performance managing them to

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national quality standards are of central importance if there is to be proper scrutiny of the health service by patients?
Lord WarnerMy Lords, we certainly accept that the commission's main functions are to support, fund and advise patients' forums and it is critical to their success that those functions continue to be discharged properly in the future.
Baroness Gardner of ParkesMy Lords, is the Minister satisfied that the work currently being carried out is as good as when the community health councils were running things?
Lord WarnerMy Lords, the noble Baroness is ingenious at trying to get more out of me than I am prepared to say. She will have to wait patiently until later this month.
Baroness TrumpingtonMy Lords, if the Government are to close those helpful forums for patients to put their point of view into the machine, what will take their place?
Lord WarnerMy Lords, the noble Baroness must have misheard me. I said that the Government were committed to patients' forums continuing into the future. We were discussing in the Question the position of the Commission for Patient and Public Involvement in Health.

Fire and Rescue Services Bill
3.18 p.m.
Lord GrocottMy Lords, on behalf of my noble friend Lord Rooker, I beg to move the Motion standing in his name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 52,

Schedule 1,
Clause 53,
Schedule 2,
Clauses 54 to 62.—(Lord Grocott.)
On Question, Motion agreed to.

University of Wales, Cardiff Bill [H.L.]
Lord GrocottMy Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the University of Wales, Cardiff Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Read a third time, and passed, and sent to the Commons.

Consolidated Fund (Appropriation) Bill
3.19 p.m.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey)My Lords, I beg to move that this Bill be now read a second time.
Moved accordingly, and, on Question, Bill read a second time; Committee negatived.
Then, Standing Order 47 having been dispensed with, read a third time, and passed.

Children Bill [H.L.]
3.19 p.m.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland)My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Finlay of Llandaffmoved Amendment No. 106:
After Clause 48, insert the following new clause—
"REASONABLE CHASTISEMENT

Battery of a child cannot be justified in any proceedings on the grounds that it constituted lawful punishment.

(2) Battery of a child is not unlawful if the act amounts to the use of reasonable force in order to—

avert an immediate danger to the child or any other person;

(b) avert an immediate danger to property; or

(c) prevent the commission of a crime, or an act which would be a crime if the child had reached the age of criminal responsibility.

(3) For the purpose of subsections (1) and (2) above "child" means a person under the age of 18.

(4) Section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under sixteen) is amended as follows.

(5) In subsection (7) at end insert "subject to subsection (8) below".

(6) After subsection (7) insert—

"(8) Corporal punishment administered to a child cannot be justified in any proceedings on the ground that it was administered in pursuance of a right exercisable by virtue of subsection (7) above.

(9) For the purpose of subsection (8) above, administering corporal punishment to a child means doing anything for the purpose of punishing that child which would constitute unlawful battery."

(7) This section extends to England and Wales only."

The noble Baroness saidMy Lords, the aim of the amendment is to give children the same protection from assault as adults currently enjoy, and yet allow parents to take actions needed to protect their child and others from danger. The issues behind this amendment go to the very heart of our own personal experiences as parents and children. Let me make it clear from the outset: I am not against disciplining

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children. I am known to be strict and have firm boundaries. I greatly appreciate the time that the Minister has spent with me and others, discussing this issue in depth.
We have legislated for equality of opportunity and against discrimination in our society. We protect in law all our citizens from battery—but not our children. We have failed to give children equal protection in law from assault. Today noble Lords are being asked to consider whether assaulting children is right, or whether the time has come to listen to the evidence from those countries that have taken steps to respect their children and acknowledge their human rights.
We insist on zero tolerance of domestic violence once someone is 18, but for those under one year old, our society accepts that more than half will be hit at least weekly by their parents—14 per cent with moderate severity—and for what? They are hit for being hungry, or for needing a nappy change or a cuddle. By the time children are four, the Department for Health's own data reveals 38 per cent are hit more than once a week, often moderately severely and behind closed doors in the privacy of the family home. They often do not know what they did to deserve the hit; they are being taught that the way to get someone to do what they want is to hit him. The Government's Social Exclusion Unit found that eight out of 10 child runaways cite family violence as the cause. As one child runaway said, "I was sick of my dad and his girlfriend hitting me".
Twelve days' ago, the Parliamentary Assembly of the Council of Europe noted that the European Court of Human Rights has found in successive judgments that corporal punishment violates children's rights under the Convention for the Protection of Human Rights and Fundamental Freedoms. Those decisions applied most recently within the family home; moreover, both the European Commissioner for Human Rights and the Court have emphasised that banning all corporal punishment does not breach the right to private or family life or religious freedom. The Association of Chief Police Officers, whose chairman has mailed me today to wish us good luck, and the Association of Directors of Social Services, have both issued statements in support of our amendments and have stated that they want to be directly involved in drawing up guidelines for handling reports against parents.
Amendment No. 106 is absolutist. It gives a clear message, in line with the Parliamentary Assembly of the Council of Europe, which considers that,
"any corporal punishment of children is in breach of their fundamental right to human dignity and physical integrity. The fact that such corporal punishment is still lawful in certain member states violates their equally fundamental right to the same legal protection as adults. Striking a human being is prohibited in European society, and children are human beings. The social and legal acceptance of corporal punishment of children must be ended".
Children tell us how much smacking hurts them. It hurts them, not only physically but inside. They tell us that they think that very young children should never be hit and that it teaches a child a way in which to get
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control over someone else's behaviour—so it is hardly surprising that they are the children that go on to hit others.
In Committee it was said that the kind of punishment that results in injury is clearly not reasonable chastisement and, as such, is already against the law. Sadly, however, there are cases to prove that point wrong. The very existence of the defence sends a clear message that hitting children is acceptable and lawful. Very few cases reach court because of the existence of the defence; the police, the Crown Prosecution Service, social workers, paediatricians and so on, know of the defence and so do not press cases. That means that many assaults remain hidden from the public documenting procedures. In fact, prevalence research reveals a huge problem of violence against children and the family.
The Government are increasingly forceful in ensuring that violence in other forms is cracked down on, yet appear to condone, by resisting equal protection, the silent epidemic—that 700,000 under-one year-olds are hit in the privacy of their home before language and reasoning develop. Well over 4 million children in England and Wales experience being hit more than once a week in the name of discipline, year on year. Although one adult parent cannot hit the other parent, 97 per cent of these parents can continue to hit their child, aged one to four years.
Amendment No. 106 would not create a new offence but would mean that any assault that would be classed as criminal assault if aimed at an adult would become a criminal assault if aimed at a child. That is what equal protection means—it is not new. Since Committee stage, the Association of Directors of Social Services has reaffirmed its strong support for equal protection. It has taken a policy decision to support this position, not because it has any interest in parents being prosecuted for trivial matters but because it believes that children should be afforded the same protection of the law as other citizens.
The association feels that the new clause would not lower the thresholds for assessing the risks of significant harm, but would go a long way towards removing existing legal ambiguities concerning the protection of children and the rights of parents and carers to inflict violence on children. Such assessment focuses on the needs of the child, predicated on the principle enshrined in the Children Act 1989 that, wherever possible, those needs are best served within the child's own family. They, like the vast majority of your Lordships, believe that children can and should be firmly disciplined and be subject to clear, consistent parental controls, but that can be achieved without inflicting violence on children.
I have carefully read the evidence of the Director of Public Prosecutions to the Joint Committee on Human Rights, as I fear that he has been widely and selectively misquoted. Just as most minor assaults against adults are not prosecuted, he suspected that most minor assaults would not be either. Such prosecutions would be very rare. But of course he emphasised that the far greater vulnerability of

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children meant that he could not guarantee that it would never be in the public interest to prosecute in such cases, citing examples of particularly vulnerable children, such as a mentally handicapped child. The best interests of the child victim are invariably considered as part of the public interest test.
I encourage the minority who spoke in Committee on the perceived benefits of smacking to review all the research in the area. Overall, long-term outcomes of physical punishment in childhood show increased aggression and violent behaviour as a child and when adult; less capacity for empathy; less internalisation of moral aspects of discipline; increased probability of anti-social and criminal behaviour in adulthood, including spousal and/or child abuse; and evidence of compromised mental health.
Let us be clear, however. We do not expect to see research into the harmful effects of slapping women or mistreating elderly people in care homes. We assert their human right to the full protection of the law. We do not have to prove that smacking children is harmful to justify extending to them the protection that all other larger people take for granted. They share with us an equal human right to respect for their human dignity and physical integrity.
Research overwhelmingly supports equal protection. But let us not be diverted into the arguments that distract attention from the basic wrong that we have an opportunity to right. Children tell us that the hitting occurs behind closed doors, where no one can see. Some know that their parents are ashamed of it much of the time, while others live in fear, not knowing what today will be allowed and tomorrow will receive a clout. We know that the baby's brain, and hence personality and behaviour, develop in response to stimuli. Calm loving will develop a disciplined mind; chaotic, violent families teach violence to their children, and those are the children who go on to perform poorly at school, are less able to resolve conflict without violence and are more likely to end up in youth custody. The child learns that the best way to get people smaller than himself to do what he wants is to hit them.
We can reverse the trend. Respecting the human rights of children promotes their dignified personal development. Amendment No. 106 aims to prevent the escalation of battery into systematic abuse. Prevention is all. Our amendment gives a clear message to society that hitting is wrong. When visible physical injury occurs, it is too late. We have to grasp and pursue the principle and then set about ensuring that the law provides equal protection and is implemented in the best interests of children.
3.30 p.m.
The new clause proposed in Amendment No. 106 has the support of 400-plus associations and people representing all elements of the child protection service that has signed up to the stated aim of the Children are Unbeatable! Alliance—which is the aim of equal protection. They have not done so without careful
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thought. It is not an easy issue, but we have to move on as this huge body of professional opinion has already moved on in the light of evidence.
It seems absurd to say that equal protection is unworkable when children in 12 countries in Europe—just over a fifth of Europe's children—already enjoy equal protection from assault, most recently in Romania and Ukraine. That is a fundamental human rights issue. Article 19 of the UN Convention on the Rights of the Child requires states to take appropriate legislative and other measures to protect the child from all forms of physical or mental violence while in the care of parents or others. The Committee on the Rights of the Child has told the UK twice with increasing emphasis that we must prohibit all corporal punishment. The European Committee of Social Rights takes the same position. Let us be clear. The child learns that the way to get someone to do what you want is to hit them, especially if they are smaller than you.
I am aware that Amendment No. 106B, which I will address briefly, seems seductive. It appears at first sight to help to prevent abuse, but it does not prevent children being assaulted. Amendment No. 106B takes away the defence of reasonable chastisement in the case of a statutory offence, as in subsection (2). However, it leaves parents able to justify common assault—hitting and hurting—as reasonable punishment. You would still need to prove bodily harm; that is, something to show. Yet considerable soft-tissue damage, including brain damage, can leave no external mark, no fracture on X-ray, and it can be very difficult to prove that it was related to the witnessed episode of battery. The physical force behind a smack is very seriously underestimated by over half of hitters. It does not prevent the repeated subtle physical punishment of children behind closed doors, which cleverly results in no visible bodily harm when the child is next with those who might spot it. That makes it very difficult, if not impossible, to bring proceedings. Our amendment stops assault, but explicitly recognises the importance of protecting children.
Amendment No. 106B gives a mixed message to the public. As it says, you can go on hitting children, then you have to pick and choose between offences, to know whether you were acting lawfully or unlawfully. Our amendment simply says that hitting children is wrong. I do not consider that Amendment No. 106B would satisfy our human rights obligations under the UN Convention on the Rights of the Child or the European Social Charter. The Committee on the Rights of the Child specifically emphasised in its report to the UK in October 2002 that proposals to limit rather than to remove the right to use corporal punishment do not comply with the principles and provisions of the convention. The committee stated that suggesting that some forms of corporal punishment are acceptable undermines educational measures to promote positive and non-violent discipline. The European Committee of Social Rights takes the same position.

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The Bill is about children. Suzie, aged seven, said:
"If they changed the law then a lot of people will realise what they had done to their child, and they would probably be happy the law was changed. If they don't change the law they will think `Oh, well the child doesn't mind so we can just keep on doing it like we always have"'.
Amy, aged nine, said:
"A big person should not hit a small person, not anyone, ever".
Children should have equal protection under the law on assault. That is the effect of the new clause proposed by Amendment No. 106, with appropriate reassurance that parents can use physical actions to protect and restrain children, protect property and prevent the commission of a crime. As the European Convention on Human Rights and the Court have emphasised, banning corporal punishment does not breach the right to private or family life. I beg to move.
Lord Lester of Herne HillMy Lords, Amendment No. 106B, standing in my name, offers an alternative approach to Amendment No. 106. I share the common aim of the noble Baroness, Lady Finlay of Llandaff, and the other supporters of Amendment No. 106. The abusive punishment of children is a serious social evil and the existing law needs to be strengthened to increase child protection. Like them, I believe that parents' unnecessary resort to smacking to discipline their children to be undesirable and, like many parents, I have to plead guilty to having done so myself on rare occasions.
But I have the misfortune to disagree about the choice of means adopted in Amendment No. 106, and regard it as fatally flawed. Unlike Amendment No. 106, my amendment seeks to outlaw abusive punishment without also outlawing reasonable parental discipline of children. Amendment No. 106B seeks to do so in a way that achieves the reasonable legal certainty required by human rights law. It was in fact not me but the Director of Public Prosecutions, Ken Macdonald QC, who considered that that could be a possible solution when he gave evidence to the Joint Committee on Human Rights on 19 May.
According to my amendment, child battery cannot be justified as a "reasonable punishment" in any proceedings for wounding and causing grievous bodily harm, or for cruelty to children under 16, or for assault occasioning actual bodily harm. The meaning of "actual bodily harm" under English law was conveniently summarised by the European Court of Human Rights in the case of A v United Kingdom as including,
"any hurt or injury calculated to interfere with the health or comfort of the victim; the hurt or injury need not be permanent but must be more than transitory or trifling".
It is also an offence under Section 1(1) of the Children and Young Persons Act 1933 to commit acts of cruelty to children, for example, to assault or ill-treat a child in a manner likely to cause the child unnecessary suffering or injury to health.
My amendment ensures that it will not be possible to justify as a reasonable punishment an assault occasioning actual bodily harm. Such a justification was relied upon in the notorious case of A v United Kingdom, where a jury
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acquitted a stepfather who had caned a nine-year-old boy with considerable force on several occasions, causing serious bruising to the child. The European Court held, with this Government's agreement, that the failure to provide adequate protection in English law was a violation of Article 3 of the Convention on Human Rights. The court awarded £10,000 compensation and the Government undertook to amend the law.
My amendment seeks to give effect to that important government undertaking to the Strasbourg Court. Any assault occasioning actual bodily harm to a child will not be justified as constituting a reasonable punishment. That will put children on the same basis as adults in such cases.
It is also an offence under Section 1(1) of the Children and Young Persons Act 1933 to commit acts of cruelty to children, for example, to assault or ill treat a child in a manner likely to cause the child unnecessary suffering or injury to health. My amendment would repeal the archaic and anomalous Section 1(7) of the 1933 Act, which allows parents to claim that acts of wilful assault that cause suffering to a child are reasonable punishment.
I shall not explain my objection to the amendments of my noble friend Lord Thomas of Gresford to my own amendment. They confuse the issue by seeking to convert my amendment into something akin to Amendment No. 106—a cuckoo in the nest. If Amendment No. 106 does not pass muster, I hope that the House will not be beguiled by his advocacy into treating the Thomas amendment as a workable compromise when in reality it would distort both the criminal and civil law of assault and their effectiveness.
I am delighted that the Attorney-General is in his place and I hope that he will be in a position to advise the House on the legal effect of all three sets of amendments. I am grateful to him and to Ministers for their willingness to discuss this important issue. It was as a result of our discussion that I withdrew my original Amendment No. 106A for its lack of legal certainty, and tabled Amendment No. 106B instead.
I greatly welcome the support of the noble Lord, Lord Laming, because he has such great experience and authority from the Victoria Climbiáe inquiry. I also welcome the strong and significant support of Liberty which, like me, is a signatory of the Children are Unbeatable! Alliance.
As I say, there is a need to strengthen legal protection for children whose parents are violent towards them, but I do not believe that parents should be criminalised for administering a light disciplinary smack because it is technically a battery; nor do I believe that equality requires such an extension of the criminal law.
Amendment No. 106 is seriously flawed. It is both over inclusive and under inclusive. It is over inclusive because it sweeps too broadly. It makes criminal any battery of a child however trivial and in whatever circumstances unless such conduct comes within the exceptions in subsection (2) of the proposed new clause. It does so even though its supporters, including my own party, do not intend that minor parental

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smacking should lead to a criminal prosecution. It is under inclusive because the exceptions in subsection (2) would authorise the use of reasonable force on a child, for example, to,
"avert an immediate danger to property; or prevent the commission of a crime",
exceptions that are dangerously broad and vague. Yet it would not cover the case where a parent smacks a child who has run into the road for the fifth time but whose life is not in immediate danger. Amendment No. 106 fails to ensure sufficient child protection and it lacks proportionality and reasonable legal certainty.
The Children are Unbeatable! Alliance does not campaign under the slogan, "Children are Unsmackable". If it did so, it would lose much of its support. That was recognised by my noble friend Lady Walmsley when she explained during the Second Reading debate on 30 March that:
"It is important to make it clear that the public interest will not be served by prosecuting caring parents for an occasional quick smack".—[Official Report, 30/3/04; col. 1222.]
In her reply the Minister explained that while the Government would not support a ban on smacking,
"The kind of punishment that results in injury is clearly not reasonable chastisement and as such is already against the law".—[Official Report, 30/3/04; col. 1308.]
That was an important ministerial statement by the noble Baroness, Lady Ashton, that needs to be made clear in the Bill, as I have sought to do.
The question for the House is not whether parental smacking is undesirable, just as the use of violent language, screaming and swearing at a child are undesirable and a failure of parental authority, but whether all parental smacking should constitute a criminal offence, even where it does not cause physical or mental harm.
The alliance itself recognises that smacking which does not cause physical or mental harm should not result in the prosecution of the offending parent. It seeks to rely upon the Director of Public Prosecution's discretion to ensure that a battery in the form of parental smacking, which involves no harm to a child, would not in practice be the subject of a criminal prosecution. However, the director explained on 19 May to the Joint Select Committee on Human Rights, of which I am a member, why reasonable legal certainty is an essential requirement of the criminal law, and that it is for Parliament rather than the director to decide whether parental smacking, as distinct from beating, should be criminalised. Nor in my view can the absence of sufficient legal certainty be addressed by the publication of guidelines. Indeed, the director has made it clear that he could not publish guidelines which fettered his discretion and that it is for Parliament to decide the key issues of legal public policy in the way we make the law.
The principle of legal certainty requires the law, and especially the criminal law, to be adequately accessible. The citizen must be able to have a sufficient indication of the legal rules applicable to a given case. The law must be formulated with sufficient precision to enable
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the citizen to regulate her or his conduct. The citizen must be able reasonably to foresee the consequences that a given action may cause. The prosecuting authorities retain their vital discretion to ensure that proceedings are brought only in the public interest. However, what is unacceptable is to leave the scope and definition of the law to the discretion of the prosecuting authorities.
3.45 p.m.
If a law is enacted with no intention that a part of it should be enforced in practice, this not only brings the law into public disrepute, it also means a lack of legal certainty. If the meaning of the law is vague and leaves its scope and definition to the discretion of a public officer, that, too, means a lack of legal certainty and will weaken effective law enforcement in cases of abusive parental violence against children. My amendment seeks to achieve greater legal certainty by clarifying the legal framework protecting children from parental violence and abuse.
Like the noble Baroness, the alliance seeks legal reform to give children the same protection under the law on assault as adults. The principle of equal protection of the law is indeed another vital constitutional principle, anchored in international human rights law. I have worked throughout my life to translate the principle of equality into practical reality. However, it is not a mechanistic principle requiring literal equality in all circumstances. In law, as elsewhere, context is everything. Most people would surely agree that there is a difference between light parental smacking to discipline or train a naughty child and the hitting of one adult by another. A smack by a loving and anxious parent whose child has run into the road for the fifth time, despite repeated warnings, is not to be equated with a minor act of violence against an adult. Both involve battery but the context is different. Yet, as I have explained, Amendment No. 106 would criminalise such disciplinary action by a parent who seeks to teach the child not to run into the road again.
I think most people would agree that parents are responsible for disciplining their children as part of child-rearing, whereas adults do not have that responsibility for disciplining each other. In other words, the context is different when a parent smacks her child from when an adult smacks another adult. It is important for the law to recognise this commonsense difference, as it does in giving special protection to children in the criminal law that is not provided for adults.
In his second treatise on civil government, John Locke noted, in the chapter on parental power, that children,
"are not born in the full state of equality, though they are born to it",
a quotation drawn to my attention by my ever learned noble friend Lord Russell. It is a total misunderstanding of the principle of equality to ignore the context of parental discipline which does not apply as between adults.

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I am indebted to the Minister and to the noble and learned Lord the Attorney-General for their open-minded and positive approach. I pay particular tribute to the noble Baroness, Lady Ashton, for her wisdom and enlightenment. I hope that they will be able to confirm as a matter both of policy and law that my amendment constitutes a significant further advance, clarifying the law and making it possible for the law to draw a workable distinction between abusive punishment that is unlawful and parental disciplinary conduct that is not unlawful.
Finally, I turn to the Convention on the Rights of the Child, which is trotted out again and again. Contrary to the advice given to the alliance, my amendment would meet the UK's obligations under Article 19 and Article 37(a) of that convention and would be a proportionate response to the pressing social need to protect children from all forms of physical or mental violence, injury or abuse. Article 19 requires states to take,
"all appropriate legislative, administrative, social and educational measures"
to protect the child against maltreatment while in the care of a parent or guardian or any other person who has the care of the child. It deliberately leaves a wide area of discretionary judgment to the state—
Baroness WhitakerMy Lords, I apologise for interrupting the noble Lord, but does not Article 19 ask states parties to take,
"all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence"?
I emphasise the words "all forms".
Lord Lester of Herne HillMy Lords, of course, it does, but I was concentrating on the words,
"all … legislative, administrative, social and educational measures".
It leaves a wide area of discretionary judgment to the state to choose the appropriate means of providing such protection not only through legislation but also through,
"administrative, social and educational measures".
It does not require uniform solutions, and unless parental conduct involves,
"physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse",
it falls outside Article 19. Article 37(a) says that,
"no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment".
Neither provision obliges the UK to criminalise a parent for disciplinary acts of battery that cause no mental or physical harm.
Baroness WalmsleyMy Lords, does my noble friend recall that the Committee responsible for monitoring the UK's compliance with the convention has three times been extremely critical of the failure of
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the UK to change its legislation, not its education and social standards? In October 2002, the Committee said it was,
"very concerned that legislation prohibiting all corporal punishment in this context is not yet in place in England, Scotland or Northern Ireland".
That is only one of several quotes I could give the House, but I shall not waste any more time. I hope my noble friend will accept that.
Lord Lester of Herne HillMy Lords, of course I am aware of that too, but the UN Committee on the Rights of the Child has to construe what is in the convention. I challenge any human rights lawyer to be able to demonstrate that what I have said is in error. The convention gives a wide area of discretionary judgment as to means. The legislation needs to be there, which is why I have introduced my amendment in order to produce legislative reform and not leave it entirely to the courts. I do not understand any expert on international human rights law who reads the words and looks at the background to that convention to say, as I think my noble friend is implying, that all states must criminalise by legislation all parental smacking. International human rights law does not go so far—it has a sense of proportion.
Forty years ago, a great judge told his fellow Americans that,
"The spirit of liberty is the spirit that is not too sure that it is right".
I also try to apply that to myself, you will be surprised to note. In an area where many campaign with what I can only describe as dogmatic certainty, it may be timely to remind ourselves of that enlightened, truly liberal wisdom.
Lord Thomas of GresfordMy Lords, I speak to Amendment No. 106, and to my own Amendments Nos. 106C, 106D and 106E. My noble friend referred to me as a cuckoo in the nest. Well, normally we sing very sweetly together, and I hope we will do so again. As for my nest, I brought up four children in it—or rather my wife did, with my assistance—with a copy of Dr Spock set up against the twigs that formed our nest. Dr Spock is not the last word on childcare; indeed, I presented a copy of his work to my daughter-in-law not so long ago—a family relic, minus its covers—and she very politely handed it back to me. However, Dr Spock said in his day that if we were ever to turn towards a kindlier society and a safer world, a revulsion against the physical punishment of children would be a good place to start. At that time, in my youth, it was thought somewhat eccentric for a dad to want to be at the birth of his child. It was also thought rather eccentric to eschew for ever smacking one's child on principle. I never recall smacking my children and, I am pleased to tell your Lordships, neither do they, but I had no basic principle about it then. Experience, particularly as a lawyer, has changed my view.
Dr Spock never mentioned child abuse. It was hidden away. Amendment No. 106 is not primarily concerned with the "smack in the supermarket", as it is so often trivialised; it is about what goes on behind locked doors within families, what children suffer

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privately and what they see happening to their brothers and sisters. We are concerned with a repeating cycle of violence. I recall when I had my first child I was engaged in a case where I defended a man on a manslaughter charge. I was a very young solicitor at the time. I persuaded the magistrates not to send him for trial at the Assizes. Ten or 15 years later I heard that he had killed his second child, and had admitted to having killed the first. Experiences like that change one's view of life.
I have prosecuted, and I have defended. Smacking can lead to battering, which can lead to death. Those of your Lordships who have experience in this field will know that we are presented with medical reports, social services records and school records. One can see the route to death that starts with the initial smack. Unfortunately, the Victoria Climbiée case is only one of a significant number. I have therefore come to the conclusion that assaulting children by way of punishment for past demeanours should be absolutely banned. My noble friend Lord Lester said that that is going to criminalise parents. I do not agree with his analysis. Assaulting an adult is a crime, as is assaulting another person's child. The ancient defence of "reasonable punishment" open to parents and those with parental responsibility decriminalises an act that would otherwise be a crime. There is no question of Amendment No. 106, or indeed my amendments, inventing a new crime for parents; they merely remove this ancient defence.
References have already been made to the United Nations Committee on the Rights of the Child. It has considered the report of the UK Government with regard to their compliance with the convention on children's rights on 4 October 2002. I add another quote to those that have been given.
"In light of its previous recommendation, the Committee deeply regrets that",
the United Kingdom,
"persists in retaining the defence of 'reasonable chastisement' and has taken no significant action towards prohibiting all corporal punishment of children in the family. The Committee is of the opinion that governmental proposals to limit rather than to remove the 'reasonable chastisement' defence do not comply with the principles and provisions of the Convention and the aforementioned recommendations, particularly since they constitute a serious violation of the dignity of the child".
It is astonishing that the Government have done nothing to respond to that report; that they introduce a Children Bill about systems and procedures and they introduced into England a Children's Commissioner with weaker powers than those for Scotland and Wales; and that they then leave it to the noble Lord, Lord Lester, to introduce an amendment on matters that trouble the United Nations committee. Even then they do not give leadership to their side, but talk about giving them a free vote.
It might be said that the voter will come to the conclusion that "beating children is what we do, and always have done"; that it is the common law of England, deeply embedded in our tradition and history. I was interested to find the earliest reference to this defence that I could without descending into
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reports in Norman French. I got back to The Country Justice, written in 1690 by Michael Dalton. It is interesting to note the company that the defence of "reasonable chastisement of children" keeps. I quote from his work:
"Also though Assaults and Batteries be for the most part contrary to the Peace of the Realm, and the Laws of the same, yet some [people] are allowed to have a natural, and some a civil Power (or Authority) over others; so that they may (in reasonable and moderate manner only) correct and chastise them for their Offences, without any imputation of breach of the Peace; yea, they may (by the Law) justifie the same; and so in such cases the beating and battery of the person of another, maketh no breach of the Peace; but the manner of the battery only doth make the breach of the Peace.
"And therefore the Parent (with moderation) may chastise his Child within age".
That is the first point.
"So may the Master his Servant or Apprentice, for their evil Service.
"So may the School-master his Scholars.
"So may a Gaoler (or his Servant by his command) his unruly Prisoners.
"So may any Man his Kinsman that is mad, &c. And none of these shall be in peril therefore to forfeit any Recognizance of the Peace.
"Note, that the Master may strike his Servant with his hand, fist, small staff or stick for correction; and though he do draw blood thereby, yet it seemeth no breach of the Peace, as appeareth by the Statute of",
Henry VIII".
"Also the School-Master, with a Rod, may chastise his Scholar which is careless and negligent in Learning, or that shall abuse his School-fellows, or for other the like occasions.
"Also it is lawful for the Parents, Kinsmen or other Friends of a Man that is mad or frantick (who being at liberty, attempteth … to hurt himself or others) to take and put him into an house, to bind or chain him, and to beat him with rods, and to do any other forcible act to reclaim him, or to keep him so as he shall do no hurt".
In all of these areas, save that of the parent and child, we have moved on as a society.
4 p.m.
My noble friend Lord Lester's amendment retains the defence of "reasonable punishment" for common assault. He abolishes it only for assault causing actual or grievous bodily harm or for cruelty. It is as though the master may still strike his servant with his hand or his fist but not with his staff or stick. My other objection to the noble Lord's amendment is that it leaves the burden on the prosecution still to disprove the suggestion that the defendant's act was in reasonable punishment of his child. It is for the prosecution to prove that the defence, once raised, has not been established beyond all reasonable doubt.
What is "actual bodily harm"? The current charging standards of the CPS for assault occasioning actual bodily harm, which is as far as my noble friend will go, involve injuries such as loss or breaking of a tooth, temporary loss of sensory functions including loss of consciousness, extensive or multiple bruising, displaced broken nose, minor fractures, minor cuts requiring stitches and psychiatric injury which is more than fear, distress or panic. That is the basis upon

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which charges are brought today by the CPS for assault occasioning actual bodily harm. On current standards, anything less than that would not be covered by the amendment tabled by the noble Lord, Lord Lester. It is unlikely that a magistrate or a jury today would find that injuries such as those that I have described were reasonable punishment of a child.
Although I wholly respect the noble Lord, Lord Lester, and his campaigning for human rights—far greater than mine—his amendment adds little to the criminal law. Two months ago a new code for prosecutors was published on the CPS website which said that the charging standards for common assault and assault occasioning actual bodily harm could be found in appendix A. There was no appendix A published, so we do not know what that said. Perhaps we may hear something about that today.
How does the prosecution prove the existence of injuries such as bruising, reddening or scratches—if that is the nature of the new guidelines? Some children bruise more easily than others, or may be hit in an area where bruising does not occur, but the pain is the same. How does the prosecution get behind the door to find out what has taken place to disprove the defence of reasonable punishment?
In any event, a magistrate or jury might reject the suggestion that such injuries were actual bodily harm. As a fairly experienced advocate in these matters, I would say that the aim of the defence advocate would be to persuade the court that the case was merely one of common assault and that the prosecution had failed to disprove the suggestion put forward by the defendant that his act was "reasonable punishment".
My amendments to those tabled by the noble Lord, Lord Lester, do two things. I ask noble Lords to consider their terms carefully. First, they abolish the defence of "reasonable punishment" for a past misdemeanour altogether. Secondly, they recognise that there may be circumstances when a person has to act to restrain a child from causing immediate or future harm to itself or to another. Those circumstances may arise even if there is no parent-child relationship. I have deliberately used the word "defendant" rather than "parent" in the amendment. The circumstances may include pulling a child back from traffic, or from a hot stove, or preventing it hitting another child and may require a slap to be administered to restrain the child from that activity.
But if restraint is to be the excuse for what would otherwise be an assault, then my amendment would make it necessary for the defendant to prove it—not for the prosecution to disprove; for him to show that it was more likely than not that his purpose was to restrain and not to punish. I ask your Lordships to think carefully about the wording of my amendment. I commend it as a far better and more balanced approach than one that still condones pain to a child as punishment.
My first task is to urge your Lordships to pass Amendment No. 106, which has been prepared by the most experienced lawyers in this field and has been supported, as the noble Baroness, Lady Finlay, has
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said, by many experienced organisations. If your Lordships, perhaps as the result of coercion, were unable to do that, I would ask noble Lords to support my approach to the amendment tabled by the noble Lord, Lord Lester, and to ensure that we end up with legislation that truly advances the situation.
Lord LamingMy Lords, I support Amendment No. 106B and shall speak against Amendments Nos. 106, 106C, 106D and 106E. The whole House should feel indebted to the noble Lord, Lord Lester for finding a way of removing the defence of "reasonable chastisement" from our legislation, while supporting the thrust of legislation and policy in working constructively with parents, and keeping safeguards for children—as set out in the Children Act 1989.
I do not regard the amendment tabled by the noble Lord, Lord Lester, as a compromise. On the contrary, it has been deliberately framed with great care to achieve a specific objective. I support it not as a compromise, but because I believe it is right in the interests of working constructively with children and families in this country.
I am sure that we all agree that there is no place in our society for the defence of "reasonable chastisement". It is from an age gone by and should be removed from the statute book. I remind the House that the law recognises that children are different from adults and have specific needs. That is why we have had specific legislation that respects the needs and rights of children for hundreds of years.
So the issue is not about removing a defence that we all dislike. It is about which route to take and how best to continue working constructively with families, while safeguarding the rights of children. We would all hope that every parent in the country had the knowledge, understanding and skills to avoid the need for recourse to physical punishment—no matter how tired or harassed they might be. But the reality is that some parents will continue to need help both in developing that understanding and in developing better parenting skills.
I recognise the points made by noble Lords who have spoken in favour of Amendment No. 106, but I do not share their views, for four principal reasons. First, there is a real danger that Amendment No. 106 will bring a host of otherwise well meaning parents within the scope of being criminalised. We should recognise that the vast majority of parents in our society actually want the best for their children. If the state has a role, its primary role is to help them to achieve that objective.
Secondly, that amendment would work against the thrust of the Children Act 1989 and the Children Bill which is now before your Lordships' House. The main intent of that legislation is to accord paramount importance to the well-being of each child, by recognising that the well-being of each child is generally met by working constructively with the ' child's parents.
Thirdly, it may put at risk the willingness of parents to welcome into the home health visitors, social workers, a Sure Start worker, even a volunteer from

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such excellent schemes as HomeStart. Why, they may say, run the risk of putting yourself in possible danger by welcoming these people into the home?
Fourthly, there are those who claim that a ban on smacking may not increase the number of parents being prosecuted. They may well be right, but that misses the key issue, which is that the police will have to investigate any and every allegation of assault on a child, however trivial or even mischievous it may be. It is the process of investigation—gathering the evidence, doing interviews, getting statements, with everything being recorded and reports produced for the Director of Public Prosecutions—which will have a huge impact on many parents. It will be that process that will make them feel under considerable threat. Now many claims have been made—
Baroness Sharp of GuildfordMy Lords, does the noble Lord accept that the Director of Public Prosecutions said clearly in his evidence to the Joint Committee on Human Rights that prosecutions for adults for minor assaults were very rare, and that he was sure that prosecutions for minor assaults on children would be very rare indeed?
Lord LamingMy Lords, indeed I would accept that, for he was talking quite rightly about prosecutions. I am talking about the very substantial and demanding process that precedes any decision to prosecute.
Claims have been made already today about support from various organisations. Through my letterbox this last week came a statement, unsolicited by me, from the Association of Chief Police Officers. One small section of it says:
"National Crime Recording Standards, introduced recently by the Home Office, require the police to record any crimes reported to them. The police have a duty to investigate and where they are able to clear up crimes once reported, which would imply interviewing the suspect and then proposing either caution or prosecution".
We should not underestimate the impact that these investigations may have upon a family.
Last week I did something highly unusual, in that I wrote a letter for publication to a national newspaper. In it, I set out what I hoped were some of the chief points against a general ban on smacking. I am most grateful to the editor of the Independent on Sunday for publishing the letter in its entirety. It was the only letter on the subject, but it appeared under the headline "We need smacking ban". It just so happened that a "smacking ban" coincided with the editorial comment of that newspaper. I mention this not to express my frustration with the newspaper, which you may gather is keenly felt, but more because in that letter I quoted the late Lord Seebohm.
Many will remember Lord Seebohm's 1968 report on the future of the personal social services. Lord Seebohm spoke at length in the report about the need for the state to support the family unit, and for its services to be seen to support the family. He said:
"An effective family service must be concerned with the prevention of social distress. Morally, socially and economically this makes sense".
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I suggest that preventing social distress is not best achieved by the state threatening parents with possible prosecution at any turn.
4.15 p.m.

The Government have promised a wide range of measures that will be introduced to support families in our society. In my view, the choice before us is either to respect the responsibilities of parents; to seek to work with them constructively in partnership; to pursue policies and practices which are based on encouragement, help and support—or to go down a route which is based upon threat and coercion.
In my view, in Amendment No. 106B, the noble Lord, Lord Lester, has devised a way which can lead to a defence that we all abhor being removed from the statute, while at the same time ensuring that we continue to work constructively with parents and help them to feel secure in their parenting roles and responsibilities. If parents are helped to avoid the use of physical punishment they will then teach their children the need to avoid physical force. By that constructive means from generation to generation we will help to achieve a position that I am sure we all want: to avoid the use of unnecessary force and violence.
Of course, persistent abuse or physical hitting of children has a detrimental effect upon a child, which is why the Children Act 1989 places the well being of each child in paramount position. I believe that the choice before us this afternoon is simply between one of education, support and encouragement, as set out by the noble Lord, Lord Lester, or for the state to use its authority in ways which would be perceived by many parents as threatening and menacing.
Baroness Massey of DarwenMy Lords, it is a great honour to follow the words of the noble Lord, Lord Laming. I cannot support Amendments Nos. 106C to 106E but shall support Amendment No. 106B in the name of the noble Lord, Lord Lester.
I have thought a great deal about the issue of "reasonable chastisement". I have attended innumerable meetings where it has been discussed. I have long supported the Children are Unbeatable! Alliance, and I agree that hitting children is a lesson in bad behaviour and in itself wrong. I am an NSPCC ambassador, and co-chair of the All-Party Group on Children. I therefore talk to many people about children's rights and parental responsibilities. It is a great privilege to be associated with these organisations and with Members of your Lordships' House who consistently support the welfare of children. I find myself somewhat surprised and uncomfortable about being on the opposite side to a number of respected colleagues.
I do have great respect and admiration for the commitment and dedication of the movers of Amendment No. 106, and for the principles behind it. However, I cannot support it. While supporting the amendment of the noble Lord, Lord Lester, I do not think that we yet have the wording of anything quite right, and I hope we can move toward that.

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If there is a risk of a parent being prosecuted for gently tapping a child in reprimand, then I cannot go along with that. The idea of a parent and children being in court for this is painful. The idea of being labelled a bad parent for this is painful. The language we are using is emotive, and I regret that. "Battery" can mean a slight tap, not a beating. When I see a headline on the letters page of today's Guardian, saying "A vote against violence", I get very offended.
I am against violence in any form, most of all to children. But violence is not merely physical; there are many ways of abusing children—some were mentioned by the noble Lord, Lord Lester—including verbal means. The other day, I was sitting on a train near a woman with a small child—a four year-old— and, as he continued to tap the window, she threatened to sell him for doing so. I consider that to be violence, and I am against violence of any kind.
I believe that when we have finished with this Bill, whatever its outcome, we need to look seriously at how we as a society educate and support parents and prospective parents. I agree with the noble Lord, Lord Laming, about that. I am less worried about the concept of a nanny state than about securing the welfare of children.
I have listened to, and read about, the experiences of those who come under international anti-smacking laws, and I have concluded that they cannot be applied in this country. The wording of the Swedish law against smacking is absolutely brilliant. It speaks of the entitlement of children to care, security and respect, but it is found in the parental code. We have no such code. Would that we had; would that we had many things that would increase the protection of children. This Bill should tighten up on that.
Therefore, regretfully I cannot support Amendment No. 106 or the amendments to Amendment No. 106B, but I do support that of the noble Lord, Lord Lester of Herne Hill. I hope that we shall eventually come up with legislation which is totally satisfactory all round and which will benefit both children and their parents.
Lord BlackwellMy Lords, I am conscious that the House will not want a long debate on these amendments, but I think it is important that a voice is raised to oppose all the amendments, as I do.
We have heard some noble and distinguished arguments on the legal distinctions between the various amendments. However, the simple view that I take is that we, in Parliament, cannot pass a law that we do not expect to be enforced. At present, as I understand it, injury to a child, as indeed to anyone else, is against the law. The law is very clear in that respect.
My reading of many of the amendments is that they attempt to cover a grey area between no smacking at all and the current position in law but in a way that will be almost impossible for the courts to interpret. The consequence of that will be the perception, at least, that Parliament intends that any smacking covered by the amendments should be investigated by the police. Parents will be completely uncertain about what is
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intended and many will suffer police investigations as a consequence. I do not think that it is reasonable to pass a law and to say, "We didn't intend this to be taken seriously by the Director of Public Prosecutions. He will exercise judgment and discretion". If we pass a law to ban the use of corporal punishment or reasonable chastisement, we must expect the police to fulfil their obligation to enforce that law.
That takes us back to the question: what is our intention? Clearly, some in this House genuinely believe that any use of smacking to chastise a child is wrong and morally obnoxious and that it should be prohibited by the full force of the law. Equally, I have to say to the House that there are many, not only in this House but in the country at large, who think that it is a matter for individual parents to decide. So long as they are within a loving family environment, are using their best methods to bring up and control their children and are showing them the boundaries of what is or is not acceptable behaviour, as parents they are entitled to make that judgment according to their interpretation of a loving and caring upbringing.
We are not talking about situations in which children are damaged physically or mentally—that is already classified as an assault and is covered by the law. We are talking about the grey area where actions may be interpreted as right or wrong. Those in this House who hold a different view are trying to impose that view through the full force of the law. However, if this House imposed that standard on parents at large and used the full force of the law to do so, that would be a great intrusion into personal and family liberty and it is not an action that we should embark on lightly.
Baroness Richardson of CalowMy Lords, I have been sitting here trying to think what a parent will do when a child runs into the road for the sixth time. What sanctions are left once the "reasonable chastisement" of smacking has gone? I am not being facetious; I think that positive parenting skills need to be developed within our families.
I do not know whether any of your Lordships have seen the programmes on television which show parents how to deal with troublesome children. The methods used do not involve any physical punishment whatever and they are usually very successful in producing good relationships between parents and their children. I believe we all agree that the right discipline is self-discipline. The first self-discipline to be found within a family should be that of the parent, who is able to respond to the needs of the child and to administer a punishment that reflects the misdemeanour of the child. Often a physical smack cannot achieve that. Whatever can a child make of being smacked for being in danger? The two things cannot be held together.
I support Amendment No. 106. We are not in the same position in the country that we were in before this debate started. It was known that this debate was to take place. If, at the end of it, we leave things as they are or pass a slight amendment to the law, we shall be giving a firm signal to parents that it is all right to carry on as they have been doing and that the positive

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parenting skills that the amendment would secure, or perhaps at least encourage, would be in danger of not being taken up.
I beg noble Lords to pass the amendment in order to free society from the taint of physical abuse within families. We stopped thinking that it was all right for wives or partners to be battered and now we must take that a stage further and say that physical punishment has no place within a loving family and that there are other ways of ensuring that self-discipline grows within a child.
Baroness Howells of St DavidsMy Lords, I shall be extremely brief but I want to refer to a few words that have been used in the House today: "sufficient provision" and, as referred to by the noble Lord, Lord Thomas, "bruising". I remind your Lordships that we live in a multiracial society. I do not think that I need a photograph to show noble Lords that a mere tap on a white child creates a bruise, but it takes a great deal of that type of smacking for the bruises to show on a black child. I do not think that this is the first time that we have had to remove the ability to smack children from any one group. So far as I understand, teachers and policemen are no longer allowed to smack children.
I believe that the amendment before us today dodges the real issue. Smacking takes place when a parent loses control of a child. I believe that we should concentrate on helping parents to gain control of their children in ways other than smacking. I was brought up in the days when smacking was allowed but I am pleased to tell your Lordships that I have never been smacked or hit by any man or woman. However, I know of young people who, to this day, report having been smacked as a form of control. That has lived with them in a bruising way but it is a way that we cannot see.
I speak as someone who has lived, since birth, in a multiracial society. I know that one complaint from young people is that one has only to tap a white person and it shows, but a black person has to be given quite a whack before it shows. Let us not hang around looking at these amendments and let us realise that smacking must go and go now.
4.30 p.m.
The Earl of OnslowMy Lords, I will be incredibly quick. I was taken by what the noble Baroness, Lady Finlay of Llandaff, said. She said that 3 million or 4 million children are hit every week. I ask myself what effect this legislation will have on that number. Will four million people suddenly be stopped or will they go on? I am only going to ask questions, because I do not know the answers.
Something that the noble Lord, Lord Lester, said influenced me considerably. It concerned the case of the man who thrashed his daughter or step-daughter beyond acceptable limits and got off on reasonable chastisement grounds. That seems to me totally wrong. However, I still do not think that it should be
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made completely illegal. My instinct, for what it is worth, is to vote for the noble Lord, Lord Lester. I do not always agree with the noble Lord, Lord Lester, but I will make on this occasion a very willing breach of my own principles.
A total ban is going too far. The noble Lord, Lord Lester, is trying to tighten things up and make "reasonable" really reasonable as opposed to old-fashioned reasonable. That makes sense. I will still listen, but I just wanted to put a few doubts into everybody's mind to help the conversation along.
Baroness Howe of IdlicoteMy Lords, as other noble Lords have said, everyone here is united in an endeavour to achieve the same thing: to ensure that our children are fully protected and respected as individual human beings in our law. Where perhaps one or two of us differ is in believing that Amendment No. 106 is the way to achieve that purpose. Most noble Lords bring to this debate experience as parents and carers and many professional involvements with children and families. In my own case, that involvement includes a fair amount of work with voluntary organisations and school governors, as well as acting as a member of the ILEA and as chairman of an inner London juvenile court for 20 years or more.
Although I have the greatest admiration and respect for the views and experience of the noble Baroness, Lady Finlay of Llandaff, and other noble Lords supporting this amendment, I am sadly not able to join them in the Lobby today. This is because I believe that most parents today are loving and caring. Even though they may be fearful for or exasperated by their child's behaviour on occasion, they are not and should not be labelled as child abusers—as I believe there is a danger that they may be. The proposed change in the law, whereby the rare smack at the far end of a parent's discipline could in some people's view be subject to legal action, is not only unnecessary but likely to undermine, as the noble Lord, Lord Laming, has said, the undervalued but vitally important and responsible role of parents in their children's upbringing.
Despite what has been said today, I believe that the amendment, if accepted, could well result in unnecessary or even malicious charges being brought. Perhaps even more important than that is that the amendment would hardly, if at all, influence the behaviour of those whose ill-treatment of children is its primary target—those who are indeed violent and abusive to children. The parents or carers of the children who are really abused physically and mentally and whom I saw in juvenile courts and elsewhere came mainly, though not exclusively, from backgrounds where this kind of behaviour, which often included domestic violence, had been practised over a number of generations. Sir Keith Joseph's cycle of deprivation—once derided but now fully accepted as social theory—is particularly relevant here.
I remain convinced that the only effective way to tackle this persistent problem—it is almost a gene—is at its roots. As others have said this should be done by education and positive help—working closely with such families right from day one. That is why, for example, I particularly applaud the Government's

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Sure Start initiative. Considerable public resources have recently been devoted to this and similar projects. It is a brave move politically, as positive measurable outcomes reflected at the ballot box are unlikely to emerge within the lifetime of several Parliaments.
Of course we need effective laws to ensure conviction and punishment for violent offences against children and laws that are at least as effective as those dealing with violence against adults. However, there are relatively few cases where a conviction should have been but was not achieved because of a judge's interpretation of reasonable chastisement, and my preference would be for tightening the judges' guidelines for dealing with such cases. The more specific definition of offences given in the amendment of the noble Lord, Lord Lester, which was so clearly and admirably explained by someone who has spent most of his life working for human rights, is the way to achieve that aim and I shall support it.
Lord Phillips of SudburyMy Lords, after much careful thought I cannot support Amendment No. 106, despite the forceful and eloquent speeches that we have heard from those supporting it and the fact that I have complete respect for their motives and share their passionate concern.
To create a serious criminal offence, as this measure is intended to do, which makes citizens guilty without any proof of malign intent or of unreasonableness, or harm, is entirely contrary to our cherished traditions.
The proponents of the amendment reassure us that the offence will only be prosecuted with discretion. There should be, they say, wise government guidance on when to prosecute. Even if there is, that can never take away the right of an individual prosecutor or a member of the public to bring proceedings where reasonable people might not. Opinions in this area are notoriously diverse, as this debate shows. Given the seriousness of the offence, which will bar those convicted of it from any job having anything to do with children for example, and carry an imprisonment term of up to 10 years, that seems to me to be seriously inadequate protection.
The offence is absolute and denies magistrates the opportunity to form their own view on whether the seriousness of the offence warrants prosecution. They will be bound to convict unless there has been no physical discipline of any kind of the child concerned.
The effect of the offence being absolute is that the crucial and difficult judgment as to whether the particular facts warrant a conviction under the new law will effectively be decided not in open court before impartial judges, who have to hear both sides, but by the Crown Prosecution Service behind closed doors acting solely on information from the police. That seems to me to be so far removed from equal and proper justice that I cannot support it.
The new law will also bear down particularly hard on single mothers, particularly from parts of our society and indeed from minority communities with a more physical tradition than in some parts of the middle classes.
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To the extent that the law is observed, it will often be at the expense of children being more abused psychologically, as others have said, by being shouted at, sworn at, frightened. demeaned and rejected. Where is the human dignity in that?
I consulted the 40 or so decent, experienced secretaries in my office on the matter. At first, they thought that I was joking. They were unanimously opposed to a blanket prohibition. My eldest daughter, who is an experienced clinical psychologist, wrote to me saying:
"Physical expression of all emotions, and dealing with the aftermath, is part and parcel of the human repertoire and you just can't wish it away. Parents actually need to be able to be imperfect and to model remorse to their children. On the odd occasions that I smack Marco I always wish I hadn't, but then it gives an occasion to talk to him about why I did it and to say sorry to him. That may not be ideal but I think that he learns something about me and we both learn something about the relationship".
She seems to me to speak for a whole swathe of wonderful parents, whereas the movers of the amendment have spoken only of abusers and a swathe of parents who would not feel that they had acted wrongly in giving the occasional physical correction. As long as it is well signalled, reasonable and loving, a quick, even a hard smack is usually emotionally understood, effective and often brings closure to seriously wilful misbehaviour by a child in at least as good a way as any psychological correction, which does not always work soon enough.
I believe that before we abandon reasonable chastisement, we need to make a concerted attempt to enforce the existing law effectively because it has been notoriously grossly underused and under-resourced. It will need far more resources, as indeed will the new law, if it is to be effective. It may need guidance, and it will certainly need an energetic education campaign by all those marvellous charities and individuals rightly passionate about the levels of real child abuse.
I listened with rapt attention to the exceptional speech of my noble friend Lord Lester. He gave us much food for thought. However, at this juncture, all I can say is that for the reasons given, I believe that Amendment No. 106 should not pass.
4.45 p.m.
Baroness WhitakerMy Lords, I support Amendment No. 106 not because I want to see more parents prosecuted: this new clause does not criminalise assaults on children any more or less than the law on assault criminalises assault between adults. I support it because in the end it asserts the principle of giving children equal protection with adults against assault. That seems to me to be a principle of cardinal importance, and one which merits a free vote. I can do no better than to quote the Joint Committee on Human Rights, which states that,
"in the context of the law on assault, … children should have the same right as adults to respect for their human dignity and physical integrity and to equal protection under the law".
I think it should have a free vote because, while I feel committed to the principle, I recognise that others have strong personal feelings against it. My commitment

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stems from the question: whose responsibility is it when children are bruised by the strap, or when babies under one year are regularly hit to encourage them to stop crying? I do not think that it is the parents' responsibility alone. I think it is ours, as legislators, to set a framework of what is acceptable, within which parents exercise discipline over their children, including physical force to restrain, but not to punish.
That is why, with the greatest respect, I do not find that Amendment No. 106B, tabled by the noble Lord, Lord Lester, works at all. Indeed, his own noble friend Lord Thomas of Gresford has felt it necessary to propose and eloquently to advocate amendments to it. It certainly would contravene the recommendation of the United Nations Committee on the Rights of the Child to the UK as well as last week's recommendation from the Council of Europe's Parliamentary Assembly that member states which legalise assault on children are in breach of the Convention on Human Rights.
This amendment seems to mean, as I think the noble Lord, Lord Thomas, said, that if a parent commits on their child an assault which causes actual bodily harm or grievous bodily harm or is guilty of cruelty towards their child, then he or she will not be allowed to claim any more that it was reasonable punishment. But what jury or magistrate would ever think, under the law as it stands now, that cruelty or this kind of serious injury could ever be reasonable punishment? Is this amendment really a compromise at all? Only, I suggest, if the amendments of the noble Lord, Lord Thomas, are accepted.
Actually, the amendment of the noble Lord, Lord Lester, is strangely familiar. It is very close to a Department of Health proposal in a consultative document in 2000. But in that same document, the Government published the results of a poll in which over 95 per cent of the public rejected punishment of children which resulted in bruising. People do not actually want parents to be more free to assault their own children.
What we are after, in Amendment No. 106, is moving a norm on: affirming publicly the value that violence is not an acceptable way to punish children. Not that punishment is wrong; not that discipline is wrong—far from it. It is the violence that needs to be demoted out of the concept of punishment or discipline. Take the light tap in the supermarket beloved of Ministers. Never mind that I have seen slaps which have knocked a child over in the supermarket. No matter how light, that tap is the pale end of a spectrum whose intense end is brutality—brutality which results in regular, condoned punishment beatings.
Let us consider for a moment stealing. All of us who are capable of distinguishing right from wrong become aware that stealing is considered wrong. Theft is a crime. But plenty of stealing goes on that is not serious enough to end up in court. People borrow books from me seemingly with no intention of giving them back. I have the impression that people have sometimes borrowed money in the same way. But we know stealing is wrong and that constrains behaviour. That is what would happen if the defence of reasonable chastisement, which condones assault, is dropped. Cumulatively, accelerated by support
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for parents by the Government, and assisted by the obvious and explicit willingness on the part of the police and the social services to interpret the change constructively, our ideas of what is right and wrong would adapt and children would have equality of protection because of it.
It is our choice whether or not to follow those countries, increasing in number all the time, which have reduced brutality to children, and, it so happens, I think consequently, by children, and to consolidate this Government's achievements in dealing with domestic violence—no problem about intruding into the family there. If we fail to grant power to the individual conscience in this matter, we shall have held back a force for positive change.
There is much good sense in this Bill and sensible adaptations have been made by my noble friend. But in this issue, clarity has not been welcomed by the Government; human rights have not been heard; compliance with the Committee on the Rights of the Child has been breached; and a common sense view of the way the law works has been abandoned. I regret very much the Government's timidity in not standing up for the right of children to equal protection, to have lost their nerve over a change which will not result in a wave of prosecutions, any more than the Human Rights Act or any other rights measure has, but which will put a decent norm on the statute book, that our children, no less than adults, can no longer be beaten by their parents with impunity. I urge your Lordships to vote according to your consciences.
Baroness Kennedy of The ShawsMy Lords, —
Lord Stoddart of SwindonMy Lords,—
A noble LordLady Kenned!
Baroness Kennedy of The ShawsMy Lords, I hope it is not going to break into violence behind me.
This debate is about trying to shift a culture. That is why it is so important. Of course, all of us in this House share the same concerns about child abuse, but we also hear some polarisation in this debate. If you say to the 20 secretaries in your office, "Do you think smacking children should be criminalised, with you taken to court and it carrying a sentence of 10 years?" of course they are going to be appalled and horrified. Each and every one of them will have been a child and will remember a smack that did not have long-term effects on them. The idea of criminalising that would horrify them. Some of them will be parents who know that they, too, have fallen from grace, as many of us have.
The point of these charities coming together under this campaign is to say to us parents—imperfect as we may be, trying to be decent parents, probably pretty good at it—"You need to come in behind us in creating a message to those who feel beating their children is quite legitimate". They feel they can do that with impunity because there is a cultural sense that smacking is OK. It is read as a licence to those who take it to extremes. What we in this debate are saying

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to the wider community is that of course there are times when one is pushed as a parent to do something that one regrets afterwards. But we must come together to create values and standards that send out messages to those who visit terrible abuse on children.
We have heard from many lawyers, and I am one of those who deal with court cases involving abuse of children. I promise you that, when you see them, you have absolutely no doubt as to how it starts and how people feel that hitting young children is a quite acceptable aspect of rearing. That is the message which is received by parents, because of the culture we currently live in. This amendment seeks to shift the culture. That is why we should come in behind it, knowing that it may be imperfect; knowing that occasionally the police may make a wrong judgement and, hopefully, good sense will prevail at the CPS. But the reason for doing it is to create a cultural shift which will stop the level of abuse that currently takes place. I urge you to support this amendment because we need that message. Law is about transmitting messages about the values we believe in to the community at large, even if. on occasions, we fall from grace. I urge your Lordships to accept this amendment for those reasons.
Lord Lester of Herne HillMy Lords, I thank the noble Baroness, Lady Kennedy of The Shaws, for giving way. Would she not agree with me that, first, we should not pass laws we think are imperfect? Secondly, should we not criminalise conduct unless we think it is sufficiently serious to be made criminal?
Baroness Kennedy of The ShawsMy Lords, the answer to that is that we should all recognise that hitting children is unacceptable. The examples that the noble Lord, Lord Lester, gave in this House—I am sure that each and every one of us brings our own baggage, and the noble Lord probably does, too—are never good enough.
There are always other ways of dealing with children who make you cross, who do unkind things to another child, or even those who seek to run into the road. We are the imperfect ones who fail to live up to the standards we would like to see set. We have to recognise that our imperfections are not good enough. When we ask for constraints in law, we are coming together to do this in the interests of children because we know that much worse is done in the name of the licence given for chastisement or lawful punishment. That is why we have to come together and why we must not make concessions, even in the instances we understand. We know we have to work for a better rule in order to prevent serious abuse.
Lord DenhamMy Lords, before the noble Baroness sits down, could she explain what other option for the child running into the road there is, if it does it too often, without giving it a smack?
Baroness Kennedy of The ShawsMy Lords, you grab the child. You pull the child back. You say to the child, "You don't do that". There are many ways, I can
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assure you. It is nonsense to put it up as an example, because if you did smack your child in those circumstances, do you seriously think a police officer is going to take you to court?
Noble LordsYes.
Baroness Kennedy of The ShawsMy Lords, no. To use that as an example, to put fear into parents, is really, I regret to say, failing to deal with the much greater abuse that this amendment is seeking to deal with. I do not accept that police officers are going to be running around arresting parents who grab a child and smack its bottom because it was running into the road for the sixth time. Good sense does prevail in policing.
Lord Stoddart of SwindonMy Lords,—
Lord HoosonMy Lords,—
Baroness AndrewsMy Lords, I believe the noble Lord, Lord Hooson, was raising a point before the noble Baroness sat down. Is that not right?
Noble LordsNo.
Lord Stoddart of SwindonMy Lords, I have been listening to this debate, and I find it of great concern that suddenly, on Report of a Children Bill, we have an amendment with enormous implications for millions of people. Yet there has been no public consultation of the people who count—the parents. We suddenly find Amendment No. 106, and the amendments to it, on the Marshalled List on Report of a government Bill in which the Government themselves have not included anything of the sort.
Baroness WalmsleyMy Lords, will the noble Lord accept that Amendment No. 106 is laid in exactly the same wording as it was in Committee? The House debated it, but it was not moved at that stage. The new element on Report is the amendment of the noble Lord, Lord Lester, which is why my noble friend Lady Finlay, in moving Amendment No. 106, was obliged to give a slightly longer speech than might normally be required.
5 p.m.
Lord Stoddart of SwindonMy Lords, I am well aware of all that. But for legislation of this importance there should have been—and still should be—wide public consultation because of its implications.
Of course, one has to be careful when speaking on amendments of this sort, otherwise one will be accused of being brutal to children. Let me say that, as a child, I was certainly slapped and caned by the teachers at my school. From some of the arguments that have been put, I should now be a brutal person myself, believing that the only way to settle disputes is by physical force. As a matter of fact, I have not engaged in physical

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force in my life at all, and that goes for most other people as well. So that argument does not hold water at all.
Secondly, I have brought up three children and I have not smacked them. I have not felt it necessary to do so. But because I do not think that it is necessary to do so, it does not mean that other parents are able to control their children in that same way without smacking them. That is an imposition upon other people that ought not to happen.
Like many other noble Lords I read Dr Spock and applied his recommendations. But I found that I had been wasting my time—because at the end of his life Dr Spock recanted. All that we heard from Dr Spock was a load of nonsense according to him. We therefore have to be very careful of the experts. We have heard a lot about the experts today, but that is one expert who, after he had done all the damage in the world, recanted and said, "I was wrong all the way along".
Baroness Kennedy of The ShawsMy Lords, wrong on what?
Lord Stoddart of SwindonMy Lords, on his recommendations for bringing up children, which included not smacking them.
Baroness Kennedy of The ShawsMy Lords—
Lord Stoddart of SwindonMy Lords, the implications are very wide indeed.
Let us consider the position of a child who has been smacked in the garden and a neighbour next door reports it to the police. The police come along and ask little Johnny whether he has been smacked. He says that he has, so the police go away and prepare a case for the Director of Public Prosecutions and he decides to bring an action. What happens then? That child will be taken into court and he will have to give evidence against his father or mother.
Is that really what we want? Is that going to help families? Is that going to help to unify families? Is that going to help discipline in families? And suppose the punishment for that smack is for the child to be taken away. Social services do take children away from their parents and are very often wrong in doing so, as we have seen from some very famous cases.
What then happens to the child? Is he put into care? Does he go to foster parents who may be worse than his own parents? Or will he be put into a local authority home where children may be abused by their carers, sometimes in very nasty ways? These are some of the matters that need to be considered before we pass amendments of this sort.
I fear that we are in the grip of a group of people who see things only from their own point of view and do not understand the enormous pressures that parents, particularly those from working-class homes, are under for all sorts of reasons: the break-up of the family; shortage of money; living in poor circumstances; and,
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indeed, not having the educational background to deal with children in a manner with which that group happens to agree.
These are dangerous amendments. Before we embark upon them we need a lot more research, a lot more consultation and also a lot more toleration.
Lord HoosonMy Lords, I did not want to follow immediately upon the previous speaker, but I was interested in his autobiographical note, which explains a good deal about him.
Lord Stoddart of SwindonMy Lords, perhaps the noble Lord can explain that?
Lord HoosonMy Lords, I wish to support the amendment in the name of the noble Baroness, Lady Finlay, for this reason: with this Children Bill we need to send a clear and unambiguous message to everybody in our country, particularly parents. I wish to make it clear that most of the people in the country do not need the message at all but some of them certainly do.
These days one of the main environmental influences on children is the television set. They are very often fed from it a diet of unacceptable social behaviour, with violence and angry reactions being normal and acceptable.
Years ago, when I was a young barrister, I remember a great argument between a very distinguished Oxford don—a professor of jurisprudence—and one of the Law Lords. The don argued that the laws of a country are a reflection of its morality. The Law Lord did not agree and said that the morality of a country is created by its laws. I came to the conclusion that they were both right—it depended on the circumstances.
All the organisations concerned with the welfare of children support the amendment. What does that tell us about their understanding of the problems of children? In whatever form this Bill goes through, it will be interpreted by judges and magistrates. Those who are prosecuting will have to bear it in mind before they decide whether or not to prosecute. The police will have to interpret it. In my experience of the Bar—which goes back over many years—all these procedures led in the end to a very civilised approach in our country.
Let us look at one sentence in the amendment:
"Battery of a child cannot be justified in any proceedings on the grounds that it constituted lawful punishment".
We can argue in an interpretation clause exactly what "battery" means in this context, so that it can be spelt out clearly. It has been interpreted by a judge or magistrate and has been considered by other people beforehand.
It is important that a message goes out from Parliament as it has already gone out in Germany and Sweden, which have adopted the whole thing with no problems arising from parents being prosecuted or anything like that. These are bogey ideas raised by people who look for minutiae to undermine the Bill. There should be an unambiguous message that we

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need civilised behaviour from this country and particularly from those parents who do not indulge in it.
Lord AcknerMy Lords, some of your Lordships may remember Sir Milner Holland, a well-known QC and one-time chairman of the Bar. I remember him addressing an audience on this subject many years ago. He said that he had never raised his hands against his children except in self-defence.
I cannot claim to be as perfect as that, but on the rare occasions when I did, I certainly do not concede that I had lost control of my children, as the noble Baroness suggested was the case.
I shall keep your Lordships very few minutes. My first point is that there is a heavy onus on those who wish to change the law to establish that the law does not provide adequate protection. There is no proper submission before your Lordships that the defence that, "I only use moderate and reasonable force in the correction of my child" does not provide an adequate protection for the child. It is hoped that by altering the law, in a manner which has been strongly criticised, you may achieve your desire to stop abuse—that you stop abuse by invoking the law that deals with abuse.
Secondly, a law against smacking would lead to an unprecedented level of intrusion into family life in England and Wales. It would probably result in disputes between neighbour against neighbour, with parent and child disputes being referred. A disharmony would grow up which we would all very much regret.
I submit to your Lordships that one has only to consider the scene in a supermarket: an overburdened wife, trying to cope with three children at a very busy period in the day, smacks her child for having disobeyed her for the fifth time in seizing material from the supermarket. She will be turned upon by people in the supermarket, who accuse her of ill treating her children. There will be complaints to the supervisor; the police will be brought in and charges may well have to be levelled, which are really quite unsustainable.
My next point, which is the same as that made by my noble friend Lord Laming, is that a law against smacking would divert already overstretched child protection resources away from the children who most need them. There is a limited amount of available police time and even social welfare time to cope with children's problems. To add this one to those that need intervention will be the straw that breaks the camel's back.
Finally, I think that some of us are overlooking the fact that parents have a unique relationship with their children. In order to fulfil their parental responsibilities, they have powers which they do not possess in relation to anyone else. To say that the child should have the same rights in this respect as if he were an adult and that parents should have the same obligations as if they were dealing with adults is to overlook the nature of the parent-child relationship, its responsibilities and its sensitivities.
Lord GrocottMy Lords, we are now nearly two hours into this debate and, as your Lordships will
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know from the Order Paper, there is quite a bit of business to come afterwards. May I suggest, with the usual diffidence, and to test the mood of the House, that we have another two or three contributions before we begin the winding-up speeches? The Divisions afterwards will take some time, of course. I hope that that meets with the general agreement of the House.
5.15 p.m.
Baroness UddinMy Lords—
Lord PestonMy Lords, I want to ask a point of order and not make a speech yet. Two or three contributions might not include at least one of us who wants to speak, and who has been sitting here patiently. Since a great many people who spoke earlier spoke at great length, I take very strong exception to the notion that there should be only two or three more speakers, especially if one of the three is not me. Therefore, I hope that my noble friend the Chief Whip does not push this point too strongly. I can see at least six people ready to speak, all of whom I am waiting to give way to in order that, one day, I might speak. I agree that it will take time. I really would like to get home to see my dear wife—part of our loving family—one day. But I really do not think that this is the kind of debate that should be curtailed in any way whatever. I also ask my noble friend not to count my point of order as my speech.
Lord GrocottMy Lords, I am not equipped to deal with points of order, I am afraid. Let us aim at a rough time of around half past five, shall we? It is amazing what contributions can be made in three or four minutes.
Baroness UddinMy Lords, I support Amendment No. 106. I do so with great respect for the noble Lord, Lord Lester, for whom I have great admiration. I think that an outright ban is what we must look for in 2004.
As a mother of five children, I accept the ambivalence that we have all faced from time to time. But I also speak as one who has worked as a professional social worker and a child protection officer for many years. We are talking about 3 million children, although I am not quite sure of the numbers—I hesitate to say anything about the numbers. Anyone who has witnessed the pain of children would not argue for anything less than the fact that violence is totally unacceptable.
A number of points have been made very eloquently, and while I do not wish to go into them all now, I should like to pick up a couple. Reference was made to resources. I understand from speaking to people who operated a similar system in Sweden and Germany that there were issues of resources but it was a question of redirection, not additional resources. In any case, if resources are required to ensure that children do not suffer violence, we must be committed to that. It is their right.
Taking attention away from valuable resources and talking about the children, if we had not sanctioned the kind of behaviour that we are talking about,

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Victoria Climbiée would not be dead today. It is not acceptable for us to argue that it is a matter of resources.
I was not in the House when the Children Act 1989 was debated. I ask noble Lords on all sides of the House to look at the debates that must have taken place during the passage of that Act. I can quote so many things that have been said, and I will bet my bottom dollar that they are exactly the kinds of things that were said then. How could we possibly have imagined, 10 or 20 years ago, when we were talking about domestic violence, that we would be talking about the chastisement of children in exactly the same way today? There are many similarities.
I accept that the problem is one of attitude change, but it is also about condoning violence. What the noble Lord, Lord Hooson, said is very important. We must send a totally clear and unambiguous message that any form of violence is unacceptable. Unless we do that, we will fail the most vulnerable in our society, by which we will be judged for years to come.
Lord CondonMy Lords, I suspect that, like me, many noble Lords are torn between supporting Amendment No. 106 or Amendment No. 106B. Both approaches have enormous merit and have been argued for so eloquently and convincingly. However, I am absolutely certain that the status quo should not prevail and that your Lordships have an historic opportunity to establish a pragmatic, symbolic and new legal approach to protecting children.
Those noble Lords who are moving towards supporting Amendment No. 106 should not be deterred by a fear of unleashing hundreds of thousands of police inquiries into trivial allegations and pitting child against parent in frivolous circumstances. The Association of Chief Police Officers and the Association of Directors of Social Services have acknowledged that they can envisage a sensible and pragmatic regime with clear guidelines being established. Noble Lords will clearly respond to their own consciences on this issue, but they should not be deterred from supporting Amendment No. 106 for fear of hundreds of thousands of unnecessary, frivolous investigations.
Lord PestonMy Lords, I address your Lordships as an ordinary person with no expertise, but I must reveal a strong bias in that I was never smacked as child—it was impossible for my mother or father even to have thought that that was a proper way to bring up children—nor were my sister or my brother. It was inconceivable that my wife and I would have smacked or hit our own children. It was simply not regarded as proper behaviour. That does not mean that there are not any problems. Ten days ago, I was looking after my seven year-old grandson and trying to watch what I thought was a very important football match. He talked incessantly through it and I wanted to strangle him, but it would never have occurred to me to do anything like that at all. What I had to do was to listen to a football match while he talked non stop.
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That is riot an impossible state of affairs. To noble Lords who have asked what one does when one has a problem with children, my answer is that sometimes one just has a problem with children. That is the way the world is. However, hitting them and using violence is morally wrong. It is all very well for noble Lords, including one or two of my noble friends, to say that they are not in favour of violence when they are supporting amendments that legitimise violence. There is no other interpretation. I sit here and listen to very clever lawyers, but what they end up saying is that, in these cases, hitting children is acceptable. I find that impossible to believe. I would not behave in that way and I think that a large number of noble Lords would not behave in that way, including some who have not spoken.
We have heard the supermarket example. The noble and learned Lord, Lord Ackner, mentioned it last, but he was not the originator of it. One of the puzzles about the example of the supermarket—where my wife first of all has to restrain me—is that if I see a mother hitting a child and tell her to stop, I receive a stream of abuse. However, if, after the stream of abuse, she hits me, I can call the police, sue her and so on. That takes me to a point where I disagree fundamentally with the noble and learned Lord, Lord Ackner. He said that a child should not have the same rights as the adult; my view is that the child should have more rights than the adult, because the child is the defenceless person. That lies at the heart of our debate.
We have heard some odd cases being invented. I turn again to the supermarket example. When my little hand leans towards the double cream, my wife grabs me and says, "No! It's not good for you". However, the notion that the law should then be invoked for that violent attack on me to prevent me having the cream that is not good for me is ridiculous. But that is of the level of the cases that have been cited by noble Lords who support either the status quo or the other amendments, particularly that of the noble Lord, Lord Lester.
We have even heard some new concepts. The noble Lord, Lord Phillips, has invented the concept of the "loving smack". That is another definition of sadism. That is exactly what a "loving smack" is. It is all very well—
Lord DenhamMy Lords, is the noble Lord watching the clock? We are trying to fit as many noble Lords in as possible before the curtain comes down.
Lord PestonMy Lords, as I pointed out to my noble friend the Chief Whip, those who have behaved in the proper way in your Lordships' House, giving way to speech after speech, should, especially if they are supporting the main amendment, at least be allowed to make the points that they are trying to make. I regarded what my noble friend the Chief Whip said not as being mandatory, but as "guidance", which is a term that the Government often use. I am influenced by the guidance, but I still intend to make the points that I want to make.

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My main point, on which noble Lords should reflect, is that this is not a utilitarian case. It is not a matter of balancing rights and wrongs or of saying, "These are the plus consequences; these are the minuses. Let's now evaluate them and find out what the net position is". This is a matter on which one should take a moral or an ethical stand. That is the main reason why I am dismayed by the position of the Government and my noble friends on the From Bench. On a matter of this kind, where a moral principle is involved—a principle in which many of us have believed for pretty well all of our adult lives and in which quite a number of members of the Government must believe—not to allow a free vote to encourage Members to vote for what they truly believe is shameful. I have been a member of this party for probably longer than any member of the Front Bench. I did not think that we would reach this position on a matter of this kind. Even if I am expelled from the group, I intend to vote for Amendment No. 106 if it is moved. I say to the noble Lord, Lord Denham, that my main reason for having gone on a bit is that I would like to encourage as many of my noble friends as have the relevant ethical beliefs to vote for Amendment No. 106.
Baroness Howarth of BrecklandMy Lords, I speak with some diffidence this afternoon, mainly because I spent the weekend in extreme discomfort. It would be my natural inclination to stand with the alliance. I believe fervently that hitting children is wrong. If we had thought through the issue in more detail, we might well have come up with something that met our requirements in a better way. Neither Amendment No. 106 nor Amendment No. 106B will meet them in total. Therefore, I hope that a better answer will be found in the Commons.
I need to explain why I cannot stand with my colleagues and why I am so discomfited in spite of a whole weekend of deep thought about this issue. I am a social worker. I have many years of child protection experience. One matter that we need quickly to clarify is the difference between child abuse at its worst and families who inappropriately hit their children. Hitting children is wrong, but it happens in families.
The case of Victoria Climbiée is not a valid example. Her case was in a different league from that of the mum who slaps her child in the supermarket. We have to keep our minds absolutely clear about those issues.
I also fear that we are confusing the real issues about how children perceive life. I spent 15 years in Childline, listening to children's voices on the telephone. Children talk with huge distress about being hit. They talk about being knocked down, hit with sticks and thrown downstairs. Some of those cases should certainly be coming to court. I respect the alliance hugely for bringing this debate forward. With due respect to the noble Lord who said that there has not been a debate in this country, I have seen attitudes change as a result of the work of the alliance and I respect it for it.
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However, a law that makes families uneasy about their parenting is a difficult one. I would do most things to change the law on reasonable chastisement, which I see as being as ancient and removed from reality as many other noble Lords, but Amendment No. 106 will not do that. Therefore, I shall be supporting the amendment of the noble Lord, Lord Lester, although it does not answer the whole issue. What children also pointed out to me on the telephone was that however much they hated being hit, what they worried about most was getting their families into trouble. They did not want their families brought before the court, even for the most horrific abuse, and certainly not for cases of the kind we have been debating.
5.30 p.m.
Therefore, we should not make families feel that they are going to get themselves into such difficulty, but I would not like to lose the opportunity that the noble Lord, Lord Lester, is giving us. I hope that the majority of the House will carry through to remove that appalling piece of legislation from the statute book and that the Government will continue to find an even better way to prevent anything that is not common assault, which we should not allow for children. I hope that the majority of your Lordships will support the amendment of the noble Lord, Lord Lester, but in the fervent hope that even that can be bettered.
The Earl of ErrollMy Lords, I had a gang of 16year-old schoolgirls staying at the weekend for a party. I happened to ask, without any canvassing, what they thought about banning smacking. They universally thought that it was crazy to ban it and that Parliament should get real, in their words. The problem is that we punish a child for disobedience, not for behaviour: it is not the running across the road but the repeated disobedience in doing it. The only time that I have chastised my children above once each was for disobeying their mother. They then knew who ruled the roost in their house: their mother—very simple.
I think that is how many reasonable families work. The problem is that we need to make the punishment fit the child. The notion that we should remove smacking from the options will not suit some children. Some children do not respond to reason, long arguments or some form of humiliation; in fact, it may be more damaging and the short, sharp shock should be left there for some parents in reasonable cases.
Another thing that worries me about Amendment No. 106 is the meaning of the word "battery". I understood—and I have just checked with a noble and learned Lord—that battery includes the threat; assault is the actual physical action. So the threat that one is going to carry out the action is battery—I am not sure that that is what is meant in the amendment. If that point can be clarified I stand to be corrected.

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Guidelines can unfortunately be rewritten ad hoc, so I do not see them as the solution. If we want to rewrite some guidelines there is a perfectly good rule about reasonable chastisement: rewrite the guidelines on "reasonable" to fit the cases in a more human way.
Lord Thomas of GresfordMy Lords, will it assist the noble Earl to realise that assault is a threat; it does not have to involve touching, but battery involves contact?
The Earl of ErrollMy Lords, I thought that it was the other way round.
Earl HoweMy Lords, this has been a high quality debate. Perhaps I may begin by thanking all noble Lords who have spoken in a principled way to the amendments and by making it clear that the Conservative Party believes that it is appropriate to allow a free vote on the issue. What follows therefore represents my personal views.
The amendment tabled by the noble Baroness, Lady Finlay, and others was debated in Committee. I made it clear at that time that I could not accept it. Listening today to the speeches of the noble Lord, Lord Laming, and the noble Lord, Lord Phillips, has completely confirmed my stance. If we put the law of assault between parent and child on the same footing as the law of assault between adult and adult, which is what the noble Baroness, Lady Finlay, seeks to do, there will be only one result: we will render any parent who administers a smack to their child liable to criminal proceedings. That is not something for which I am prepared to vote under any circumstances.
The noble Baroness argued that cases of minor assault would never in practice be prosecuted. If that is so, the law should not be changed so as to enable that to happen. If we change the law but in the same breath say that we do not want some elements of it to be implemented, that only brings the law into disrepute.
The Minister emphasised in Committee—and I agreed with her—that if there is a lack of clarity over what the will of Parliament amounts to, it is not fair on the public authorities to be expected to implement it. From a practical point of view, even if there is no prosecution in cases of trivial assault, one can envisage a huge and wasteful diversion of resources in investigating such cases, leaving fewer police and social workers to investigate and pursue perpetrators of real and serious abuse. That worries me.
With great respect, I disagreed with the remarks of the noble Lord, Lord Condon. We should not underestimate the extent to which the amendment would encourage malicious complaints against parents by individuals with a particular agenda. Perhaps worse, it would run counter to the tenor of the Bill to create a climate in which loving parents felt intimidated in the way that they set about the responsibility of bringing up their children.
I turn to the amendment in the name of the noble Lord, Lord Lester. I was grateful for his helpful introduction and found myself in agreement with a great deal of what he said. My position is simple and I
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hope and believe that it accords with his position and that of the Government. I want to make sure that children who suffer physical damage as a result of a beating by a parent are protected under the law, but I also want to make sure that a loving mother who wallops her child in the supermarket—to use the oft-quoted example—for repeatedly doing what he is told not to do, is not committing an arrestable offence. The state should not interfere in the way in which parents bring up their children unless real abuse or violence has occurred. Loving parents should be entitled to use moderate physical punishment if they deem it to be justified in their children's best interests.
The stated aim—which I applaud—of the noble Lord, Lord Lester, is to bring clarity to the law while at the same time achieving the broad objectives of which he spoke. Although it is reassuring to hear that, in his opinion, his amendment passes the test of legal clarity, we can reach a final judgment on that score only in the light of the remarks of the Attorney-General, which we are about to hear. I have no difficulty with the proposal of the noble Lord, Lord Lester, that cruelty, wounding and grievous bodily harm should be proscribed. No one disagrees with that. Where I have some uncertainty is over the meaning of "actual bodily harm" as defined by case law. It has been put to me that the term is open to a range of interpretations and could include, for example, minor bruising or even a red mark on the skin. It would be helpful to hear from the noble and learned Lord whether that is so. Can he say whether there have been cases—as I am told there have been—of incidents resulting in very minor injury or even no injury being charged as actual bodily harm? If the answer is "yes", we need to be very wary indeed of jettisoning the defence of reasonable chastisement in such cases.
But there could also be perverse consequences from the amendment if the term "actual bodily harm" is open to interpretation. If, let us say, a child is seen to be smacked by a parent and to suffer slight and temporary pain in consequence, a charge of common assault might be seen as likely to fail in court because of the defence of reasonable chastisement.
The alternative for the police in order to get a result would be to bring a charge of actual bodily harm. By doing so, they would be able to guarantee that the defence of reasonable chastisement would not be available to the parent. That is a worrying possibility. Currently the way in which the charging standards are implemented varies widely across the country. We cannot rely on them to reassure ourselves that such minor assaults would not reach the court under the banner of actual bodily harm.
The question for the House is that posed by the noble and learned Lord, Lord Ackner: whether the existing law is sufficiently defective to warrant a complete change. It has been argued that the current law falls foul of the UN convention. However, I note that the Government oppose the amendment in the name of the noble Baroness, Lady Finlay, and are

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allowing a free vote on that in the name of the noble Lord, Lord Lester. That hardly indicates that they believe a change in the law to be necessary.
If there have been cases of real abuse that have not been prosecuted, that does not necessarily argue for a change in the law; only an improvement in the way that it is administered and enforced. The defence of reasonable chastisement is well understood by the courts, especially in the light of the ECHR decision in the case of A v the UK. The noble Lord, Lord Thomas, appeared to acknowledge that point.
I shall listen very carefully to the noble and learned Lord the Attorney-General, but my belief is that the risks of changing the law considerably outweigh the risks of keeping the law as it is. Unless my mind is changed in the next few minutes, I shall vote accordingly.
Baroness WalmsleyMy Lords, as one of the movers of Amendment No. 106, I sometimes feel like Alice in Wonderland in a looking-glass world. First, I find myself, on behalf of my party, having to oppose a Back-Bench amendment tabled by my noble friend Lord Lester, whom I admire very much. I regret the need to do that, but I do so firmly.
Secondly, I find myself living in a country in which there is a bizarre situation worthy of the White Rabbit, the Queen of Hearts et al. The common law of this country decriminalises an act which, if committed against an adult, would be a criminal assault, simply on the basis that the victim is a child—and on no other basis. In other words, the person who deserves more protection actually gets less. There is no other situation in law in which a victim of a violent crime or his representative has to prove that he did not deserve to be assaulted.
I also find a fellow NSPCC ambassador, the noble Baroness, Lady Massey of Darwen, opposing the long-standing campaign of that organisation and all the other reputable children's charities representing the interests of children. It is a looking-glass world indeed, and I regret it.
I am proud to be British and I am patriotic, but I am not blind to my country's faults, and today I am trying to do something to redress one of those problems. This country has a culture of violence, and I want to redress the roots of that culture, which I believe lie in the hitting of children.
I agree with those who have said that children are different from adults, but that does not mean that they deserve any less protection under the law of assault. They are different for three reasons—and each reason supports the call for equality, rather than the other way about. First, children are smaller and more vulnerable and need more protection from anyone who seeks to use violence against them, not less. Secondly, they do not know how to behave and need to be taught. Their parents have the right and duty to teach them; they have a duty to teach them in the most effective possible way, but no right to do it in a way that infringes the child's basic human rights.
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I am a liberal, like my noble friend, and I believe that we should not interfere in people's private behaviour unless it infringes the basic human rights of someone else. I believe that this is just such a situation, and I am supported in that belief by the United Nations and the European Council, whose assembly called only last week for a ban on all physical punishment in the family and said that it would not interfere with the right to family life.
The third way in which children are different is that they take life very much as they find it. Lacking other experience, they assume that what happens to them is normal and right. If their parents hit them, that is what happens in the world, and they accept it. That is why children who are beaten severely and frequently are usually ominously silent. They no longer cry—they just whimper.
Children know that hitting them does not work. Last week, we saw a presentation in the House from some children, and they made it clear that hitting them teaches them only one thing—that if you want your own way and you are bigger and stronger than someone else, violence can get it for you. We hit our children and they learn that; then they go out and hit their playmates, and we smack them for hitting little Johnny. How illogical is that? Then they grow up and have fights in the pub, or hit their own wives and children. We condemn the one but condone the other. How logical is that?
Violence hurts the child and damages his perception of what is right. It also damages the parent and the relationship between the two, and it damages society. Here in Britain we have a society in which the level of crimes of violence is very high, especially among young people. The whole country seems to think that violence solves things—and it does not. The terrible situation in Iraq should tell us that. We live in a country in which one to two children die from violence or neglect every week. That is the tip of a terrible iceberg. Below the waterline is an enormous amount of violence against children. As the noble Baroness, Lady Finlay, said, 75 per cent of babies are hit even before they have learned to talk. How can it be reasonable to punish a little baby that does not even know what is right and cannot in any way be expected to? Hitting a child is not the only way in which to teach him how to behave and certainly not the only way in which to teach him about danger—but it does teach him that violence works.
5.45 p.m.
This whole debate has become very legalistic. It has been said that there must be certainty under the law, and there has been a lot of scaremongering about the possibility of prosecuting caring parents, but I hope that your Lordships will listen to the wise words of the noble Lord, Lord Condon, who should know if anyone does. But I believe that this debate should be about principle, and it saddens me that the Government will not accept the principle of equality.
The fact is that the law of any country should say something about the morals and standards of that country, and what its people believe to be right. The

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laws of this country say that hitting children can be justified. I believe that that is wrong, and I want the law to be clear in saying that hitting children is just as wrong as hitting adults—no more, no less—and that it should then be as understanding and sensible as it is about trivial assaults on adult victims when parents do not quite live up to that standard. I did not live up to that standard myself, as I have admitted many times in your Lordships' House. However, as with de minimis assaults on adults, the same charging standards should apply before any action is taken.
Every weekend we see assaults on sports fields when tempers rise; they even appear on national television, yet no action is taken. Every Saturday night, fists fly in pubs, yet action is very rarely taken. The Director of Public Prosecutions has made it clear that the interests of the child will be taken into account when establishing the public interest, and there is no public interest in prosecuting caring parents for trivial smacks, however undesirable they are. There, at least, my noble friend Lord Lester quoted me correctly. But the DPP did not endorse my noble friend's amendment. He simply said that taking away the defence of reasonable chastisement for all assaults except common assault was a possibility. He did not suggest that equal protection was unworkable.
My colleagues and I have never claimed that action should be taken every time a frustrated parent who cannot think of anything better to do hits the child he or she loves. We know from the polling on this issue that parents do not want to hit their children and usually regret it when they have done so. I know that I did. But it is not hypocritical to put past mistakes behind one and to move forward and change things, in the light of what we have learned from the experiences of other countries. None of us wants to feel like criminals, but we must realise that when we reach—
Lord Lester of Herne HillMy Lords, to get the matter absolutely clear, is it not the case that what the Director of Public Prosecutions in fact said about the proposal in my amendment was:
"That is a possibility and that would have the merit, it seems to us, of the legislation being more certain. I do not want to repeat myself but I think that we are a little uneasy at the idea that Parliament can fudge this issue and expect us to sort it out".
Baroness WalmsleyMy Lords, I thank my noble friend for that. I want Parliament not to fudge the issue today, and I believe that his amendment will provide the same level of uncertainty for children that we have at the moment. The prosecution would have to prove that harm had been done to the child—or the various levels of assault or injury to the child. That is not going to move us forward as regards child protection.
I believe that the law should educate people about the standards that we expect in a civilised society, and deter them from harming the most vulnerable. I would hope that when we reform the law completely to remove the defence of reasonable chastisement and
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give children equal protection, it will send out a very clear message that will make parents stop and think before hitting their children. If it stays the hand in the air, it will have achieved something, although none of us are deceived into believing that it will solve everything. It will not.
Let me tell noble Lords a little anecdote, which will answer the question posed by the noble Earl, Lord Onslow. I met a young man recently who told me that he and his four siblings had been regularly beaten as children—which, he said, had "really screwed them up". However, he accepted that his father loved them and was a very law-abiding man. He said that he was convinced that, had hitting children been as unlawful as hitting adults, his father would never have done it, and the psychological harm done to him and his siblings would never have happened.
If we put a clear law alongside a lot of publicity about all the better ways of teaching a child how to behave well, and a lot more resources into helping parents, we may in the fullness of time reach the situation of Sweden, which made this change 25 years ago. In that country child mortality from violence is almost nil, and children do not run wild. In fact, youth crime has not risen at all there in the past 20 years.
All this concentration on the courts misses the point. This is not about criminalising or prosecuting parents; it is about helping, supporting and understanding them. That is how it operates in all the 12 European countries where hitting a child is unlawful. There are no malicious private prosecutions for trivial acts, and the authorities channel parents who regularly hit in a way that harms the child into help, not prison. Please note that there are no sanctions in our amendment. It simply completely removes a legal excuse for hitting a child, except in situations of danger where physical restraint is acceptable.
So why are the Government, my noble friend Lord Lester and the noble Earl, Lord Howe, resisting that reform? They say it is because they do not want to see caring parents land up in court and that would be the inevitable consequence of our amendment. That is a classic and common tactic of those who oppose any change. They take a possible consequence of the change and stretch it to unreasonable extremes. They claim that that is what would always happen if the change took place. That is an unreasonable extreme which of course nobody wants. Your Lordships are not stupid and will see through that tactic immediately.
We know that in all the other countries where hitting children has become as unlawful as hitting adults, the number of obligatory interventions into family life has actually fallen. Is that not what we all want to see? That is because help is given earlier, before there is a need for formal intervention. There has been earlier intervention and a reduction in serious physical abuse of children. The noble Lord, Lord Laming, quoted an early draft of the Association of Chief Police Officers. Its final statement supports our amendment, but asks for clear guidelines.

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I will finish on this point. In Sweden—
Noble LordsOh!
Baroness WalmsleyMy Lords, I think that is unworthy of your Lordships. Noble Lords probably are aware that this campaign has been going on for many years. It is the first opportunity in 15 years for the issue to be attached to an appropriate Bill. It could be another 15 years before we get another opportunity. It is therefore absolutely vital that all the issues are properly aired and that a summary is made at the end of the debate. It would be inappropriate for my noble friend Lady Finlay—who will, as the mover of the amendment, make very brief comments—to answer all the points. So I think that I am behaving perfectly appropriately in giving a correct answer to the issues raised.
In Sweden, children know about the protection that they have a right to. They know that they and their parents have a right to help. They know that if they report that their parents are hitting them and need help to find different ways of doing their duty to discipline, they will receive that help. They are not in danger of having their family split up, as the noble Lord, Lord Stoddart, suggested might take place. That was one of the dire warnings given by the noble Earl, Lord Howe, in his speech in Committee. That has not happened in Sweden, nor in any of the other countries. There is not a big raft of malicious complaints and prosecutions anywhere else. Are we a malicious nation? Or do we really want to do something to move the protection of children forward? Amendment No. 106 will do that. I therefore beg your Lordships to vote for it. I cannot vote for the amendment of my noble friend Lord Lester unless it is amended by the amendments of my noble friend Lord Thomas of Gresford, because I believe that it does not move child protection forward. It gives us the same level of uncertainty as we have now. Indeed, it could be even worse.
The trouble is that the Government will say that they have done something, because—make no mistake—that is a government amendment manquée. They cannot be allowed to say that they have done something if Amendment No. 106B is carried, and it could be another 15 years before we have the chance to put that right. I beg your Lordships to vote for legislation to protect children and give them the equal protection that you and I enjoy against assaults upon us.
Baroness Ashton of UphollandMy Lords, I begin my paying tribute to all noble Lords who spoke in this debate. I believe that what unites every speaker in your Lordships' House is a desire to protect and support children. To that extent we share a common goal. I trust that no one watching, participating in or reading our deliberations will fail to recognise that. I pay tribute to all.
In the passion and emotion that underlay much of this debate—and indeed of the tabled amendments—there are two separate but interrelated questions—what is the legal effect of each amendment, and what are the policy and practical implications of each? I am
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pleased that my noble friend the Attorney-General is here today. I am very grateful to him. I felt this to be such an important debate that the House should receive his view on the legal issue. I invite him to do so before I continue.
The Attorney-General (Lord Goldsmith)My Lords, with the leave of the House I rise simply in the hope that I can be of assistance in my capacity as Attorney-General. It is not my intention to deal at all with the important policy issues raised today. That is an issue which the House—ultimately Parliament—will have to decide. My noble friend Lady Ashton will deal with the policy considerations.
My purpose in rising is threefold. First, I rise to assist the House by setting out the legal context in which these amendments fall to be considered; secondly, to advise the House of my view of the legal effect of each of the amendments if passed; and thirdly, in my capacity as superintending Minister for the Crown Prosecution Service, to deal simply with the suggestion made that it would be appropriate for Parliament to leave it to the discretion of the Crown Prosecution Service to decide when to prosecute in the case of minor smacking of children.
I deal first with the legal context. In law, any unwanted application of force to the body of another which is committed intentionally or recklessly will—unless there is a defence to it—be an offence. Technically this is known in law as a "battery", although often called an "assault". Assault without battery is where, as the noble Lord, Lord Thomas, said, the defendant intentionally or recklessly causes another to apprehend immediate and/ or unlawful violence. For convenience I will use the more common expression "assault", but noble Lords will understand that I mean by that an occasion where there is actual application of force.
To constitute an unlawful battery there need not be any kind of injury, so even a touching which leaves no visible mark at all can be an assault which is punishable by the criminal law. Some assaults will leave injuries, sometimes serious injuries—the law treats those cases more severely, of course, and there are as a result specific offences which apply where such injury occurs. I will return to that issue.
What then are the defences? There are several which the common law recognises, such as those which arise from the exigencies of everyday life—such as a slap on the back at a party, or jostling on the Underground. But the defence which is particularly pertinent here is the defence of reasonable chastisement. It has long been recognised by the law that a parent may inflict moderate and reasonable punishment as a correction to the child. That is the defence of reasonable chastisement. Without that defence, such punishment—including a single smack to a child—would be an unlawful assault and punishable by the criminal law.
I should underline, however, that the fact that the defence is available does not necessarily mean that a defendant will be able to avail himself of it. It is necessary that the force used is reasonable and moderate in all the circumstances. So the defence may be available but a jury

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or magistrates may be satisfied that the force used was more than moderate and reasonable in all the circumstances and so convict of the offence.
6 p.m.
In considering whether the force used is reasonable the Court of Appeal has laid down that "reasonable" must be considered against a number of factors, including the nature and extent of the defendant's behaviour, its duration, its physical and mental consequences in relation to the child, the age and personal characteristics of the child and the reasons given by the defendant for administering the punishment.
That takes me to my first point on the effect of Amendment No. 106 moved by the noble Baroness, Lady Finlay of Llandaff. The effect of that amendment in my view would be to criminalise smacking except in the limited and narrowly confined circumstances set out in subsection (2) of the amendment. The defence of reasonable chastisement would not be available therefore to a parent who smacks a naughty child out of frustration at being unable otherwise to correct the behaviour of the child. Unless the purpose was to avert an immediate danger to the child—I note the word "immediate" in subsection (2) of Amendment No. 106, which would appear therefore to exclude cases where the intent is to avert danger to the child which is more remote—to avert danger to property or to prevent the commission of a crime, this smack would be a crime. It would not matter that there was no lasting injury or even a reddening of the skin—this would be an offence.
I therefore say to my noble friend Lady Whitaker that the amendment criminalises smacking. I say to the noble Baroness, Lady Walmsley, when she says the amendment contains no sanction, that its effect is to bring in the existing sanction, at least for common assault, which is six months' imprisonment maximum. That would also be one of the effects of Amendments Nos. 106C, 106D and 106E in the name of the noble Lord, Lord Thomas of Gresford. Later I shall explain why that is the case and deal with their other effects.
I am well aware that there are those who take the view that all smacking should be illegal. For them this amendment would achieve their ends. However, for those who wish to outlaw some degrees of physical contact or corporal punishment but do not wish to criminalise or ban smacking, the amendment would not have the effect they desire. It is, in short, an amendment whose effect would be to ban smacking save, as I have said, in all but some narrowly confined circumstances. That was also the view given by the Director of Public Prosecutions when he gave evidence to the Joint Committee on Human Rights. He said that,
"quite clearly this outlaws batteries and assaults in all but very exceptional circumstances".
It is appropriate to deal with the other issue raised by some noble Lords that it would be acceptable to ban smacking in this way but to leave it to the discretion of
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the prosecutor to decide not to prosecute. The noble Baronesses, Lady Finlay and Lady Sharp, referred to the evidence of the Director of Public Prosecutions. He said that he suspected—with respect, he did not say that he was sure—that most minor assaults against children would not be prosecuted. However, as he said, this was based on the fact that most minor assaults against adults are not prosecuted. He went on to say that the comparison with adult victims was not an accurate one because of the vulnerability of children. He went on to make two further points clear. First, he said that it would not be possible to frame guidance to prosecutors which would absolve all minor acts of battery against children. Secondly, he made the point that it is for Parliament to frame its legislation to achieve the result that it wants to achieve. I agree. It is for Parliament to decide if smacking is to be banned. It is not right to leave that important public policy decision to others.
I, too, am concerned about leaving what is in effect a fundamental public policy choice to the prosecutor. If Parliament removes the reasonable chastisement defence, as Amendments Nos. 106, 106C, 106D, and 106E would do, it is therefore criminalising smacking, and it is not fair on the prosecutor to leave the decision whether to enforce that law to the discretion of the prosecutor. Noble Lords might also think that it would be unfair on parents because, as the noble Lord, Lord Lester, has said, they are entitled to certainty in the law so that they know what acts or omissions will make them liable to prosecution. This is a fundamental part of the common law and of our obligations under the European Convention on Human Rights.
Therefore, I respectfully advise noble Lords not to assume that they can safely vote for Amendment No. 106 or those standing in the name of the noble Lord, Lord Thomas of Gresford, in the belief that they need not be concerned that thereby the law would criminalise acts which they do not mean to criminalise because it can be left to the prosecutor. It is for Parliament to decide what it wants to achieve and for the prosecutor to give effect to the law as passed by Parliament, not to legislate himself.
I turn next to the effect of Amendment No. 106B in the name of the noble Lord, Lord Lester of Herne Hill. Essentially I agree with what he said about the effect of his amendment, but it is right that I should explain why in my own words. The effect of this amendment would be to remove the defence of reasonable chastisement in relation to offences of causing actual bodily harm and the more serious charges of unlawfully inflicting grievous bodily harm, causing grievous bodily harm with intent and cruelty to a child. Nor could the defence be relied upon in any civil proceedings where actual bodily harm is caused. The defence would remain available to parents or those in loco parentis to a charge of common assault.
Noble Lords will therefore wish to know—the noble Earl, Lord Howe, asked about this—when an assault leads only to a charge of common assault and when one of the higher offences, particularly assault occasioning actual bodily harm, comes into play. The standard legal definition of "actual bodily harm" is,

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"any hurt or injury calculated to interfere with the health or comfort of the [victim]. Such hurt or injury need not be permanent, but must … be more than merely transient and trifling".
So the offence does not require that there be a serious injury but that there be an injury which is more than transitory. Actual bodily harm is, moreover, not confined to physical harm but can and does include psychological harm. It would not include mere emotions such as fear, distress or panic, but where there is evidence of psychiatric injury, that can amount to actual bodily harm.
Reference has been made to the CPS charging standards. These are not in any sense legally binding on the courts but they guide police and prosecutors and represent the interpretation of the ingredients appropriate to an offence. In relation to an offence of common assault, the standards indicate that a charge of common assault will normally be appropriate where injuries amount to no more than grazes, minor bruising, reddening of the skin, scratches, superficial cuts or a black eye. At the moment the standards give guidance to prosecutors to focus on the nature of the injury caused and not on the circumstances of the victim when deciding which offence to charge. However—
Baroness Howells of St DavidsMy Lords, before the noble and learned Lord sits down, the point I was making is that reddening of the skin cannot possibly apply in the case of black children.
Lord GoldsmithMy Lords, I hear what my noble friend says. I should like to tell noble Lords about the proposed changes to the charging standard which the Director of Public Prosecutions has advised me he intends to make because those are very pertinent to your Lordships' consideration.
The revised charging standard will include guidance that where serious aggravating features exist, cases in which the level of injuries would usually lead to a charge of common assault, could more appropriately be charged as actual bodily harm. Such serious aggravating features would include the vulnerability of the victim, such as when they are a child assaulted by an adult. The effect of that pending change is that even minor assaults by a parent on a child, where grazes, scratches, abrasions, minor bruising, swelling, superficial cuts or a black eye are caused, will normally be charged as assault occasioning actual bodily harm.
However, given the publicity over the weekend and this morning, I should make it clear that reddening of the skin where it is merely transitory will usually still be charged as common assault. That is because the definition of "actual bodily harm" requires the injury to be more than transient. Where the reddening subsists for hours or days, that may suggest a charge of actual bodily harm.
That change, in combination with the amendment in the name of the noble Lord, Lord Lester, would have the effect that the defence of "reasonable chastisement" could not normally be relied upon where any injury that
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was more than transitory was caused. In my view, legally, the Lester amendment would have the effect of preventing harm to children without criminalising parents for minor disciplinary steps.
Finally, I need to deal with the amendment of the noble Lord, Lord Thomas, which I can do shortly. There are three points to make. First, the amendment, like that of the noble Baroness, Lady Finlay, abolishes the defence of reasonable chastisement in proceedings for all offences of assault and in civil proceedings, save for some narrowly defined exceptions, and has the effect of criminalising parents who administer minor disciplinary smacks.
Secondly, the amendment appears to be even narrower than that of the noble Baroness, because the only exception it permits is where the act was for the purpose of restraining the child from immediate or future harm to itself or another. It does not include, as Amendment No. 106 does, averting danger to property, or preventing the commission of a crime. I do not know whether or not the noble Lord, Lord Thomas, intends the latter to be the case. There is a defence of preventing the commission of a crime in Section 3 of the Criminal Law Act 1967. The noble Lord has not proposed the disapplication in terms of that defence, but the position is not clear.
Further—this is the third point—the noble Lord proposes that there should be placed on the defendant the legal burden of proving, on the balance of probabilities, that the act was reasonable for that purpose. That proposal creates a legal difficulty that I do not welcome. As noble Lords will know, it is rare for the law to place on a defendant the burden of proving a defence. Normally it is the prosecution who has to prove beyond reasonable doubt each of the elements that make up the offence. Of course there are exceptions, but the courts have been much exercised by the question of whether such "reverse burdens", as they are known, are a breach of the right to a fair trial, and in some cases they have read those clauses down because of European Convention on Human Rights implications. Whilst the case law suggests that exceptions of this kind may be permissible, the difficulty they have caused in the past is such that we should not rush to create new examples of the reverse legal burden.
It is not clear that the burden intended by the noble Lord, Lord Thomas, relates to proving that the battery was for the purpose permitted, or to proving that it was reasonable for that purpose, but without having to prove that was the purpose, or whether it is both. Noble Lords should bear in mind the fact that the consequence of putting the burden on the defendant on a particular fact is that if the magistrates or jury are in doubt on the matter, and cannot say that it is more likely than not that the defendant is right, they will have to convict, whereas normally, of course, the defendant gets the benefit of reasonable doubt.
Baroness Ashton of UphollandMy Lords, I shall be brief. This debate is about the most sensitive and intimate relationship of all, between parents and their children, and about the parameters of the involvement

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of the state in that relationship in order to protect those children. On Second Reading I indicated that, were an amendment to come forward that sought to give greater protection to children but did not criminalise parents, the Government would be willing to offer a free vote. The history of that position is as follows. Organisations and individuals have come to us and said they believe there are circumstances where children are subject to great stress and suffering, and where parents should be prosecuted but are not, either because of a mistaken belief about the way the law works, or because the law was too vague or too wide. We listened with great care to those organisations and individuals, some of whom are in your Lordships' House, and to all of whom I pay tribute.
Amendment No. 106 was tabled at Committee, and I indicated the reasons why the Government felt they could not offer a free vote. I indicated the two views that came together around the amendment: those who believed, as a matter of principle, that in all circumstances it is wrong for parents to use any form of smacking or slapping against their children; and others who believed that while a loving parent might do that in certain circumstances, it would never be prosecuted because the prosecutors would not pursue. My noble friends have given the answer to why we feel it is important that we cannot give a free vote on that issue. The amendment creates uncertainty at best, and makes it absolutely clear that parents would be criminalised.
The noble Baronesses, Lady Finlay and Lady Walmsley, have been extremely generous in giving me their time to discuss this issue. We have had many open and frank discussions, and we have not always agreed, but I recognise and pay tribute to their work. I have said to them, and I say again, that, whatever the outcome of today's debate, I look forward to working closely with them, to see what more we can do to support children, in the work that they do as ambassadors for the NSPCC and in other capacities. I genuinely look forward to that.
My noble friend indicated that the amendment of the noble Lord, Lord Lester, provides greater protection for children without resorting to criminalisation of parents, which is why we are able to offer a free vote on that amendment.
I want to end with a couple of comments. I believe wholeheartedly that we need to do more to support parents. I believe in the Sure Start programme, for which I was responsible, and in education and support for parents. I also believe that the way to do this is to support and encourage parents, which is something the Government are committed to and, in a sense, is at the heart of this Bill. I also believe that it is very important that we do not leave it to those who would have to interpret the law to determine what our actions were meant to be. We are lawmakers. We should tread lightly in making the law in this way.
It is important that each of us recognises our individual role in this matter. I, as a Minister and as a person, have not spent more time on any other subject in the three years of my ministerial career than I have on this issue. I pay tribute to everybody who has come
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to talk to me in many different meetings, not least in the All-Party Parliamentary Group for Children, to give me their views. I know how important this issue is in your Lordships' House, and I agree it is important to ensure that the law is in the right place. I am not ashamed of where I stand. It is important that we make sure we protect children appropriately.
It has been an important debate. We should take care of our children, and in our role as lawmakers, it is important that we take care. I hope noble Lords will reject Amendment No. 106, and Amendments Nos. 106C, 106D and 106E in the name of the noble Lord, Lord Thomas of Gresford, because of the effect they would have. The Government believe that Amendment No. 106B in the name of the noble Lord, Lord Lester, affords the House an opportunity to search its own conscience, and to take a view on whether that amendment offers greater protection for children in the right balance of involvement in family life.
Baroness Finlay of LlandaffMy Lords, I am grateful to all those who have taken part, particularly the Minister, who has spent a great amount of time with myself and others discussing this issue. I am grateful to the Attorney-General for coming to the House today. As we have said, it is indeed for Parliament to decide. An important principle is involved: is battery of a child justified, or does it infringe the child's human rights? The police have said that this is a change whose time has come. We all support Sure Start, and all the other programmes that have been undertaken. No one condemns any of those.
The law must be clear and give a lead, as was clearly expounded by the noble Baroness, Lady Kennedy. The current law is confusing. I am concerned that Amendment No. 106B maintains that confusion, because of the difficulty of proving that there has been actual bodily harm, for the reasons so clearly outlined, depending on the physiology of the child, their race, where the blow was inflicted and so on. Therefore, in my belief that Amendment No. 106 is absolutely clear and sends a message to society that hitting children is wrong, I feel that I must test the opinion of this House.
6.19 p.m.
On Question, Whether the said amendment (No. 106) shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 249.

Division No. 1

CONTENTS

Addington, L.

Dholakia, L.

Ampthill, L.

Ells-Thomas, L.

Barker, B.

Falkland, V.

Berkeley, L.

Falkner of Margravine, B.

Bernstein of Craigweil, L.

Faulkner of Worcester, L.

Billingham, B.

Finlay of Llandaff, B.[Teller]

Bragg, L.

Gale, B.

Condon, L.

Garden, L.

Coventry, Bp.

Goodhart, L.

Darcy de Knayth, B.

Hamwee, B.

David, B.

Harris of Richmond, B.

567

Harrison, L.

Redesdale, L.

Hattersley, L.

Rendell of Babergh, B.

Hollick, L.

Renton, L.

Hooson, L.

Richardson of Calow, B.

Howells of St. Davids, B.

Rix, L.

Judd, L.

Roberts of Llandudno, L.

Kennedy of The Shaws, B.

Rodgers of Quarry Bank, L.

Laird, L.

St John of Fawsley, L.

Ludford, B.

Scott of Needham Market, B.

Maclennan of Rogart, L.

Sharp of Guildford. B.

McNally, L.

Sheldon, L.

Maddock, B.

Shutt of Greetland, L.

Manchester, Bp.

Smith of Clifton, L.

Michie of Gallanach, B.

Stern, B.

Miller of Chilthorne Domer, B.

Taverne, L.

Morgan, L.

Thomas of Gresford, L.

Murphy, B.

Thomas of Walliswood, B.

Nicholson of Winterbourne, B.

Tordoff, L.

Northover, B.

Turner of Camden, B.

Oakeshott of Seagrove Bay, L.

Uddin, B.

Ouseley, L.

Wamsley, B. [Teller]

Oxford, Bp.

Warnock, B.

Patel, L.

Whitaker, B.

Pendry, L.

Wilkins, B.

Peston, L.

Williams of Crosby, B.

Prys-Davies, L.

Williamson of Horton, L.

NOT-CONTENTS

Ackner, L.

Colwyn, L.

Acton, L.

Cope of Berkeley, L.

Ahmed, L.

Craig of Radley, L.

Alli, L.

Craigavon, V.

Alton of Liverpool, L.

Crathorne, L.

Amos, B. (Lord President of the)

Crawley, B.

Council)

Crickhowell, L.

Andrews, B.

Cumberlege, B.

Archer of Sandwell, L.

Dahrendorf, L.

Ashton of Upholland, B.

Davies of Coity, L.

Astor, V.

Davies of Oldham, L. [Teller]

Attlee, E.

Dearing, L.

Bach, L.

Deedes, L.

Bassam of Brighton, L.

Denham, L.

Beaumont of Whitley, L.

Desai, L.

Bell, L.

Dixon, L.

Bhattacharyya, L.

Dixon-Smith, L.

Birt, L.

Donaldson of Lymington, L.

Blackstone, B.

Donoughue, L.

Blackwell, L.

Drayson, L.

Blaker, L.

Dubs, L.

Blatch, B.

Eccles of Moulton. B.

Bledisloe, V.

Eden of Winton, L.

Boothroyd, B.

Elder, L.

Borrie, L.

Elles, B.

Bowness, L.

Elliott of Morpeth, L.

Brennan, L.

Elton, L.

Bridgeman, V.

Emerton, B.

Brooke of Sutton Mandeville, L.

Erroll, E.

Brookeborough, V.

Evans of Parkside, L.

Brookman, L.

Evans of Temple Guiting, L.

Brooks of Tremorfa, L.

Falconer of Thoroton, L. (Lord Chancellor)

Brougham and Vaux, L.

Burnham, L.

Farrington of Ribbleton, B.

Buscombe, B.

Fearn, L.

Campbell of Alloway, L.

Feldman, L.

Campbell-Savours, L.

Filkin, L.

Carlisle of Bucklow, L.

Fitt, L.

Carnegy of Lour, B.

Fookes, B.

Carter of Coles, L.

Fraser of Carmyllie, L.

Chadlington, L.

Freyberg, L.

Chandos, V.

Fyfe of Fairfield, L.

Chorley, L.

Gavron, L.

Christopher, L.

Gibson of Market Rasen, B.

Clark of Windermere, L.

Giddens, L.

Clinton-Davis, L.

Glentoran, L.

568

Golding, B.

Montagu of Beaulieu, L.

Goldsmith, L.

Montrose, D.

Goschen, V.

Moore of Wolvercote, L.

Goudie, B.

Morgan of Huyton, B.

Graham of Edmonton, L.

Morris of Aberavon, L.

Gray of Contin, L.

Morris of Bolton, B.

Greengross, B.

Morris of Manchester, L.

Greenway, L.

Moser, L.

Grenfell, L.

Moynihan, L.

Grocott, L. [Teller]

Murton of Lindisfarne, L.

Hanham, B.

Naseby, L.

Hannay of Chiswick, L.

Newton of Braintree, L.

Harris of Haringey, L.

Nicol, B.

Hart of Chilton, L.

O'Cathain, B.

Haskel, L.

Onslow, E.

Hayhoe, L.

Oppenheim-Barnes, B.

Henig, B.

Parekh, L.

Henley, L.

Park of Monmouth, B.

Hodgson of Astley Abbotts, L.

Parkinson, L.

Hogg of Cumbernauld, L.

Patel of Blackburn, L.

Hollis of Heigham, B.

Patten, L.

Hooper, B.

Pearson of Rannoch, L.

Howard of Rising, L.

Peel, E.

Howe, E.

Perry of Southwark, B.

Howe of Aberavon, L.

Plant of Highfield, L.

Howe of Idlicote, B.

Quirk, L.

Howell of Guildford, L.

Randall of St. Budeaux, L.

Howie of Troon, L.

Rawlings, B.

Hoyle, L.

Reay, L.

Hughes of Woodside, L.

Rees, L.

Hunt of Chesterton, L.

Richard, L.

Hunt of Kings Heath, L.

Roberts of Conwy, L.

Hunt of Wirral, L.

Roll of Ipsden, L.

Hurd of Westwell, L.

Rooker, L.

Irvine of Lairg, L.

Rosser, L.

Jay of Paddington, B.

Sainsbury of Turville, L.

Jenkin of Roding, L.

St. John of Bletso, L.

Jones, L.

Saltoun of Abernethy, Ly.

Jopling, L.

Sandwich, E.

Jordan, L.

Sawyer, L.

Kalms, L.

Scotland of Asthal, B.

Kilclooney, L.

Seccombe, B.

Kimball, L.

Selborne, E.

King of West Bromwich, L.

Sharpies, B.

Kingsland, L.

Shaw of Northstead, L.

Kirkhill, L.

Simon, V.

Laidlaw, L.

Skelmersdale, L.

Laming, L.

Slim, V.

Lamont of Lerwick, L.

Snape, L.

Lawson of Blaby, L.

Soulsby of Swaffham Prior, L.

Layard, L.

Stewartby, L.

Lea of Crondall, L.

Stoddart of Swindon, L.

Lipsey, L.

Stone of Blackheath, L.

Listowel, E.

Strabolgi, L.

Lloyd of Berwick, L.

Strathclyde, L.

Lofthouse of Pontefract, L.

Swinfen, L.

Lucas, L.

Symons of Vernham Dean, B.

Luke, L.

Tanlaw, L.

Lyell, L.

Taylor of Blackburn, L.

Macdonald of Tradeston, L.

Tebbit, L.

McIntosh of Haringey, L.

Temple-Morris, L.

MacKenzie of Culkein, L.

Thatcher, B.

Mackenzie of Framwellgate, L.

Thomas of Swynnerton, L.

Mackie of Benshie, L.

Thomson of Monifieth, L.

Mallalieu, B.

Tomlinson, L.

Mar, C.

Trenchard, V.

Marlesford, L.

Triesman, L.

Marsh, L.

Truscott, L.

Masham of Ilton, B.

Tunnicliffe, L.

Mason of Barnsley, L.

Ullswater, V.

Massey of Darwen, B.

Vinson, L.

Mayhew of Twysden, L.

Waddington, L.

Merlyn-Rees, L.

Wade of Chorlton, L.

Miller of Hendon, B.

Wakeham, L.

Monro of Langholm, L.

Wall of New Barnet, B.

Monson, L.

Walpole, L.

569

Walton of Detchant, L.

Wilcox, B.

Warner, L.

Williams of Elvel, L.

Warwick of Undercliffe, B.

Woolmer of Leeds, L.

Weatherill, L.

Resolved in the negative and amendment disagreed to accordingly.
6.36 p.m.
[Amendment No. 106A had been withdrawn from the Marshalled List.]
Lord Lester of Herne Hillmoved Amendment No. 106B:
After Clause 48, insert the following new clause—
"REASONABLE PUNISHMENT

In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.

(2) The offences referred to in subsection (1) are—

an offence under section 18 or 20 of the Offences against the Person Act [861 (c. 100) (wounding and causing grievous bodily harm);

(b) an offence under section 47 of that Act (assault occasioning actual bodily harm);

(c) an offence under section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under 16).

(3) Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.

(4) For the purposes of subsection (3) "actual bodily harm" has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861 (c. 100).

(5) In section I of the Children and Young Persons Act 1933 (c. 12), omit subsection (7)."

The noble Lord said: My Lords, I beg to move Amendment No. 106B, to which I have already spoken.
[Amendments Nos. 106C to 106E not moved.]
6.37 p.m.
On Question, Whether the said amendment (No. 106B) shall be agreed to?
Their Lordships divided: Contents, 226; Not-Contents, 91.

Division No. 2

CONTENTS

Acton, L.

Ashton of Upholland, B.

Addington, L.

Bach. L.

Ahmed, L.

Barker, B.

Alli, L.

Bassam of Brighton, L.

Alton of Liverpool, L.

Beaumont of Whitley, L.

Amos, B. (Lord President of the

Bernstein of Craigweil, L.

Council)

Bhattacharyya, L.

Andrews, B.

Billingham, B.

Archer of Sandwell, L.

Birt, L.

570

Blackstone, B.

Hollis of Heigham, B.

Boothroyd, B.

Howarth of Breckland, B.

Borrie, L.

Howe of Aberavon, L.

Bowness, L.

Howe of Idlicote, B.

Bragg, L.

Howie of Troon, L.

Brennan, L.

Hoyle, L.

Brooke of Alverthorpe, L.

Hunt of Kings Heath, L.

Brooke of Sutton Mandeville, L.

Hunt of Wirral, L.

Brookeborough, V.

Irvine of Lairg, L.

Brookman, L.

Jay of Paddington, B.

Buscombe, B.

Joffe, L.

Campbell-Savours, L.

Jones, L.

Carnegy of Lour, B.

Judd, L.

Carter, L.

Kennedy of The Shaws, B.

Carter of Coles, L.

King of West Bromwich, L.

Chandos, V.

Kingsland, L.

Chorley, L.

Kirkhill, L.

Christopher, L.

Laidlaw, L.

Clark of Windermere, L.

Laird, L.

Clarke of Hampstead, L.

Laming, L.

Clement-Jones, L.

Layard, L.

Clinton-Davis, L.

Lea of Crondall. L.

Condon, L.

Lester of Herne Hill, L. [Teller]

Corbett of Castle Vale, L.

Linklater of Butterstone, B.

Craigavon, V.

Lipsey, L.

Crathome, L.

Listowel, E.

Crawley, B.

Liverpool, E.

Cumberlege, B.

Lloyd of Berwick, L.

Dahrendorf, L.

Lockwood, B.

Davies of Coity, L.

Lofthouse of Pontefract, L.

Davies of Oldham, L.

Lyell, L.

Dean of Thornton-le-Fylde, B.

Macdonald of Tradeston, L.

Dearing, L.

McIntosh of Haringey, L.

Desai, L.

McIntosh of Hudnall, B.

Donaldson of Lymington, L.

MacKenzie of Culkein, L.

Donoughue, L.

Mackie of Benshie, L.

Drayson, L.

Maclennan of Rogart, L.

Dubs, L.

McNally, L.

Elder, L.

Maddock, B.

Emerton, B.

Mallalieu, B.

Evans of Temple Guiting, L.

Mar, C.

Falconer of Thoroton, L. (Lord Chancellor

Mar and Kellie, E.

Marlesford, L.

Falkner of Margravine, B.

Marsh, L.

Farrington of Ribbleton, B.

Masham of Ilton, B.

Faulkner of Worcester, L.

Massey of Darwen, B. [Teller]

Fearn, L.

Mayhew of Twysden, L.

Filkin, L.

Merlyn-Rees, L.

Fitt, L.

Michie of Gallanach, B.

Freyberg, L.

Montagu of Beaulieu, L.

Fyfe of Fairfield, L.

Montrose, D.

Gale, B.

Moore of Wolvercote, L.

Garden. L.

Morgan of Drefelin, B.

Gavron, L.

Morgan of Huyton, B.

Gibson of Market Rasen, B.

Morris of Aberavon, L.

Giddens, L.

Morris of Manchester, L.

Golding, B.

Moser, L.

Goldsmith, L.

Murphy, B.

Goodhart, L.

Murton of Lindisfarne, L.

Goudie, B.

Newton of Braintree, L.

Gould of Potternewton, B.

Nicol, B.

Graham of Edmonton, L.

Northbrook, L.

Greengross, B.

Northover, B.

Grenfell, L.

Oakeshott of Seagrove Bay, L.

Grocott, L.

Onslow, E.

Hamwee, B.

Orme, L.

Harris of Haringey, L.

Oxford, Bp.

Harris of Richmond, B.

Parekh, L.

Harrison, L.

Patel of Blackburn, L.

Hart of Chilton, L.

Peel, E.

Haskel, L.

Pendry, L.

Hayhoe, L.

Plant of Highfield, L.

Henig, B.

Prashar, B.

Henley, L.

Prys-Davies, L.

Hogg of Cumbernauld, L.

Quirk, L.

Hollick, L.

Radice, L.

571

Ramsay of Cartvale, B.

Stone of Blackheath, L.

Randall of St. Budeaux, L.

Strabolgi, L.

Rea, L.

Symons of Vernham Dean, B.

Redesdale, L.

Tanlaw, L.

Richard, L.

Taverne, L.

Rix, L.

Taylor of Blackburn, L.

Roberts of Conwy, L.

Temple-Morris, L.

Roberts of Llandudno, L.

Thomas of Swynnerton, L.

Rodgers of Quarry Bank, L.

Thomson of Monifieth, L.

Rooker, L.

Thornton, B.

Rosser, L.

Tomlinson, L.

Sainsbury of Turville, L.

Tordoff, L.

St. John of Bletso, L.

Triesman, L.

St John of Fawsley, L.

Truscott, L.

Sandberg, L.

Tunnicliffe, L.

Sandwich, E.

Turnberg, L.

Sawyer, L.

Wall of New Barnet, B.

Scotland of Asthal, B.

Walpole, L.

Scott of Needham Market, B.

Walton of Detchant, L.

Selborne, E.

Warner, L.

Sheldon, L.

Warnock, B.

Shutt of Greetland, L.

Warwick of Undercliffe, B.

Simon, V.

Watson of Richmond, L.

Simon of Glaisdale, L.

Weatherill, L.

Slim, V.

Whitty, L.

Smith of Clifton, L.

Wilkins, B.

Snape, L.

Williams of Crosby, B.

Soulsby of Swaffham Prior, L.

Williams of Elvel, L.

Steel of Aikwood, L.

Woolmer of Leeds, L.

NOT-CONTENTS

Ackner, L.

Kalms, L.

Astor, V.

Kilclooney, L.

Attlee, E.

Kimball, L.

Bell, L.

Lamont of Lerwick, L.

Blackwell, L.

Lawson of Blaby, L.

Blaker, L.

Luke, L.

Blatch, B.

Mason of Barnsley, L.

Bledisloe, V.

Miller of Chilthorne Domer, B.

Bridgeman, V.

Miller of Hendon, B.

Brougham and Vaux, L.

Monro of Langholm, L.

Burnham, L.

Monson, L.

Campbell of Alloway, L.

Morgan, L.

Carlisle of Bucklow, L.

Morris of Bolton, B.

Chadlington, L.

Moynihan, L.

Chan, L.

Naseby, L.

Colwyn, L.

O'Cathain, B.

Cope of Berkeley, L.

Oppenheim-Barnes, B.

Deedes, L.

Park of Monmouth, B.

Denham, L.

Parkinson, L.

Dixon, L.

Patten, L.

Dixon-Smith, L.

Pearson of Rannoch, L.

Eccles of Moulton, B.

Rawlings, B.

Eden of Winton, L.

Reay, L.

Elis-Thomas, L.

Rees, L.

Elles, B.

Rendell of Babergh, B.

Elton, L.

Renton, L.

Erroll, E.

Saltoun of Abernethy, Ly.

Evans of Parkside, L.

Seccombe, B.

Falkland, V.

Sharp of Guildford, B.

Feldman, L.

Sharples, B.

Fookes, B.

Shaw of Northstead, L.

Glentoran, L.

Skelmersdale, L.

Goschen, V. [Teller]

Stewartby, L.

Gray of Contin, L.

Stoddart of Swindon, L.

Greenway, L.

Strathclyde, L.

Hodgson of Astley Abbotts, L.

Swinfen, L.

Hooson, L.

Tebbit, L.

Howard of Rising, L.

Thatcher, B.

Howell of Guildford, L.

Thomas of Gresford, L.

Hughes of Woodside, L.

Thomas of Walliswood, B.

Jenkin of Roding, L.

Trenchard, V.

Jopling, L.

Ullswater, V.

Jordan, L.

Vinson, L. [Teller]

572

Waddington, L.

Walmsley, B.

Wade of Chorlton, L.

Wilcox, B.

Wakeham, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.51 p.m.
Clause 8 [Information databases]:
Baroness Barker
Page 6, line 15, after second "the" insert "sole"
Baroness Ashton of UphollandMy Lords, I thank the noble Baroness, Lady Barker, for raising this issue. I will be as brief as possible. I hope that the Government have reassured noble Lords about the purposes for which we are proposing the establishment of information-sharing databases. We have no intention of using the Clause 8 powers for purposes other than co-operation to improve the well-being of children and arrangements to safeguard and protect their welfare. That is why we have drafted the clause as we have.
Amendment No. 106F would have no effect—if I can say that without in any way demeaning its purpose, because I understand it. It would have no effect because I am able to give the reassurance that the noble Baroness, Lady Barker, is looking for. The clause as it stands gives the Secretary of State the power regarding the establishment of databases for the purposes of arrangements under Clauses 6 and 7 and under Section 175 of the Education Act 2002. There is no flexibility for the Secretary of State to exercise that power for any other purpose, and I hope that on that basis the noble Baroness, Lady Barker, feels able to withdraw her amendment.
Baroness BarkerMy Lords, I welcome that clear statement by the Minister—it was exactly the sort of assurance for which I was looking and her words are now on the record for those who will spend a considerable amount of time following the implementation of Clause 8. The statement is very important and on the basis of it I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7 p.m.
Baroness Ashton of Uphollandmoved Amendment No. 107:
Page 6, line 25, at end insert—
"(2A) A database under this section may only include information falling within subsection (2B) in relation to a person to whom arrangements specified in subsection (1) relate.
(2B) The information referred to in subsection (2A) is information of the following descriptions in relation to a person—

his name, address and date of birth;

(b) a number identifying him;

(c) the name and contact details of any person with parental responsibility for him (within the meaning of section 3 of the Children Act 1989 (c. 41)) or who has care of him at any time;

(d) details of any education being received by him (including the name and contact details of any educational institution attended by him);

(e) the name and contact details of any person providing primary medical services in relation to him under Part 1 of the National Health Service Act 1977 (c. 49);

574

(f) the name and contact details of any person providing to him services of such description as the Secretary of State may by regulations specify;

(g) information as to the existence of any cause for concern in relation to him;

(h) information of such other description as the Secretary of State may by regulations specify."

The noble Baroness said: My Lords, in moving Amendment No. 107, I shall also speak to Amendments Nos. 109 to 112, 118 to 123, 126, 128 to 130, 134 and 137 to 142. I shall do so as briefly as I can.
The amendments relate to the information databases and fulfil commitments that I have given in your Lordships' House to put more information on the face of the Bill. Noble Lords will know of the concerns expressed by the Delegated Powers and Regulatory Reform Committee and by noble Lords at Committee stage. There was concern that the powers were broadly drawn and that important issues are to be the subject of regulations. The Committee invited the Government to consider putting more detail on the face of the Bill. I offered a commitment that I would bring forward amendments on Report to address those concerns. During the Committee stage, I said that I was prepared to consider other changes.
I said in Committee that we would consider how best to place arrangements for practitioners to be able to signal to each other the existence of a concern. Noble Lords will know that there is a basic principle that we wish to achieve by this provision. We want practitioners to take appropriate action when they believe that a child is not thriving as he should be and then indicate on the database that they have done so and wish to be contacted by other practitioners who may become involved with the child because they have something to discuss. Of course, actions may vary, but any action would normally involve discussing the issues with the family and child and might well involve discussions with other practitioners, making a referral or simply a decision to monitor the situation.
What is certain is that signalling the existence of a concern must not be a substitute for doing something. We have debated that at some length and I recognise that the term "concern" has implications of child protection for some issues. Indeed, noble Lords who listened to the trailblazers will know that they raised issues about needing to look carefully at this area. We are talking primarily about picking up issues relating to the well-being and development of a child as part of our preventive agenda.
7 p.m.
For these reasons we are not proposing any amendment to the Bill, but we are committed to consult publicly this autumn on how this aspect of the database should operate to inform our regulations and guidance. That will be a formal consultation under Cabinet Office rules. It will provide us with an opportunity to gain reactions from practitioners, children and young people, families and other interested parties on specific propositions on how practitioners should indicate the existence of a concern on their part. It will be a public consultation and

575
among the issues to be addressed we shall examine the language and the phraseology to be used to describe what is to be done— indeed, the terminology and the flags of concern.
I shall endeavour to ensure that noble Lords who participate in this debate receive copies of that consultation when it is published and that a copy is placed in the Library of the House. It is important that before any regulations are laid or debated noble Lords have the benefit of knowing what the consultation has said.
Another issue that has been raised in your Lordships' House is sensitive services. We want to ensure that these issues are dealt with properly. So we propose also to include in the public consultation how best to deal with recording practitioner details in relation to sensitive services. Key issues that we shall need to explore are which practitioners would be able to see the involvement of those providing sensitive services and to what extent the inclusion of such information and the determination of who might see it should be subject to the consent of the child, the young person or the parents.
I wanted to say that at the beginning because I know that those issues have been raised and I wanted to lay out where the Government plan to take the consultation. I shall now briefly talk to the detail of the amendments that stand in my name. As I have said, they are in response to the report of the Delegated Powers and Regulatory Reform Committee.
I turn to Amendments Nos. 107 and 126 and minor consequential Amendments Nos. 109, 118, 128 and 137. New subsections (2A) and (2B) replace current subsection (5) and amplify subsection (4) of Clauses 8 and 23. They provide for the inclusion in the Bill of specified basic information to be held on all children in the database, for the name and contact details of practitioners who are providing specialised services to a child to be entered on the database and for practitioners to be able to indicate the fact that they have a concern about a child.
I want to reassure noble Lords on the particular point about case information. If the drafting of this amendment does not do so, I undertake to take the issue away and consider it further to see if there is a further amendment that I can table at Third Reading. I know from discussions outside your Lordships' House that there is a concern that we should be very clear that the databases may not include information such as case data. I am very happy to consider that again. I do not want to pre-empt the debate, but it is important to say that.
The effect of the subsection is reinforced by Amendments Nos. 109 and 128. The information to be held is name, address, date of birth, person with parental responsibility, unique identifying number, educational setting and GP practice details.
Paragraph (c) is drawn more widely than those with parental responsibility so that the name of the person who has day-to-day care, for instance a foster carer, can be included. But we do not want to include nannies or
576
childminders who look after a child for only a number of hours a week. We shall specify in regulations who the people in paragraph (c) might be.
Paragraph (d) is intended to cover those educated at home, in pupil referral units, in prison or secure units or in hospital as well as in schools and colleges. Paragraph (e) provides for the inclusion of GP practice details. It remains our intention for health visitor details to be a part of the basic data that the databases collect. We have not been able to draft an amendment to make this clear at this stage; the legislative arrangements that cover health visiting are about to be changed through new nursing and midwifery orders. We propose to use regulations to make clear how contact details of those carrying out these functions should be included.
Paragraph (f) of the new subsection (2B) supersedes the original subsection (5)(a), which is removed by the minor consequential Amendments Nos. 118 and 137. I hope that noble Lords will be reassured that the wording here is more tightly drawn.
Paragraph (g) replicates the original subsection (5)(b) on the existence of a cause for concern. Subsection (5)(b) is removed by minor consequential drafting amendments.
We have framed Amendment No. 107 in such a way as to define what is to be included in the databases more tightly but we want to retain the power in regulation to add information that may be required in the future. Paragraph (h) of subsection (2B) provides for regulation to specify that other information. This is not about creating the ability to change the purpose and nature of the databases. The purpose of this package of amendments is to make clear on the face of the Bill the key characteristics but to retain flexibility for any future organisational change, or for a new identified data requirement.
The approval of Parliament through the affirmative resolution procedure will be necessary. I stress that there is no intention to provide under this power for the inclusion of case information.
Amendments Nos. 110 and 129 carry out my commitment to bring forward an amendment that those agencies or bodies that will be required or permitted to disclose information to the databases will be specified on the face of the Bill. Amendments Nos. 112 and 134 list them.
New subsections (4A) and (4B) list the two groups of persons and bodies who are respectively required or permitted to disclose information for inclusion in the database. Paragraph (a) of (4A) refers back to the persons and bodies covered by Clauses 7 and 22. Paragraphs (c) and (d) refer to governing bodies of maintained schools and further education colleges, which are included in this clause by virtue of the link to Section 175 of the Education Act 2002, which came into force on 1 June. Paragraph (e) includes registered independent schools in the data.
New subsection (4B) lists the persons and bodies who will be permitted to disclose information to the database. This amendment will also allow social

577
landlords, for example, to be able to reply to requests from those managing the database. They may well have valuable up-to-date information to fill the gap on the basic data on a child. However, we are not talking about these people having access to the database as practitioners. Their role here is as a secondary source of some of the basic identifying data.
Similarly, paragraph (c) permits the Commissioners of the Inland Revenue to disclose information to the databases. We expect that in practice the use of that provision will be limited to a supply of names and addresses and information from a child's benefit database to meet that type of request. Without that provision the Inland Revenue would not be able to meet those requests, but I can reassure noble Lords that this provision would not allow for information from databases to be disclosed to the Inland Revenue. We are not talking about Inland Revenue staff having access to the databases of practitioners or being able to comment on the existence of any cause for concern in relation to a child.
Both subsections (4A) and (4B) also provide flexibility, in paragraphs (f) and (e) respectively, for the Secretary of State and the Assembly to specify other people or bodies. As I have already said that this package of amendments is designed to capture new bodies; for example, there was a time when youth offending teams did not exist and quite rightly noble Lords have wanted to have them, in the best sense of the word, captured in the Bill, or the tendency of some public bodies—perhaps the health service is a good example—to change names or to change the way in which they are structured. Again, these provisions can be changed only through the affirmative resolution procedure or in the case of the Assembly, through its own legislative procedures.
New subsection (4C) would give the Secretary of State and the Assembly power to disclose information to the database. If we need to, we shall be able to make use of existing records held by government in ensuring that we have complete and correct information on the child's records.
I turn to Amendments Nos. 111 and 130, 121 and 140 and 122 and 141 which relate to conditions of access. Amendments Nos. 111 and 130 address a specific point made by the Delegated Powers and Regulatory Reform Committee that conditions of access should be contained in regulations, not directions. They insert the reference to conditions of access in subsection (4) which covers regulations. Amendments Nos. 121, 122, 140 and 141 make the consequential changes in subsection (9) which covers guidance and directions.
Amendments Nos. 119 and 138 address concerns raised by the Delegated Powers and Regulatory Reform Committee that the current sub-delegation provision at subsection (6) is too widely drawn. These amendments provide that decisions about permitting or requiring disclosure of information cannot be sub-delegated as the current drafting permits, but that only decisions about granting access to individuals may be sub-delegated. These amendments, therefore, restrict
578
the provision in subsection (6) to subsection (4)(d) only. As I said in Committee, we need to retain the power to sub-delegate decisions about individual access to databases because regulations cannot specify each individual practitioner or agency that can have access to the database.
Amendments Nos. 120 and 139 cover the common law duty of confidentiality. These amendments fulfil the last of the commitments made in Committee to introduce amendments on Report. They delete the two references to "must" in subsection (7) so that the regulations made under this subsection will not be able to require practitioners to do anything. If a practitioner has a statutory duty to disclose information this would constitute a defence to breach of confidentiality. The "musts" are therefore unnecessary.
This amendment also restricts the matters to which exemption from confidentiality applies. It may apply only to decisions by those bodies which are permitted to disclose information on to the database. It may apply only to specifically relevant aspects of regulation under this clause, whereas the previous wording encompassed all regulations under this clause. Amendments Nos. 123 and 142 concern crosschecking information between databases. These amendments, under subsection (9), respond to an amendment raised in Committee by the noble Earl, Lord Howe, about the importance of cross-checking data between databases. I said that I was prepared to consider including in the Bill guidance and direction that may relate to this point in particular. We regard the links between databases as crucial, as noble Lords will know. But I hope this amendment will satisfy noble Lords on our commitment to accuracy, on which we will probably hear more in connection with Amendments Nos. 115 and 132.
With apologies for galloping through this, I hope that I have covered the commitments made either to the Delegatory Regulatory Powers Committee or to the House about putting things very clearly to your Lordships, and I commend this package of amendments. I beg to move.
Baroness Barkermoved, as an amendment to Amendment No. 107, Amendment No. 107A:
Line 9, after "or" insert "any parent or"
The noble Baroness said: My Lords, I speak to Amendments Nos. 107A, 108A, 110A, 110B, 111ZA, 113A, 118A and those other amendments in this group to which my name is attached but will stand in the name of the noble Earl, Lord Howe.
I thank the Minister for that full and speedy introduction to the Government's amendments, many of which are welcome. But just as she prefaced her remarks with an opening statement, so too must I. It is important for me to say that the Government have it fundamentally the wrong way around. It is for Parliament to determine what the scope of a measure should be and then for there to be consultation, not the reverse. Therefore, it is only fair to the Minister to say now that, while I understand and appreciate the

579
constructive way in which she has dealt with many of the concerns we have raised from these Benches, as well as the noble Earl, Lord Howe, there is a fundamental difference here which her speech did not sufficiently allay for me.
Simply put, it has been extremely helpful to establish in some detail those matters of fact which will be held upon a database. I do not think there is any noble Lord in the House who would have any problem at all with matters of fact being more easily and electronically accessible to colleagues working in the area of looking after children. However, once a database goes beyond the point of registration of objective fact—for we on these Benches that means flags of concern, because those are immediately subjective matters—then the nature of the regulation and operation of the database has to change and has to become altogether far more detailed. Speaking for myself and my colleagues on these Benches, I have to say that flags of concern—the transmission of subjective data by this means—are unacceptable. While I therefore welcome some of the elucidations she has given about points of fact, that remains a concern. The promise of consultation on that matter is insufficient for me. Therefore, many of the amendments which stand in my name—although I can happily tell noble Lords who wish to be elsewhere that they will not be voted on tonight—remain, and I will retain the right to return to them at a future stage.
Having said that we are opposed to flags of concern, it will not have escaped the Minister's notice that many of the amendments that stand in our names are designed to deal with the operation of them. I suppose it is not inconsistent to object to something while at the same time trying to limit its effect.
The purposes of our amendments are as follows. Amendment No. 107A is to insert "parents". It stays consistent with the Children Act 1989, which requires local authorities to inform and consult with parents, not just parents with parental responsibility, when making decisions about a child. That is consistent with the Government's view, which has been put forward on may occasions, that parents, not just parents with parental responsibility, should be involved and take responsibility for their children. In addition, many children spend a lot of time with a parent who is not the parent who has parental responsibility. In regulations, this duty could be dealt with by a wording such as "as far as is reasonably practical".
Amendment No. 108A leads us to a very important point. The noble Baroness, Lady Ashton, has consistently talked about "cause for concern" throughout discussion of this Bill. The term "cause for concern" is not recognised in current social care work with children, or in any existing childcare legislation. Nor is it defined in the Bill. It will not address a key problem, that of different professionals having different views and different thresholds of understanding of the term, and the action that they are then supposed to take.
Therefore, we have sought to insert two recognisable, existing phrases from childcare legislation into the Bill: children who are "in need", and children who are "at risk of harm". Those are both linked to concepts widely
580
understood within the field of childcare. They exist in Section 17 and Section 47 of the Children Act. They also form a basis upon which childcare professionals know the threshold of activities that they are then supposed to follow. We have said throughout this Bill that registering a "cause for concern" on a database will not necessarily help any child, because it does not link to any action. Equally, we see that it could very easily be the case that a professional who becomes known for consistently flagging up every single little matter will eventually have his concerns ignored. That is why it is important to be consistent and to work with existing, understood terminology.
Amendment No. 110A recognises that in the modern world of social services, lots of services are contracted out to agency staff. It is important that it should be clear that agency staff are under the same duties as those employed directly by any of the bodies listed in the amendments.
Amendment No. 111ZA talks about denying access to the database. It is entirely reasonable that, should these databases go ahead and contain not just sensitive or subjective data, but factual data which is very powerful in the hands of certain people, there should be limitations to them. Take, for example, a simple matter of somebody's address. The address of a child can be a very important piece of information, particularly to those who may wish to do that child harm, or harm his family. Therefore, we believe there should be a power in the Bill to have set out in regulations either categories of people who should not be allowed access to databases or circumstances in which people should not be allowed access to databases.
I noted what the noble Baroness, Lady Ashton, said about the inclusion of the Commissioner of the Inland Revenue in her amendment and I understand exactly what she said about disclosure of information. I have to say that childcare professionals who looked at this had an instant reaction, which was "Is this the Proceeds of Crime Act?", a piece of legislation which I understand from those working in the field, was meant to catch rather big, gangster criminals, but was so badly worded that it is reaching out across many areas of life and netting people who are perhaps guilty of minor benefit fraud. Therefore, there was concern about whether the provision was intended to do that. If it is, perhaps the noble Baroness will say so; if not, perhaps she will make that clear.
I recognise the concessions that the noble Baroness has set out. I agree wholeheartedly with the purport of the amendments that stand in the name of the noble Earl, Lord Howe, concerning paragraphs (f) (g) and (h) being so widely drawn—notwithstanding the explanations of the noble Baroness. As drafted, they are unacceptably wide. I understand that the noble Baroness has come some way to meet some of our concerns. I must say that she has not come far enough. I beg to move.
Earl HoweMy Lords, let me begin by acknowledging straightaway that the amendments take us forward quite considerably. I am grateful to the

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Minister for following up some of the suggestions that I and others advanced in Committee and including a great deal more detail in the Bill. I shall now speak to the amendments in the group to which my name is attached. However, despite the government amendment, I am not sure that we are quite there yet.
The intention of Amendment No. 107 is clearly to narrow the information that will be permitted on a database, so that we get much closer to what the Minister has helpfully described as an address book, pure and simple. However, the main trouble is situated in paragraph (h), which states:
"information of such other description as the Secretary of State may by regulations specify".
That takes us right back to the concerns that many of us had about Clause 8(5)(a). The wording is so general that it could be used to allow all kinds of case-specific information to appear on databases, which is of course the very opposite of what most of us, including the Minister, believe to be acceptable and appropriate. If what is meant here by "information" is the name and contact details of some other organisation with which a child is in some way associated, I would have less trouble with it, but, as it stands, the wording will not do. I am glad that the Minister recognised that concern.
Working backwards through the government amendment, I am also not at all happy about paragraph (g). When a number of us attended the useful presentation given by the trailblazers a couple of weeks ago, one of the local authorities that came told us that it was using a system of flags, but that those flags were not, strictly speaking, flags of concern. They were flags denoting services being delivered to meet an assessed need. That was very interesting, because it gets us away from thinking about those flags as devices solely connected with child protection. I have a problem with the expression "flags of concern" for exactly that reason. If the Minister can come up with an alternative term at Third Reading, that might well be an improvement.
That leads me to wonder whether we need paragraph (g) at all. Several trailblazers have decided not to include flags of any description on their databases. Yet they appear to be perfectly satisfied with the results so far. One must ask what added value those flags really have. The point at which a database ceases to be an address book—this is exactly the point made by the noble Baroness, Lady Barker—is when we start introducing flags of concern.
One of the trailblazers said that it feared that the ability to register a concern on a database, far from enhancing a child's wellbeing, might actually be counter-productive, if it were to lead to professionals thinking that they had done their duty by a child simply by creating a flag on a database and doing nothing else. Of course, many of us made that point in Committee. We must avoid flags being seen as a substitute for action. I know that the Minister is conscious of that concern. However, it is difficult to know how we will avoid that. Flags denoting serious
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concerns may well be crowded out by flags denoting trivial matters—again, potentially making matters
worse rather than better for very vulnerable children.
I very much welcome the Government's intention to conduct formal consultation on that, but there is a simple choice before us: either we have no flags of concern at all or, if we do, we need to define a threshold that makes it clear to professionals what circumstances demand one. We read in the amendment the words,
"any cause for concern".
Left unqualified, that phrase could justify exactly the sort of undesirable profusion of flags that I described. So we must hear from the Minister exactly why she believes that that we need paragraph (g) at all and, if we do, whether the phrase,
"any cause for concern",
could be altered to something better.
I move back a step to paragraph (f). My concern here is that even the name and contact details of a person providing services to a child can be sufficient to tell a story. The most extreme examples are of course the name of a sexually transmitted infection specialist or a specialist at a mental health clinic. I appreciate why the Government want to include that paragraph, but if we were to ask a young teenaged girl whether she minded the police knowing that she had visited a family planning clinic, I think that in many cases the answer would be that that was none of their business. Even something less emotive, such as treatment at an obesity clinic, could be a matter that a child would want to keep confidential to his or her GP.
I suggest that a way might be found to make the inclusion of second-tier professionals on a database dependent on consent. In the trailblazers presentation, we heard one authority talk about above and below the line information. I do not see why we should not envisage paragraphs (a) to (e) as constituting first-tier information— above the line and not dependent on consent—and paragraph (f) as information for which consent needs to be sought.
The Minister can tell me if I am wrong, but my impression is that in most circumstances, second-tier information is unlikely to be of critical importance where children are thought to be at risk. It is usually information that it is merely desirable for professionals to have to gain a full picture of a child's situation. Many children, or their parents, will have no problem at all about the name and contact details of a professional person associated with them appearing on the database, but there could be circumstances in which they had deep reservations about that. We need to address that issue.
Turning briefly to Amendment No. 112, I am concerned about the inclusion of proposed new subsections (4A)(f) and (4B)(e). It is positive that the clause will now specify who must and who may disclose information to a database, but then to include a provision potentially opening up the obligation or power to all and sundry tends to negate the previous tightening up of the wording. I noted what the Minister had to say about the Inland Revenue provision in the amendment. I should have tabled an

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amendment myself to draw attention to that. It raises all kinds of issues about what information the Inland Revenue is empowered to reveal to third parties. When would it be permissible for the Revenue to raise a flag of concern? I understood the Minister to say that that was not the intention, but can she reassure me that the amendment would prohibit that? If someone from a child's school or social services were to ring up the Inland Revenue, what do the current rules allow it to disclose? That question is unrelated to the databases, but it is germane. Perhaps the Minister could comment on this.
I have said rather a lot but I have tried to cover the ground as concisely and briefly as I can. I look forward to the Minister's response.
7.30 p.m.
Baroness Howarth of BrecklandMy Lords, perhaps I may briefly add one or two points. The noble Earl, Lord Howe, has made a number of points that I would have made otherwise. I will reinforce them and ask one or two questions for the record.
First, I will deal with flags of concern and the consultation. Like the noble Earl, I have real concerns that this might confuse child protection registers with those registers that look at service delivery. I hope that those two things are kept well and truly separated in any consultation and that we continue to ensure that when there is a real concern that a child may be in danger of harm the proper child protection procedures move into place.
I have a similar anxiety that if people think this has been put on some other sort of register they may absolve themselves of the duty. Having been a practising social worker for a long time, I know how easy it is do that when people are under huge pressure. I hope that any consultation has that absolutely clear and that we continue with it.
I asked the Minister about my second point privately. There has been criticism in the past which I have heard on the Floor of this House that a Bill has many amendments because the Government did not get it right at the beginning. I take a different view. It is a reflection of people listening and coming back with amendments and the Minister has listened particularly hard. I that hope she will continue to listen to some of these matters this afternoon.
I ask that in the long term we do not end up with mandatory reporting. This is a similar point to the one made by the noble Earl, Lord Howe: people can add or subtract to the list. For years Childline has talked to children and has been able to give information which has led to them coming forward with serious problems because there is no mandatory reporting. Should there be, I am sure that Childline would lose that capacity. The Minister has reassured me about that privately, but I would like to make the point on the Floor of the House.
I am very sympathetic to Amendment No. 107A and the inclusion of parents generally and I support the noble Baroness, Lady Barker, in that. It could be difficult if we found ourselves with just one parent.
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Having dealt with very complicated divorces in civil proceedings, I hope that we can ensure that that matter is properly covered.
I do not understand the point about the Inland Revenue so further elucidation would be welcome. This may be due to my limitations. I would be grateful if the Minister could explain how and why they are going to have access.
I am also extraordinarily concerned about confidentially. As an adult, I do not want all and sundry to be able to see my medical records, even though there is not a lot in them. I feel that my life in my own and the information about myself is mine to be contained. I have talked to many children and they have the same view. We need to take extreme care that if some lass has been to the Brook Street clinic and does not want it on her database, it should not get onto it. I look for reassurance on that matter.
Those are all the points that I wished to make. I am extraordinarily grateful that we are going to have a consultation on "flags of concern". It is a difficult phrase and I hope we find another one to describe it before we go out to consultation.
The Countess of MarMy Lords, I rise to support all the amendments in the names of the noble Earl, Lord Howe, and the noble Baronesses, Lady Byford and Lady Barker. The Minister knows of my concerns on databases.
I have refrained from taking part in the proceedings since Second Reading because my main concerns have been about Clause 8 and I know that there is nobody more able to deal with these matters than the noble Earl, Lord Northesk. His expertise is of a very special nature. Unfortunately he is unable to be here today, but he has left me well briefed. I hope I can do him justice.
I am aware that the Minister has listened to the concerns and proposals of noble Lords in a constructive way, and I thank her. Some concerns still remain in respect of this clause, not least the issues raised by these amendments.
The Minister has gone to considerable lengths in her defence of the Government's proposition in Clause 8 to persuade us that the data to be captured within the proposed database is minimalist. In various ways and at various times, she has insisted that it is categorically not the Government's intention that case data should be in any way involved. In Committee she stated:
"This database contains nothing that would constitute opinion about any child; it is purely detail about the matters I have already indicated: name, address, date of birth, educational setting, name of person with daily responsibility for the child and GP services. All the other information would concern which practitioners are involved with the child.
Think of it as the yellow pages of the telephone directory. There will be no consequential access into another database".—[Official Report, 24/5/04; col. 1097.]
Moreover, in her letter in response to concerns raised by the Delegated Powers Committee, she states:
"The intention is to make it clear that no case information will be recorded on the databases, only the contact details of practitioners providing specialist services, as defined in regulations, to children will be recorded".

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The point of the issue here is why are the Government seeking the reserve powers embodied in paragraphs (f) to (h) which could have the effect of guaranteeing that case data would be implicit in the record entry?
The Minister has stated her and the Government's intention plainly and unequivocally: no case data of any kind. I am therefore baffled by paragraph (g). It is difficult to understand the Government's logic in seeking this particular provision. As other noble Lords have said, presumably it is to permit databases to fly flags of concern. But as is evident from the debates on this matter in Committee, of themselves such flags constitute case data. To that extent, paragraph (g) is antipathetic to their stated aim.
As to paragraphs (f) and (h), noble Lords will recall that reference was made to "function creep". During the passage of the Bill, it has been slightly amusing to observe the way in which the noble Baroness has sought to distance Clause 8 from RYOGENS. In all sorts of ways, in so far as this is an accurate representation of her view, I am not surprised.
Be that as it may, this particular wheeze of the Deputy Prime Minister will sit on the margins of any of the databases emanating from Clause 8 if only because, as I understand it, it is intended that the youth justice system should form part of the "telephone directory". Over time, paragraphs (f) and (h) would permit Clause 8 databases to metamorphose into RYOGENS-type models—perhaps something even more insidious—with relatively little opportunity for proper parliamentary scrutiny. To my mind, this is wholly unacceptable.
I do not say that this is the intention of either the noble Baroness or the Department for Education and Skills. I take at face value the stated desire for flexibility but I do not believe that we should take undue risks in such a sensitive area as this. To grant to the Secretary of State powers of such "broad delegation" —to use the noble Baroness's own words—is, I believe inappropriate.
Baroness Ashton of UphollandMy Lords, I am grateful for the welcome that noble Lords have given to the package of government amendments. I hope that in the course of my remarks I can deal with a number of the reassurances for which noble Lords have looked.
I would like to reiterate a little of what I was saying earlier about the consultation as that may assist your Lordships in looking at these amendments. I have indicated that we want to look not only at how flags of concern might work, but also the phraseology and terminology around them. As noble Lords have indicated, the very nature of those words makes some noble Lords and other colleagues unsure and uncertain.
It is important to think of the role of the database. It is a telephone directory as I described, and some of the trailblazers have treated it precisely as that. As the noble Earl indicated, some of them have an above-the-line and below-the-line approach to sensitive issues.
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That is important, too. We want to explore that more fully because of the issues that have been raised around sensitive people by the noble Baronesses, Lady Howarth and Lady Barker.
The Government are committed to saying that the database needs to be of use to practitioners in ways above and beyond the specific details that I have indicated. We have called that "flags of concern". Let me unpack that more for noble Lords. This is about ways in which practitioners will be able to do two things. The first applies where a number of different agencies involved with a child; for example, a child who has multiple disabilities and is in receipt of different services. If a particular practitioner is working with a child, he needs to be able to have that information available quickly from looking at the list. In other words, the practitioner can say, "Please ring me, because I am dealing with this child".
The other issue causes greater concern, hence our desire to consult on it more fully with practitioners. It would happen when a practitioner says, "I am concerned about this child and we need to think more fully about the situation". The noble Earl gave the example of a child attending an obesity clinic. It may well be that three things are happening in the child's life. The child is obese; there are some issues about the child being bullied at school as a consequence, which is not unknown; and the child is depressed. What we are looking for—and I hope that the consultation will enlighten us—is how to piece that information together in a way that means the GP or the school can support the child more effectively. It is not about pillorying children, it is about supporting them.
I recognise the difficulty that noble Lords have with this, and I hope that they will welcome the consultation. I hope that they will also welcome what I have said about the results of the consultation and the fact that nothing further can be done without affirmative regulations. That is an important point.
Let me say to the noble Baroness, Lady Howarth, that voluntary sectors are permitted, not required, in this context. We will be consulting on the sensitive services, as the noble Baroness would expect. There is no mandatory reporting, which I think was her specific concern.
Let me deal very briefly with the amendments. I see what noble Lords are seeking to do in Amendment No. 107A, but I believe that the wording in Amendment No. 107 encompasses all those who need to be covered to make sure that there are comprehensive contact details. I am advised that the only additional scope that the noble Baroness's amendment would afford would be to enable the inclusion of contact details for the natural father who is not on the child's birth certificate, not married to the mother at the time of the birth, has not subsequently acquired any parental responsibility, and does not have care of the child from time to time or at any time. Such details could be included only if his paternity were proven. Everybody else is included in the way in which we have defined this, because it comes under the provisions of the Children Act and parental

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responsibility. I hope that that explanation clarifies the matter. It is, in a sense, why I believe that the amendment is unnecessary.
Amendment No. 108 would delete practitioner involvement and the flexibility to add to the list. One effect would be that databases would not be able to hold practitioner details. I hope that noble Lords recognise that that is an important part of what we are trying to do. As I have already said, I recognise the concerns about sensitive services, hence the consultation.
Amendments Nos. 108 and 108A would record the information that a child is at risk of serious harm. Amendment No. 118A would delete the provision to record concerns. This would mean that practitioners could record details that they were concerned about only when the concern had reached the point of a risk of harm, or actual serious harm being done to the child. We do not want to constrain in this way because this is a preventive measure. As I have already indicated, we want to address the detail of this through the consultation. But we want practitioners to communicate long before a crisis point is reached. We will look to consult formally on this, and we hope that that will enable noble Lords to feel easier about it. But we believe that relying on what is in Sections 17 and 47 puts the barrier too high. It does not enable people to say, "I am providing a lot of physiotherapy to this child at the moment. You might want to talk to me", or "I am involved with this child in other ways". It is very important that as we consult and look at what we call this, we ensure that we make a provision of a preventative nature by enabling practitioners to talk to each other. To turn it the other way round, if we had no details or information, what would we do if a child did not receive that bringing together of different services that I just described with regard to the noble Earl's example of a child attending a clinic for obesity?
Finally, on Amendment No. 108, 1 hope that the noble Countess, Lady Mar, is reassured at my undertaking that we will be looking to introduce an amendment at Third Reading. Noble Lords have indicated a specific point about case data, and it might be better made in that way.
There is nothing about gender in the list, and it might be appropriate to include it at some point. This is about information which might be of relevance but which is not already included.
Amendments Nos. 110A and 110B would widen the list of persons or bodies required or permitted to disclose information to the database. Amendment No. 112 clearly sets out on the face of the Bill the statutory and other bodies and persons required or permitted to disclose information. I hope that noble Lords feel that we have covered the list of those who should be involved appropriately by reference back, in the way that I have indicated. I take the point about sensitive services and about being above or below the line information.
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7.45 p.m.
Amendments Nos. 130, 135, 140 and 136 would remove the flexibility to add to the list of agencies or bodies providing information. Any change to the list would have to be made with the approval of both Houses of Parliament through the affirmative resolution procedure and through the Assembly's legislative procedures. I have already said that youth offending teams did not exist some while ago, and neither did primary care trusts. We are looking to capture new ways of organisations working, or those bodies which might appropriately contribute positively.
Amendment No. 113A concerns the Inland Revenue. Under proposed new subsection (4B) (c) it is a one way-communication. It has nothing whatever to do with the Proceeds of Crime Act 2002. I did not even have any knowledge of that until the noble Baroness, Lady Barker, raised it. It is only to allow the Inland Revenue to provide information of what is already prescribed on the database, and nothing else. There is no two-way street on that.
Amendment No. 111ZA deals with the very important aspect of those who would be denied access to the database. Obviously, appropriate practitioners must have access. Obviously, there must be stringent minimum requirements, Criminal Records Bureau clearance and relevant practitioner level protocol. They must have undertaken training on the safe and secure use of the system, including compliance with the Data Protection Act, the Human Rights Act and, where relevant, the Caldecott principles. When we consider the formulation of these regulations, we will take into account the points that noble Lords have raised today in considering where access may and may not be given. I hope that that will provide some reassurance to the noble Baroness, Lady Barker. I am happy to discuss with her what that means in practice.
I hope that on that basis, the noble Baroness will feel able to withdraw the amendment.
Baroness BarkerMy Lords, I realise that we are on Third Reading and are under immense pressure, but there are a very few points I want to make. First, the noble Baroness talked about us welcoming the Government's package of proposals. No, we do not believe it is a package—we welcome certain aspects of the proposals and not others.
Many of the proposals that we put forward came from the meeting with the trailblazers. Two of them said that they do not want flags of concern on their systems. The Government, who have, throughout our discussions, exhorted us to listen to what these practitioners have said, should do the same.
Once the phrase "cause for concern" is on the face of the Bill, the Government can consult all they like—the phrase will be in the Bill. I do not think that the noble Baroness has yet made a strong enough case for moving away from existing recognised childcare terminology. I also do not accept her argument that by using that terminology, we leave matters until it is too late. From talking to trailblazers, it was clear that the

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very existence of a database which included the names of other practitioners was a basis upon which much preventive work could begin much more speedily. I urge the noble Baroness to think about that in light of what the noble Earl said about being above or below the line information.
The noble Baroness also talked about the affirmative resolution procedure. I should like to know where that is—I do not see an amendment to Clause 8. Is it elsewhere in the Bill? I know that she has conceded the point, but this is not the Bill.
I remain of the view that while I accept some of the arguments and reject some of the details, we return to the fundamental principles. The minute the database moves away from anything factual, the restrictions under which it has to operate have to be a great deal tougher than those for a telephone book. I do not believe that the noble Baroness has mentioned all that we want, and I do not believe that consultation on that basis will be adequate. We will return to these matters, but for the moment, I beg leave to withdraw the amendment.
Amendment No. 107A, as an amendment to Amendment No. 107, by leave, withdrawn.
[Amendments Nos. 108 and 108A, as amendments to Amendment No. 107, not moved.]
Baroness Barkermoved, as an amendment to Amendment No. 107, Amendment No. 108B:
Line 23, at end insert—
"(2C) The manner in which consent to inclusion of information (as defined in subsections (2A) and (2B) of a child, a parent or other person with parental responsibility, may be over-ridden."
The noble Baroness said: My Lords, I am glad to have the opportunity to move an amendment to government Amendment No. 107, but one which is of a different nature from those in the previous grouping. In moving the amendment, I shall speak also to Amendments Nos. 110C, 118B, 119A and 120A. They deal with different aspects of the operation of the information database which need briefly to be raised.
Amendment No. 108B would establish the circumstances or the manner in which consent to inclusion of information, as defined in subsections (2A) and (2B), can be overridden. One factor which clearly emerged from the trailblazers meeting was that all of those trailblazers had gone down the route of obtaining a priori consent from children and families. They viewed that as being a key part of the success of what they were doing.
I understand that it will be highly unusual for a database of limited factual information to be overridden. However, there are some circumstances in which it would not be unreasonable for a parent to object; for example, a mother who has been at risk of domestic violence may not wish basic details such as school and place of residence to be released. Equally, to a childcare professional, the refusal to give consent to basic information being put forward may also be a
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signal that there are problems to be looked at. However, if the Government are going to override parental consent, they should say so.
Similarly, Amendment No. 110C would allow families to have an appeal mechanism against disclosure. That appeal mechanism would operate after disclosure has been made. It is rare—and trailblazers confirmed it—for people to use such a mechanism, but they should have the power to do so. As long as we are stuck with the reality of flags of concern, matters such as this become of much greater importance.
Amendment No. 118B is consistent with the principles of working in partnership. Co-operation and parental consent make for more effective plans for children's well-being and put the Bill in the right place in relation to Articles 6 and 8 of the European Convention on Human Rights. The amendment would require professionals to be accountable for decisions that they make to register concerns on the database.
Amendment No. 119A is required to avoid any doubt that the establishment and operation of databases should be in conformity with the Data Protection Act 1998. That is a matter which has been of consistent concern to us. So far, the Government have failed to convince us why these matters should circumvent that Act.
Finally, Amendment No. 120A underlines that information databases are a very serious business with serious consequences for the lives of children. It would create an offence of knowingly supplying information which is wrong. That is important. Childcare professionals who enter information in good faith should not be subject to prosecution, but those who supply false information with malicious intent, leading to serious consequences, should be subject to prosecution. I beg to move.
Earl HoweMy Lords, I shall speak briefly to my own Amendments Nos. 111A, 111B, 111C and the Welsh equivalents. It is important for there to be a set of clear ground rules, applicable everywhere, to govern the length of time that a child's records should legally be retained on a database. When someone ceases to fall within the ambit of Clauses 6 and 7, their record should be deleted. If we do not make a rule of that kind, we potentially have a system that will usher in compulsory identity cards by the back door. We are not legislating for that. At the same time, we need to ensure that records are not deleted prematurely; for example, when it is thought that a child has moved out of an area. There needs to be a process which ensures that if a child moves from Hull to Brighton, the school in Brighton can, if necessary, find out which social worker in Hull was assigned to the child and speak to that person. The same point could obviously apply across the board. Historic information can be as important as current information, but when I look at government Amendment No. 107, it rather seems as if only current information is to be allowed for. On the other hand, again, some historic information should

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be deleted when it is of no relevance, especially flags of concern. I should be glad if the Minister could comment on those points.
That brings me on to Amendments Nos. 111 B and 111C. If someone becomes aware that information about him has been included on a database—I am talking partly about "below the line" information, perhaps of a sensitive nature—he should have the right to appeal formally against that. Obviously, if second-tier information is dependent on consent, that problem is less likely to arise, but it could arise in relation to a flag of concern. An out-of-date flag of concern should be removed. If there is a disagreement about what should be classified as "out of date" and therefore, in terms of someone's current situation, inaccurate, there should be a formal process by which the matter could be determined. The Data Protection Act 1998 allows only very limited rights to comment on something that is not accurate. We need to look further than just a right to comment. There needs to be clear process under which the issue is considered in a formal way.
Amendments Nos. 111 B and 111C go together, because there should be clear rules about the legal obligations of professionals and the obligations of those operating the databases to make sure that inaccurate or out-of-date information is corrected. The Minister has spoken to a very helpful amendment, Amendment No. 123, which is about cross-checking, but it does not cover procedures that are designed to ensure that what goes on to the database in the first instance is accurate and who carries the can if it is not. Nor does it cover the need to ensure that information about a child is kept up to date, particularly as regards the people listed in subsection (4B) of Amendment No. 112. Those are the bodies or individuals who have only a power to disclose information rather than a duty to do so and who may not view the removal of out of date or inaccurate information as a priority when in reality it is an important obligation.
8 p.m.
Nor does the Bill or the government amendment cover the rules that should determine when a flag of concern ceases to be an accurate indicator of a child's situation. People need to know that they have an obligation to remove a flag of concern when it is no longer applicable. I hope that those were comprehensible comments and I look forward to the Minister's response.
Baroness Ashton of UphollandMy Lords, the noble Earl is always comprehensible. The group of amendments rightly seeks that the database operates fairly in the way that information is handled. We are determined that that should be the case and I am grateful for the comments raised. I shall seek to address each of the amendments as best as I can.
Amendment No. 108A sets out that the regulations may set out the situations and conditions for which the lack of consent from children, parents and others may be overridden and the information included on the database in the absence of consent. We have been clear
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that we believe that the value of the database is that it covers all children. There is a risk that some children who might particularly benefit from early concerted intervention to address problems might be among those whose parents might elect not to participate in an optional database.
The Data Protection Act 1998 regulates the situation in which data can be processed lawfully. That would include data on databases established under Clause 8. It provides the conditions for the processing of data where there has been no consent. We do not want to replicate the Data Protection Act or to cut across it in any way.
However, we intend to issue guidance on the circumstances in which information can and should be shared. I agree with the noble Baroness, Lady Barker, that that is important but this is a matter for statutory guidance rather than regulation. It is a matter where good practice relies heavily on professional judgment and interpretation, which cannot be properly covered in regulations.
We will also be issuing guidance on good practice in informing people about the purpose and operation of databases in any wider role out of databases provided under this clause. We intend that parents and young people should be informed that databases are being set up, how they will work and in broad terms what information will be included and which types of professionals will have access to them.
Good practice for practitioners will include telling children and parents that practitioners may use the database to record details of involvement or concern and for making contact with other practitioners. As I made clear in Committee, the database will operate under the subject access provisions of the Data Protection Act and parents and children will enjoy existing rights to see what information is held.
In many of the local authority areas that are piloting information sharing databases, the trailblazers, processing notices have been issued to local households explaining the new arrangements. As noble Lords have indicated, those who attended the meeting will probably recall that few parents have even questioned their child being included; and after further information most of them consented.
The trailblazers were clear that a national system should not have opt-outs for fears that some of those who would not then have records would be among the most vulnerable.
Baroness BarkerMy Lords, will the noble Baroness acknowledge that at least two of those trailblazers were not using flags of concern?
Baroness Ashton of UphollandMy Lords, when I brought the trailblazers to meet noble Lords I took a representative sample. They said what they wished. Other trailblazers are going forward. Hence what I said: this is a sensitive and difficult area, but the consultation, which I shall ensure that noble Lords see, will be about how we make sure that the Government's

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intention to use the database to enable practitioners both to talk to each other and to alert each other when they have a concern is carried out properly.
I know that the noble Baroness takes a different view, but if she looks at it from my perspective she will see that what is important is that the trailblazers take differing views. They are looking for different ways of approaching the matter. I was clear with the noble Baroness and other noble Lords that we wanted differing views to be put forward in the meeting and I am glad that they were.
Amendments Nos. 111A and 132 would provide for regulations about the length of time that information might be retained, as the noble Earl said. That is an important and difficult issue. We want information to be retained for as long as it makes sense in that context. I am happy to say that I understand what the noble Earl is seeking to do and undertake to table a government amendment at Third Reading to enable national standards to be set down in regulations, which will address his concern at least in part.
Amendments Nos. 111C and 133 concern the accuracy of the databases. The noble Earl will know that it was thanks to his prompting that Amendments Nos. 123 and 142 were tabled. I hoped that we had done it, but clearly we have not from his point of view. I recognise the important issue about misplaced concerns that he raised. We are looking through the consultation and the trailblazers' experience to see whether a record of the fact of the concern should be retained on the system until the whole record is deleted, or whether it should be removed after a defined period of time.
Because it is more multi-agency focused, our ambition is that the chances of such misplaced concern diminishes and we are clear that we want to issue the right guidance. I am comfortable to take the matter away in the light of what I have heard this evening and consider whether we can do a little more to satisfy the noble Earl and the noble Baroness on those points, because they are important.
Amendment No. 110C provides regulations prescribing procedures of appeal. Amendments Nos. 111B and 131 provide regulations to prescribe procedures of appeal against inclusion. I understand the issues raised. The Data Protection Act sets out the rights of individuals to object to the disclosure of data. I am sure that the noble Baroness, Lady Barker, in particular, will know that we do not want to establish new provisions of appeal in relation to information on the databases. I hope that noble Lords will be reassured to some extent—although probably not as much as I would like—about our proposals on consultation.
We have the same point of view as regards inclusion of information; that the databases will operate under the subject access provisions for the Data Protection Act, and parents and children will enjoy existing rights to see what information is held and to ask for inaccuracies to be remedied.
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The particular point that the noble Baroness raised, about the addresses of children when there has been domestic violence, is an important one. Indeed, some of the trailblazers are doing some work on precisely that issue to ensure that either it is above or below the line in terms of who might look at it. We are interested to ensure that the provisions work in that regard, and we are waiting for further information on the most effective way in which to address a very important concern.
As I have said, we do not want to make an optional database. We want to ensure that all children are covered and that we intervene as appropriate when children's needs need to be met. One issue that has emerged from discussion is ensuring that people understand their rights for information under the Data Protection Act, and how they can exercise them. I shall consider that issue again to see whether there is anything more that we can do, because, although we might understand how to gather information—although I am not entirely sure that I do—there may be more that I can do that will at least go some way to allaying noble Lords' fears.
Amendment No. 118B would provide notification to parents and children whenever information relating to subsection (5) is recorded. I want to make it clear that we are not seeking to change data protection law in respect of automatic notification; nor is it our intention to regulate under the clause to create such an entitlement in relation to information sharing. If we were to put in place a requirement that a written notification had to be sent whenever a practitioner discussed with another that they had seen that the practitioner was involved with or concerned about a child, we would have a level of bureaucracy that would inhibit information sharing. We shall underline in guidance that it is good practice to seek the consent of children and parents about information sharing, but I do not want to create unnecessary burdens that would not support what we are trying to achieve.
Amendment No. 119A would remove subsection (7), which allows practitioners working in those bodies to disclose information to a database without being constrained by the common law duty of confidentiality. In debating Amendment No. 120, I outlined why the provision on common law duty of confidentiality is valuable. For example, it would make it clear to those practitioners working in voluntary organisations that they do not need to face personal liability or risks relating to their common law duty of confidentiality when deciding whether they should provide details of a child's name or address for the database or signal their involvement with the child. The amendment would delete a valuable provision; any person processing information must conform with the Data Protection Act. That does not need to be put in the Bill.
Finally, with regard to Amendment No. 120A, I stated in Committee that we share the concern about penalties for misusing the database. However, as we have also said, we do not believe that the introduction of a new criminal offence, which is what Amendment No. 120A would do, is necessary. There are already

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measures in criminal law which impose penalties for misuse of data in computer records. The Data Protection Act provides for a serious offence with a penalty of up to a maximum fine, which will be committed when personal data is unlawfully obtained or disclosed without the consent of a data controller. That is covered by existing legislation, so I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness BarkerMy Lords, I thank the Minister for her detailed and swift reply. As she would expect, she stands on one side of the line and I stand on the other. I take some comfort from some of what she has said. I am by no means satisfied by all of it, but at this stage I beg leave to withdraw the amendment.
Amendment No. 108B, as an amendment to Amendment No. 107, by leave, withdrawn.
On Question, Amendment No. 107 agreed to.
Baroness Ashton of Uphollandmoved Amendment No. 109:
Page 6, line 30, at end insert "(subject to subsection (2A))"
On Question, amendment agreed to.
Baroness Ashton of Uphollandmoved Amendment No. 110:
Page 6, line 31, leave out paragraph (b) and insert—

(aa) requiring a person or body specified in subsection
(4A) to disclose information for inclusion in the database;

(ab) permitting a person or body specified in subsection
(4B) to disclose information for inclusion in the database;"

Amendments No. 110A and 110B, as amendments to Amendment No. 110, not moved.
On Question, Amendment No. 110 agreed to. [Amendment No. 110C not moved.]
Baroness Ashton of Uphollandmoved Amendment No. 111:
Page 6, line 36, at end insert—
"( ) as to the conditions on which such access must or may be given;"
On Question, amendment agreed to.
[Amendments Nos. 111ZA to 111C not moved.]
Baroness Ashton of Uphollandmoved Amendment No. 112:
Page 6, line 39, at end insert—
"(4A) The persons and bodies referred to in subsection (4)(aa) are—

the persons and bodies specified in section 7(1);

(b) the Learning and Skills Council for England;

(c) the governing body of a maintained school in England (within the meaning of section 175 of the Education Act 2002 (c. 32));

(d) the governing body of an institution in England within the further education sector (within the meaning of that section);

(e) the proprietor of an independent school in England (within the meaning of the Education Act 1996 (c. 56));

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(f) a person or body of such other description as the Secretary of State may by regulations specify.

(4B) The persons and bodies referred to in subsection (4)(ab) are—

(a) a person registered in England for child minding or the provision of day care under Part 10A of the Children Act 1989 (c. 41);

(b) a voluntary organisation exercising functions or engaged in activities in relation to persons to whom arrangements specified in subsection (1) relate;

(c) the Commissioners of Inland Revenue;

(d) a registered social landlord;

(e) a person or body of such other description as the Secretary of State may by regulations specify.

(4C ) The Secretary of State may provide information for inclusion in a database under this section."
[Amendments Nos. 113 to 114, as amendments to Amendment No. 112, not moved.]
On Question, Amendment No. 112 agreed to.
[Amendments Nos. 115 to 117 had been re-tabled as Amendments Nos. 111A to 111C.]
The Deputy Speaker (Lord Carter)My Lords, I remind the House that if Amendment No. 118 is agreed to, I cannot call Amendments Nos. 118A and 118B on the grounds of pre-emption.
Baroness Ashton of Uphollandmoved Amendment No. 118:
Page 6, line 40, leave out subsection (5).
On Question, amendment agreed to.
[Amendments Nos. 118A and 118B not moved.]
Baroness Ashton of Uphollandmoved Amendment No. 119:
Page 7, line 1, leave out "(4)(b) to (d)" and insert "(4)(d)".
On Question, amendment agreed to.
The Deputy SpeakerMy Lords, I remind the House that if Amendment No. 119A is agreed to, I cannot call Amendment No. 120 on the grounds of pre-emption.
[Amendment No. 119A not moved.]
Baroness Ashton of Upholland moved Amendment No. 120:
Page 7, line 4, leave out from "which" to second "may" in line 5 and insert "may be done under regulations under subsection (4)(ab), (c) or (d) or (4C)".
On Question, amendment agreed to.
[Amendment No. 120A not moved.]
Baroness Ashton of Uphollandmoved Amendments Nos. 121 to 123:
Page 7, line 13, leave out paragraph (a).
Page 7, line 15, leave out "any such database" and insert "a database under this section".
Page 7, line 18, leave out from "transfer" to end of line 19 and insert "and comparison of information between databases under this section"
On Question, amendments agreed to.
Baroness Barkermoved Amendment No. 123ZA:
Page 7, line 19, at end insert—
"( ) For the first seven years following implementation of this Act, the Secretary of State shall lay before both Houses of Parliament an annual report concerning the operation of all databases under this section."
The noble Baroness said: My Lords, I hope that the noble Baroness when she replies will appreciate the novel twist within Amendments Nos. 123ZA and 142A. It is common practice when asking for a parliamentary report to be produced to this House that noble Lords on this side ask to have them in perpetuity. On this occasion we have set a very definite and tight timeline of seven years. That is for two reasons. We think that that is a sufficient length of time to make qualitative judgments about the efficacy of the scheme, which is going to cost a fair amount. That is a matter about which we have not spoken at all this evening. The matter was raised in Committee, but has never been fully addressed. None the less, in principle, one should not set up legislation that continues in perpetuity.
The other reason for seven years is that it allows the scheme to continue for at least the length of a Parliament and a bit of extra time. That is a sufficient time for a change of policy to take place. That is the reason for those two amendments.
I wish to speak very briefly to Amendment No. 125A, which I think is the nuclear option on Clause 8. We discussed many of its elements in relation to Amendment No. 107 and the amendments to that put forward by these Benches. But there is one point that remains. There has been a fair amount of discussion about the content of the database in what the noble Baroness put on the face of the Bill this evening. However, there has been far less about the operation of the database. I return to the point of principle, that the moment that this database moves away from matters of fact and into matters of opinion and subjective and false data, its operation and the need to be clear in law about its operation increase dramatically. Therefore noble Lords will see in this amendment a very detailed—I accept far too detailed—set of recommendations about the operation of any databases.
I believe that the minute we move away from the factual database and into matters of a sensitive nature, leaving wide powers in the hands of a Secretary of State—as the noble Baroness has in her revised Clause 8—is unacceptable. I give notice that if there are no more concessions from the Government between now and Third Reading about that, and particularly about the matters we talked about this evening when we outlined our concerns, then we will return to discuss the operation of these systems. I beg to move.
Earl HoweMy Lords, I should like to speak briefly to Amendments Nos. 123A and 143 standing in my name. I hope that the Minister will understand why some of us feel the need to maintain a sceptical stance on this clause, and the need for it.
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We are in a rather extraordinary situation, where the Government are enthusiastically trumpeting the virtues of databases, when the trailblazer pilots have only just got going and are certainly in no position to reach considered conclusions about the effectiveness of the systems or their cost-effectiveness. We are being asked to approve a policy without the evidence base to back it up.
The Government want the databases to contain the names of all 11 million children in the country. The vast majority of these children will not be at risk. Yet apparently we need a mammoth system like that in order to pick up those children who may be at risk and to promote the wellbeing of the rest. I need to be convinced about that. In particular I need to be convinced that an all-encompassing set of databases, with access granted to a whole host of individuals, is a concept that is human rights-compliant in the fullest sense. In other words, can the databases be justified in ECHR terms purely by reference to the improvement of well-being and the promotion of welfare, as distinct from child protection? I need the Minister's explicit assurance on that point.
If, as the Government say, the justification for an all-encompassing database is that it will facilitate early identification of problems, I think we need some real evidence that this is likely to happen. Common sense would tend to say that predicting what may happen to a child depends on the knowledge and skill of frontline workers. It does not depend on databases. If databases are seen as the conduit for better communication between frontline workers, we need to remind ourselves that in the case of Victoria Climbié there were no barriers whatever to communication, either legal or procedural. Many would say, and have said to me, that the deficit here lies not in IT systems but in the numbers of people on the ground, and the skills that they have. Something in me still says that databases are the Government's solution to the Victoria Climbié problem; in other words, they are a top-down solution. If front line workers had been asked what would most help them in doing their jobs better, I wonder whether they would have put databases at the top of their shopping list. I suspect that many would prefer to be given more people, more training and less paperwork.
It would be very helpful if the Minister could assure me that these provisions are not connected to any plans for a pan-European arrangement of linked databases. I have heard a suggestion that this might be so. The problems associated with this do not really need stating but the most obvious relate to who in the various countries would be given the right of access and how one would overcome legal disparities between member states.
Databases present us automatically with a paradox. If too many people are allowed access to a database, security of the data flies out of the window. Leaks will be unavoidable and confidentiality will be little more than a fiction. On the other hand, if too few people have access, it is useless as a tool for information sharing. We come back to the question of how much added value the databases would actually give us. Those who need to exchange information about a child

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can already do so, perfectly legally. A local authority that needs to know who a child's GP is has an easy way of finding out—it can ask the parents. The key point here is whether databases will bring with them added value of such a degree as to overcome the drawbacks that I and many others believe are inherent in them: the human rights considerations; the scope for serious concerns to be buried amidst a welter of minor ones; unauthorised leakage of information and the opportunity costs. I do not think that we can ignore these concerns and I hope that the Minister will be able to provide answers to them.
Baroness Ashton of UphollandMy Lords, I was slightly surprised that of all the things we have tried to do in the Bill the noble Earl should think that the database was the Government's solution to the Victoria Climbié case.
I agree completely with the noble Earl that there is no substitute for professional judgment and behaviour. The noble Earl might reflect on the experience of the trailblazers; namely, that in some cases it took, I believe, three days to contact the appropriate professional. We have consulted professionals and have considered all kinds of different ways of supporting front line staff. I agree with the noble Earl that it is a matter of people, training and other resources. This measure is not a substitute—it is not an "either/or" but a "both/and". It is very important to see it in that context. We believe that a universal database is justified under human rights. It enables a particular child to be correctly identified and for practitioners to have access to other practitioners' contact details.
However, we also agree that the entry of case details on such a universal basis would not be a proportionate response in the pursuit of a legitimate aim. I can state categorically that there are absolutely no plans for a pan-European database of any kind.
I turn to Amendments Nos. 123ZA and 142A which concern reporting annually to Parliament. I am not immediately attracted to the proposal although I was interested in the seven-year timescale. However, I am sympathetic to the concerns that the noble Baroness raised. I wish to reflect further on whether a statutory duty to report might be a sensible way forward. As noble Lords are aware, we are keeping open the possibility of local, national or regional level databases so we need to think about that in the context of whether a duty to report might be framed in advance of decisions on the geographical and organisational basis for the establishment and operation of databases. I hope that goes some way to meet the noble Baroness's concerns.
We were asked why we were bringing forward this measure now. I was mindful of what the noble Baroness, Lady Walmsley, said in a previous debate. We felt that this was an appropriate Bill and an appropriate moment to bring this forward. As noble Lords will know, often legislation is not the response that we put forward. Often there are other ways of supporting our practitioners and our children. This was an opportunity we did not wish to miss, and
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therefore I hope noble Lords will see the amendments I have put forward as a response to concerns that have been raised, in exactly the kind of development of government strategy that noble Lords seek.
Amendments Nos. 123A and 143, 124 and 125A put in place a general information-sharing duty on those responsible for safeguarding and promoting the welfare of children and indicate that the Children's Commissioner will provide guidance to support that duty. Amendment No. 125A removes Clause 8 and puts in place a power to share information. We have deliberately not sought to create in the Bill a general new duty to share information. There are difficulties in being too explicit about what information should be shared, as that could risk people labouring under the misapprehension that they can share that information only in the circumstances specified by legislation. We do not wish to do that.
Amendment No. 124 proposes that the information provision should apply to persons and bodies identified in Clause 7. It could therefore say to practitioners that information sharing should relate only to arrangements to safeguard and promote welfare, and not to co-operation to improve well-being as covered in Clause 6 and, of course, described in Every Child Matters. Amendment No. 124 also suggests that information sharing would relate in particular to cases where there is reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm. Again, there are difficulties of practitioners feeling they were only bound by the duty to share information in such circumstances, or worse, that they could not share information in other circumstances. Again, that illustrates why we have not gone for a general duty.
We are clear that comprehensive guidance to practitioners under Clauses 6 and 7 needs to bring clarity about the circumstances under which information may be shared to promote the welfare, safety and well-being of children under current law. Amendment No. 124 implies that the Children's Commissioner would hold responsibility for issues of guidance. I have already explained in debating earlier amendments why we believe absolutely that the responsibility for guidance on information sharing lies properly with the Government.
I turn briefly to the suggestion that guidance would be sufficient to achieve our aims and that we do not need to legislate as we are doing for the establishment and operation of databases. We need to do both. The clear message from the trailblazers is that legislation is needed to ensure that all bodies and practitioners know they can and should contribute. We could not have a position where, at every turn, those establishing databases might have to struggle to persuade key bodies that it was legal to contribute and that they should do so. We must put in place a system that covers all geographical areas with a common approach. Legislation enables us to do that. Information can cross borders and follow children, stopping them falling through the gaps.

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I have already said that I firmly believe that noble Lords are in agreement on the need for effective information sharing to improve outcomes for children, but Amendment No. 125A illustrates the pitfalls that we have been at pains to avoid. I have suggested in response to the noble Baroness, Lady Barker, that there is a serious danger of constraining the circumstances in which practitioners feel they could, may or should share information, and we must avoid doing this by design or unintentionally. The effect of the amendment would be to establish an explicit power, not a duty, for people and bodies in Clause 7 to share information, but only in circumstances where there is reasonable cause to suspect that significant harm is likely. The noble Baroness may not intend it, but it would impose a grave limitation on the sharing of information, preventing practitioners from discussing a child until they were confident that significant harm was at issue, and not just around the databases.
I have emphasised in Committee that best practice includes seeking the consent of children and families to share information, but I cannot agree that it makes sense for practitioners to have a legal obligation to send a notification whenever they discuss a child, sending copies of what has been said. We believe this would be a bureaucratic burden that would inhibit information sharing. As the noble Baroness has said, Amendment No. 125A is mainly concerned with the operation of computer systems. During the course of our debate, I asserted that the database represents a valuable tool for practitioners. Those in the amendment are limited in terms of who they cover and what data they contain. They do not bring any real advantage in improving the sharing of information to help improve outcomes for children. I believe the proposed arrangements for licensing and monitoring computer systems would be disproportionate and bureaucratic to govern systems that already exist, and to which existing legal safeguards apply. I also say that policing the operation of computer systems is not an appropriate function for the Children's Commissioner.
Our proposal set out in some detail how a database will operate. That detail will come before Parliament for decision. The system will be transparent. Public accountability is set up around how the databases are operated. The amendment appears to suggest private arrangements between the Secretary of State and the various bodies which would leave Parliament out of the process. We could not agree to that. It would impose an information regime that would be restrictive and bureaucratic rather than facilitate the sharing of information. I hope that on that basis that the noble Baroness will withdraw her amendment.
Baroness BarkerMy Lords, at this time of night I have no intention of doing anything other than withdrawing the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 123A to 125A not moved.]
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Clause 23 [Information databases: Wales]:
Baroness Ashton of Uphollandmoved Amendment No. 126:
Page 16, line 22, at end insert—
"(2A) A database under this section may only include information falling within subsection (2B) in relation to a person to whom arrangements specified in subsection (1) relate.
(2B) The information referred to in subsection (2A) is information of the following descriptions in relation to a person—

his name, address and date of birth;

(b) a number identifying him;

(c) the name and contact details of any person with parental responsibility for him (within the meaning of section 3 of the Children Act 1989 (c. 41)) or who has care of him at any time;

(d) details of any education being received by him (including the name and contact details of any educational institution attended by him);

(e) the name and contact details of any person providing primary medical services in relation to him under Part 1 of the National Health Service Act 1977 (c. 49);

(f) the name and contact details of any person providing to him services of such description as the Assembly may by regulations specify;

(g) information as to the existence of any cause for concern in relation to him;

(h) information of such other description as the Assembly may by regulations specify."

[Amendment No. 127, as an amendment to Amendment No. 126, not moved.]
On Question, amendment agreed to.
Baroness Ashton of Uphollandmoved Amendments Nos. 128 to 130:
Page 16, line 27, at end insert "(subject to subsection (2A))".
Page 16 , line 28, leave out paragraph (b) and insert—

"(aa) requiring a person or body specified in subsection (4A) to disclose information for inclusion in the database;

(ab) permitting a person or body specified in subsection (4B) to disclose information for inclusion in the database;"

Page 16, line 33, at end insert—
"( ) as to the conditions on which such access must or may be given;".
On Question, amendments agreed to.
[Amendments Nos. 131 to 133 not moved.]
Baroness Ashton of Uphollandmoved Amendment No. 134:
Page 16, line 36, at end insert—
"(4A) The persons and bodies referred to in subsection (4)(aa) are—

(a) the persons and bodies specified in section 22(1);

(b) the National Council for Education and Training for Wales;

(c) the governing body of a maintained school in Wales (within the meaning of section 175 of the Education Act 2002 (c. 32));

(d) the governing body of an institution in Wales within the further education sector (within the meaning of that section);

(e) the proprietor of an independent school in Wales (within the meaning of the Education Act 1996 (c. 56));

(f) a person or body of such other description as the Assembly may by regulations specify.

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(4B) The persons and bodies referred to in subsection (4)(ab) are—

a person registered in Wales for child minding or the provision of day care under Part 10A of the Children Act 1989 (c. 41);

(b) a voluntary organisation exercising functions or engaged in activities in relation to persons to whom arrangements specified in subsection (1) relate;

(c) the Commissioners of Inland Revenue;

(d) a registered social landlord;

(e) a person or body of such other description as the Assembly may by regulations specify.

(4C ) The Assembly and the Secretary of State may provide information for inclusion in a database under this section.

[Amendments Nos. 135 and 136, as amendments to Amendment No. 134, not moved.]
On Question, amendment agreed to.
Baroness Ashton of Uphollandmoved Amendments Nos. 137 to 142:
Page 16, line 37, leave out subsection (5).
Page 16, line 44, leave out "(4)(b) to (d)" and insert "(4)(d)""
Page 17, line 1, leave out from "which" to second "may" in line 2 and insert "may be done under regulations under subsection (4)(ab), (c) or (d) or (4C)".
Page 17, line 10, leave out paragraph (a).
Page 17, line 12, leave out "any such database" and insert "a database under this section".
Page 17, line 15, leave out from "transfer" to end of line 16 and insert "and comparison of information between databases under this section"
On Question, amendments agreed to.
[Amendments Nos. 142A and 143 not moved.]
In the Title:
[Amendment No. 144 not moved.]

Civil Contingencies Bill
8.31 p.m.
Lord GrocottMy Lords, with the leave of the House I shall comment on the timing of this debate. On behalf of everyone involved I apologise to the House that we are starting at this time. That is due to us underestimating the length of time that the Children Bill would take, which was longer than many of us anticipated. This is not a timed debate, so I cannot issue anything other than advice to the House. That advice is as follows: not counting the Front Bench contributions, if the Back Bench contributions were to last about six minutes this debate would last for three hours; if the contributions were about eight minutes the debate would take three hours and 20 minutes; and if the contributions lasted about 10 minutes the debate would last about four hours. That is the arithmetic that the House should consider.
Lord Cope of BerkeleyMy Lords, I do not believe that it is normally acceptable to start the Second Reading of a Bill at this stage in the day. However, as the Chief Whip said, at the time that we agreed to the scheduling that has led to this situation none of us
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appreciated how many Peers would wish to speak on this Second Reading, as the list was considerably shorter then, or the amount of public attention—and, hence, the amount of attention from your Lordships—that the first amendment today would receive. Along with the Chief Whip, I apologise to the House and in future we shall be more careful to avoid this type of timing happening. It is unfortunate, but we considered an hour or two ago whether we should move the Bill to another day. That would have led to inconvenience for your Lordships who had prepared themselves for today—particularly the maiden speakers. We decided not to do that, but the matter was close run.
The Minister of State, Home Office (Baroness Scotland of Asthal):My Lords, I beg to move that this Bill be now read a second time.
The aim of the Bill and accompanying non-legislative measures is to deliver a single framework for civil protection in the United Kingdom, providing a framework to meet the challenges of the 21st century. The current framework for civil emergency planning was not designed with the needs of the modern world in mind. Indeed, the Acts which the Bill seeks to replace date from the first half of the last century.
The basis for local civil protection work dates back to the Civil Defence Act of 1948. That Act was originally intended to organise the local elements of national civil defence efforts in readiness for a possible attack from the Soviet Union and is now one of the few remaining vestiges of the Cold War.
The emergency powers framework pre-dates even that. The Emergency Powers Act was enacted in 1920, following the lapse of emergency wartime legislation at the end of the First World War, and with the 1919 police strike still fresh in the minds of the Government and Parliament.
Yet the underlying rationale for both of those Acts remains. Planning for emergencies must be properly organised at the local level, and the range of organisations with a role in civil protection should be properly co-ordinated. Every comparable nation-state has provision for Government to take emergency powers in a crisis, to assist in managing national emergencies and ensure a speedy return to normality.
The problem with the existing Acts is that they were drafted for a different time and different circumstances, and they do not take account of the significant cultural, technological and constitutional changes which took place in the second half of the last century.
It is important, however, to consider why the Government believe the modernisation is necessary now. This Bill is not driven by short-term concerns—it is intended to be a framework that endures—but it is right that we reflect on the current context as a useful illustration of why civil contingency legislation should be kept up to date.
Noble Lords will be familiar with the range of emergencies stemming from climate change. Just as the climate is changing, so is economy and society. We have to cope with the demands of modern networked

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society, in which disruptions can grow quickly and in unprecedented directions. Our country is also used to the changing nature of the terrorist threat.
None of these risks is a specific justification for this Bill, which is about generic capacity rather than any urgent operational need. But they do demonstrate the importance of proper frameworks for preparing for and dealing with disruptive challenges, and the need to keep them fit for purpose.
I turn now to the process by which we developed the Bill now before us. It would be wrong to characterise the Bill before the House today as a response to September 11, important though those tragic events have proved in informing our work. In fact, the start of this process was a commitment to a review of emergency planning made by the Deputy Prime Minister in November 2000, following the serious flooding of that year.
That review was strongly focused on local emergency planning arrangements, and confirmed the overwhelming demand from civil protection professionals for this new legislation. Since that point we have been working hard with the fullest range of organisations to construct the right legislation, including the Emergency Planning Society, the Local Government Association and the Association of Chief Police Officers, as well as Liberty and Justice.
This open and consultative approach has been a consistent theme. When the Government had their proposals ready, we published them first in the form of a draft Bill in June of last year. We carried out a successful public consultation, and we submitted the draft legislation to the process of pre-legislative scrutiny. The Government invited a Joint Committee of both Houses to look at the draft Bill and work with us to refine it. The committee's report was very constructive, and I am very grateful for the time and effort contributed by the members of the committee to the work. I very much hope they will be able to bring this experience to bear on our debates.
Taken together, the public consultation and the pre-legislative scrutiny have made a real difference to the Bill. The Government have listened, and made many adjustments before introduction.
We made significant changes in response to the Joint Committee's report, accepting 38 of its 50 recommendations, including: removing political, administrative and economic stability from the definition of emergency; strengthening the triple lock, the key safeguard against the misuse of emergency powers; and removing the clause which would allow emergency regulations to enjoy the same status as primary legislation for the purposes of the Human Rights Act.
What is now before the House is a Bill which has benefited from further consultation and discussion, and commands the wide support of practitioners.
I will turn now, if I may, to the detail of the Bill itself. The starting point is a clear definition of "emergency". We considered this issue carefully. We looked at the
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definitions of emergency in the legislation we seek to replace, but we ruled them out as poorly focused and out of date.
We looked at international examples, many of which were too imprecise or reflected the unique demography and geography of the country in question. We also took the views of practitioners on the appropriate definition of "emergency". And we received powerful representations arguing against elements of the draft definition from the pre-legislative scrutiny process, with civil liberties groups also voicing concern at the breadth of the definition.
The definition in the Bill has therefore been weighed carefully and its scope narrowed so far as is prudent. On the Joint Committee's advice, we removed the words "political, administrative and economic stability" from the definition. We have met the concerns of local responders, many of whom asked for the definition in Part 1 to be caveated by reference to the definition of "emergency" in the Government's Dealing with Disaster guidance— that an emergency is a situation which requires special procedures or arrangements to be put in place.
We now have a definition which we believe to be right. The Bill defines an emergency as an event or situation which threatens serious damage to human welfare, the environment or national security. That definition follows the same form in both substantive parts of the Bill, and it is to those that I shall now turn.
The purpose of Part 1 of the Bill is to establish clear roles and responsibilities at the local level for bodies engaged in local civil protection. We start from a strong base. Within the United Kingdom, there is substantial experience of major emergencies and we have highly professional and dedicated emergency services. However, it is also important now, more than ever, to ensure that coherent strategies and systems for the harmonisation of contingency plans and procedures are in place.
The Bill identifies the range of bodies at the local level which have an interest in local civil protection. The Bill describes them as "local responders". Irrespective of the particular responsibilities of organisations and agencies which may be involved with the emergency response, they all work to common objectives at the local level, including saving and protecting life and property, maintaining critical services, safeguarding the environment and restoring normality as soon as possible.
But it is clearly important that the duties imposed should be proportionate to the role that organisations play in civil protection. That is why the Government are proposing a differential duty. Essentially, we propose to split local responders into two categories. Category 1 responders are the "core" organisations which are more likely to be closely involved in preparing for most incidents. They include the emergency services, local NHS bodies and the Health Protection Agency, local authorities, the Maritime and Coastguard Agency and the Environment Agency. They can be characterised by their central role in the co-ordination of response and the delivery of its main elements.

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Category 1 organisations are subject to more significant duties than those in category 2. They include risk assessment, business continuity planning, emergency planning, including training and exercising, and putting in place arrangements for warning and informing the public in the event of an emergency in so far as that helps to prevent, reduce, control or mitigate its effects. Responders will also be obliged to co-operate with each other through local resilience forums. That will bring the existing network of multi-agency groups on to a sounder footing, delivering improved co-ordination and communication.
Category 2 responders are "co-operating bodies". They are less likely to be involved in the heart of planning work but will be heavily involved in incidents which affect their sector. They include utilities such as water, gas, electricity and telecommunications, transport companies and infrastructure providers, and the Health and Safety Executive.
Category 2 responders will take on two activities—co-operation and information-sharing—which mirror the same obligations as those on category 1 bodies. However, it is important to note that Part 1 relies heavily on delegated powers, and that is obviously a matter that the House will want to consider. That is consistent with existing legislation and it reflects the technical and unpredictable nature of emergency planning and response. The Government have published the regulations for Part 1 of the Bill in draft. Before the regulations and guidance are published, we shall consult publicly again on their content.
Therefore, taking Part 1 as a whole, the Bill sets out a new framework for local civil protection which builds on many years of good practice and experience. It contains duties which reflect the wishes of practitioners and it sets in place structures to ensure that standards of performance are maintained.
Part 2 of the Bill essentially updates the Emergency Powers Act 1920. In the United Kingdom, emergency powers for more than 80 years have meant urgent, specific new legislation in place temporarily to deal with the most serious emergencies. The Government hold to that approach and the Bill reflects that. It is a special legislative mechanism for abnormal situations. There is still a need for a latent capacity to make new, temporary statutory provision rapidly where this is the most effective way of enabling the resolution of an emergency.
The ability to make emergency regulations is the central element of Part 2. But it departs from the existing model by improving the process by which regulations are made and by enhancing the safeguards.
As with the 1920 Act, the Bill places the Queen at the centre of the process for making temporary special legislation, but with a simpler process which removes the need for a separate royal proclamation. This is an improvement, agreed with the Palace, which reflects the need for practicable arrangements. In discharging this responsibility, the Queen would be acting on the
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advice of her Ministers—principally the Home Secretary as member of the Cabinet with responsibility for domestic security and resilience.
Under the provisions of the Bill it will be possible for the first time to use emergency powers on a regional or devolved administration basis—a common feature internationally. This will ensure any special temporary legislation will apply only in the part of the United Kingdom affected by the emergency, leaving those elsewhere unaffected. Regional response will be supported by the new role of the regional nominated co-ordinator.
The Government recognise that these are significant powers, and that they should not operate in an unfettered way. That is why the Bill contains a much more coherent, transparent and comprehensive package of safeguards than can be found in the 1920 Act. The centrepiece of this is the "triple lock", which ensures that emergency powers will be available only if three conditions are satisfied. First, it must be the case that an emergency which threatens serious damage to human welfare, the environment or security has occurred, is occurring or is about to occur—that is to say serious and requiring immediate action. Secondly, it must be necessary to make provision urgently in order to resolve the emergency as existing powers are insufficient and it is not possible to bring forward a Bill in the usual way because of the need to act urgently. Thirdly, emergency regulations must be in due proportion to the aspect or effect of the emergency they are directed at.
The Bill also replicates and enhances the express limitations from the 1920 Act. For example, the emergency powers cannot prohibit industrial action, nor can they instigate any form of military conscription. They cannot alter any aspects of criminal procedures or create any new offence other than breach of the regulations themselves.
It is also important to be clear that Part 2 of the Bill has been drawn up to operate within the current constitutional settlement on human rights. The response to any emergency is a balance between the needs of the wider community and the rights of individuals. Given that the Bill gives the Government considerable power to take action in the interests of the wider community, it has to be tempered by proper protection for individual rights. This will doubtless be a subject which we return to in the debates to come, but it is important to emphasise a number of key points. The Bill is compatible with the European Convention on Human Rights, and Ministers have made statements to that effect. Emergency regulations allowed under the Bill must be compatible with the Human Rights Act, and we amended the Bill in the other place to require a statement to that effect to be made any time emergency powers are used.
If emergency regulations were made which did not comply with the ECHR, the maker of the regulations would be committing an unlawful act. The regulations and action taken under them could be challenged by the courts.

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Emergency powers could not suspend the Human Rights Act, and we removed a draft clause that provided that emergency regulations be given the same protections as primary legislation in relation to the Human Rights Act following the report of the pre-legislative scrutiny committee. I realise that this will be a topic of some interest to noble Lords, but it is our view that emergency regulations cannot substantively amend the Human Rights Act.
The Bill also preserves the important principle of parliamentary approval of emergency regulations. The Bill sets out that emergency regulations, once made, must be laid before Parliament as soon as practicable. Parliament will then have seven days to approve them, with or without amendment, or they will fall.
This amounts to a much more comprehensive and coherent set of safeguards than exists under the current Act, and it better reflects important elements of the current constitutional settlement including devolution and the Human Rights Act. The Government believe that the balance we propose is the right one.
The Bill is necessary. I believe that we can all agree that a legislative framework for dealing with emergencies is a vital component of the statute book. In the light of recent events, it is clear that this modernisation is also timely.
The Government have worked towards the Bill in a considered way. We have pursued an open and consultative policy development process, and we have worked hard to carry parliamentary colleagues, practitioners, national representative bodies and a range of other organisations with us. This House will have a vital role to play in helping to refine our proposals further, bringing its considerable experience and knowledge to bear to ensure that the consensus we are building strikes the right balance between protecting us all from the effects of emergencies and not distorting the way in which we go about our lives.
We are in a position now to deliver the single legislative framework for a coherent response to the disruptive challenges of the future—that is our aim. I look forward to working with noble Lords to deliver the protections in every sense which the people of the United Kingdom deserve. I commend the Bill to the House.
Moved, That the Bill be now read a second time. — (Baroness Scotland of Asthal.)
8.52 p.m.
Lord McNallyMy Lords, as ever, we are grateful to the Minister for explaining the Bill in her usual lucid fashion. I shall not dwell on the matter too long, but I thought that the two Chief Whips revealed a naivety that I do not usually associate with them when they believed that they could pack two such matters into a day's business as they have done today. It is a little unfortunate that the Second Reading of so serious a Bill starts at this time. My sympathies go to the noble Lords, Lord Rosser and Lord Tunnicliffe, who in the future may well remember their maiden speeches by the fact that they went home to the dawn chorus.
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I shall press on. The late George Woodcock, when general secretary of the TUC, used to pose to his members the question: why are we here? When Members of the House of Lords are faced with a similar question, they need look no further than legislation such as this Bill before us. Yet again, a piece of legislation reaches this House amidst complaints from the other place that there has been insufficient time to consider the Bill. Mr Richard Shepherd, for example, said during Third Reading:
"The fact is that we have not had a proper discussion of the most important part of the Bill, which affects our civil and political liberties".—[Official Report, Commons, 24/5/04; col. 1406.]
He was, of course, referring to Part 2.
Those concerns were expressed by other honourable Members. It is not for me to advise the other place on how to conduct its business, but yet again the onus is placed on this House to give a piece of legislation the kind of in-depth and detailed scrutiny of which the other place appears incapable. With the legislation before us there is the added imperative voiced by my colleague Richard Allan, MP, who said:
"Our concern is the risk of abuse of these sweeping powers by a future Government, which should concern all of us as constitutional democratic politicians".
He went on to say:
"I am sure that more concerns will be raised in the House of Lords, particularly on issues to do with human rights law. There are far more expert voices than mine there. I know that many of my colleagues will want to engage with that issue and I trust that they will do an excellent job".—[Official Report, Commons, 24/5/04; cols. 1404–05.]
We will do our best from these Benches to live up to that confidence. I know that other noble Lords will do so as well.
Because we intend to scrutinise with vigour does not mean that we do not appreciate the nature of the threat, or the need to bring up to date the rather elderly laws in this area to which the Minister referred. It is remarkable that we are legislating to replace both the Civil Defence Act 1948 and the even older Emergency Powers Act 1920. Both belong to a different age in terms of technology and the potential threats we face. It is also true that the laws underpinning our fundamental freedoms have stood the test of time not just for decades, but for centuries. It is very important that they are defended and preserved.
In saying so, I do not wish to imply that the Government or individual Ministers have any intention of undermining those basic human rights and civil liberties which we have, over the centuries, written into our law. Nevertheless, it is true to say that the Home Secretary, in particular, shows an impatience with the protection—as he sees it—that our laws give, and which prevents him from—how shall I put it? —"nailing" wrongdoers. So, even at the risk that some Ministers will go to some by-election and claim that we are soft on terrorism, we will do our job and stimulate debate in areas left undebated in the other place, and suggest improvements and amendments to the Bill where necessary.

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Let me start by acknowledging that the Bill has been through a most welcome process of pre-legislative scrutiny and public consultation. The Government, as the Minister has indicated, have made changes during that process. It also received cross-party support in the other place, albeit with qualifications and continuing concerns. There have been criticisms and concerns expressed by almost every parliamentary committee which has examined the legislation, as well as by a range of external bodies, from Liberty and the Law Society to the British Red Cross, the Women's Royal Voluntary Service, the Salvation Army and the St John Ambulance.
Not all external lobbying speaks with one voice. For example, we have to balance the desire of the voluntary bodies to be involved in contingency planning with the concerns of local government about writing such consultation into statute, with its incumbent cost to local authorities. We will also wish to tease out the lines of responsibility under devolution, and the relative powers of local, regional and central government. We will have to test the concerns expressed by Dr Lewis Moonie, the chairman of the Joint Committee on this Bill, that it is a "one-size-fits-all" Bill for every possible scenario. Dr Moonie made those remarks with particular reference to what we mean by "emergency powers" and, as the Minister anticipated, I think we can see a very full debate in Committee on that matter.
There will be a very thorough probing of the whole of Part 2 of the Bill. A number of Members in another place—and in all parties—expressed concern about civil liberties and the human rights aspects of the Bill. As my honourable friend Richard Allan pointed out, this House is rich in expertise in this area, and we will certainly be putting down amendments in Committee to allow the fullest possible debate on Part 2.
I have already mentioned the need to debate how best to use the expertise of the voluntary organisations with local government. We will be probing the whole basis of funding these measures. It would not be the first time that central government have willed the ends to local government without providing the means. I know that my noble friends Lord Garden and Lady Hamwee will have more to say on this aspect, as, I suspect, will the noble Baroness, Lady Thorton.
As well as funding, we also want a clear understanding of how quality control will be implemented, so that citizens—wherever they live—can be assured of a consistently high standard of preparedness. Ministers need have no fear that this Bill, in its intentions, will lack support on these Benches. Indeed, we share with the Conservatives a mild surprise at its leisurely amble towards the statute book, given that work on updating the existing legislation started as long ago as 2000, as the Minister acknowledged.
To answer George Woodcock's question, the House of Lords is here to revise and advise. It has a particular responsibility when legislation calls into question fundamental human rights and longstanding civil liberties. Along with our legal and human rights
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expertise, we have those who know and understand the practicalities of making legislation work at the sharp end, in local government and in policing.
We also have noble Lords with a deep understanding of the capacity and commitment of our voluntary organisations. All this expertise and experience will be deployed to make this a better Bill when it leaves this place. By better I mean in giving the British people the best and most effective protection that good planning, proper resources and effective communication can provide in the face of any threat, outrage or attack.
But we will do so mindful of the warning put in the mouth of Sir Thomas More in Robert Bolt's A Man for All Seasons. When More is urged to ignore the law in favour of expediency, he points out:
"This country's planted thick with laws from coast to coast and if you cut them down d'you really think you could stand upright in the winds that blow then?".
This is why the debates in this House on Part 2 of the Bill will be so important. We have to provide a law which is not only effective in meeting a particular crisis or threat, but which is good for all seasons in safeguarding the civil liberties and human rights which make our liberal democracy worth defending.
9.1 p.m.
Lord JoplingMy Lords, I want to begin by ranting, following from the speech of my noble friend Lord McNally.
I resent very much the time we are starting on this Bill. I resent very much the incompetence of the Government's business managers in allowing such an important Bill as this to come on at this time of night. I regard it as a gross discourtesy to those of our colleagues who are going to make their maiden speeches this evening.
For all of us who have had the privilege of being able to make maiden speeches in your Lordships' House—and those of us who have had the double privilege of making one in another place as well—these are days that we remember and shall remember for all of our lives. And to invite those of our colleagues to make maiden speeches at this time of night is the most disgraceful discourtesy.
The Chief Whip told us a few moments ago that we might speak for six, seven or eight minutes. I am not a bit interested in that. This is a Second Reading. Speeches can last as long as the speaker wishes. I do not intend to have any interest in an artificial time limit, which is totally against our rules.
The Government cannot come here talking about the "ten o'clock rule", trying to get the business over by ten o'clock, when they themselves have so blatantly cheated over us coming back in September and, in return, for us getting up in the middle of July. They have sold their integrity on this matter this year by having us getting up on 22 July and stealing a week from us. I have talked about that before. I have had my rant.

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I believe that the Bill does not address the real problems which confront us. In saying this, I shall refer only to the possibilities of major terrorist attacks in this country.
The threat of a terrorist attack here in Britain is a real one. As many people have said, it is not a case of "if", it is a case of "when". I can only quote the remarks of Elizabeth Manningham-Buller in the speech she made last year to the Royal United Services Institute. Referring to attacks, she said:
"That could include a Chemical, Biological, Radiological or Nuclear attack. Sadly, given the widespread proliferation of the technical knowledge to construct these weapons, it will only be a matter of time before a crude version of a CBRN attack is launched at a major Western city".
Clause 21 defines an emergency as a situation that,
"has occurred, is occurring or is about to occur".
To put that in modern English, it gives the Government powers when we arrive at panic stations. That is what the Bill is about—the powers that we give the Government when we get to panic stations.
I am not against these powers, although I know that some people are. I simply believe that when there is a major terrorist attack, if we are going to be sensible, civil rights and human rights will not be our primary concern when thousands, tens of thousands, and maybe hundreds of thousands of our citizens are either dying or threatened with death. I am bothered not by what is in the Bill; I am bothered by what, in my view, ought to be in the Bill. My concerns are about what should be done between now and a major terrorist attack, and what powers the Government ought to have between now and then, when the Bill clicks in, in order to deal with the situation by trying to look ahead.
Modern science makes it possible for terrorists to get their hands on the most horrific weaponry which, quite frankly, could make 9/11 look like just a skirmish. The horrors of CBRN devices are too terrible to contemplate, so many say, but, as parliamentarians and, indeed, as Government, we must contemplate them. I believe that the United Kingdom is woefully unprepared to deal with these attacks between now and that moment which we all hope will not come but which may come. As things stand, if something catastrophic occurred, I believe that the Government's unpreparedness would be shown to be wickedly negligent. I have said this in private to Ministers, but I believe that it is true, and that the Government would be rightly pilloried and never forgiven for their lack of preparedness at this time.
Let me give your Lordships an example of what I am talking about, such as a major biological attack. Take smallpox—my generation has been vaccinated many times. When I was a baby, it was a routine treatment. Since smallpox stopped being a clinical situation, however, my four, five or six smallpox vaccinations have little or no remaining potential.
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Smallpox, mercifully, no longer occurs clinically, but a good many live cultures exist in the manufacture of vaccines and in stockpiles which are kept in very many countries around the world. Indeed, smallpox appears in all the civil defence manuals as a possible form of terrorist attack. The Government hold large stocks of vaccines. A year or so ago I suggested to my family that it would be a good idea if my grandchildren were vaccinated for smallpox, but it is not available—one cannot do it. I frankly cannot see why anybody, whether an adult or a child, should not be able to be vaccinated for smallpox on a voluntary basis.
The situation is much worse than that, however. I was in the United States a few weeks ago, with a NATO group on which I have the honour of representing your Lordships' House, with one of our colleagues.
I was at a science laboratory in southern California. I was expressing to an American scientist my concern about the very small number of doctors, nurses and ambulance workers in Britain who had been vaccinated for smallpox in the event of an attack of smallpox. He said to me, "Yes, you're quite right. I'm very worried about this too. In the United States, we have only 40,000 doctors, nurses, ambulance and emergency workers who have been vaccinated in preparation for an attack of this sort". I said to him, "You're very lucky". That is because when I asked a Question in our Parliament at the beginning of April about the number of doctors, nurses and other support workers who had been vaccinated to deal with an outbreak of smallpox in Britain, I was told there were 283. That outbreak could come without any warning at all. Noble Lords should not forget that there is a four to 17-day incubation period before anybody can know whether it has been addressed. That Answer stated that the vaccination of ambulance workers is likely to start shortly. That is complacency gone mad.
I am told that some people in our emergency services are reluctant to be vaccinated because of the side-effects and that is why only 283 people have been vaccinated for that kind of situation. Years ago, when I was first vaccinated, there was no particular concern about side-effects. It did not stop it being a routine procedure when I was born. Nothing less than complacency and inertia have allowed us to be so unprepared as in the example which I have given to your Lordships' House.
I am told that the Government are anxious not to scare or cause panic to the public. I do not remember that happening in 1938 and 1939, when, before the Second World War, my generation was fitted with gas masks. That was a pretty extreme measure at that time, but I do not recall any panic. The side-effects argument is totally spurious.
The Bill should be amended to include powers to require emergency workers to be vaccinated against the possibility of biological attack. I am not too concerned about the human rights implications of the Bill. That is one way in which I hope that we can amend it in the future.

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I turn to a different issue. In the event of a CBRN attack, it is vital, early on, to discover exactly what it is. There must be a definitive discovery of whether a chemical attack has been made as soon as possible. It must be precisely established what it is and what its implications are. We had a classic case of that in this building just a few weeks ago. Somebody threw some blue flour on to the Prime Minister in the most disgraceful way. Equipment exists to detect almost all of those potential weapons, whether they are biological or chemical.
Recently when I visited southern California with the NATO group I went to visit the Science Applications International Corporation—SAIC—in San Diego. I saw its monitoring equipment, which is called VACIS, which seemed to us a magical piece of monitoring equipment for the contents of vehicles, including large lorries. That equipment is extremely useful, both for seeing whether there are illegal immigrants in lorries but also whether there are sealed lead or tungsten vessels in those lorries that might contain nuclear equipment, substances or material being brought illegally into the country.
SAIC is involved in an associated project called Cyclamen, which can identify radioactive material at ports and airports. I am told that in this country we have both VACIS and Cyclamen, but only tiny numbers, perhaps as much as we could count on two fingers. That is inadequate: there is a need for a great deal more urgency. The Bill should contain powers to force airport and port authorities, where they are reluctant—I am told that in some cases they are—to install such equipment.
Equipment exists to identify quickly biological or chemical material or if necessary to give the all-clear when a suspected substance is not present. That happened in the attack in the House of Commons a few weeks ago. We are lucky in this country to have a world leader in Smiths Detection, a UK company based in Watford. The military already has a great deal of its equipment. Only a token number of such detection instruments are around the country available to the civilian authorities. That is inadequate and needs to be addressed urgently.
The Commons Science and Technology Committee reported a few months ago. I want to use extracts from its report to demonstrate why I feel that we are so utterly unprepared. The committee recommended that it should become,
"a medium term aim to provide the ambulance service with a basic level of detector technology for CBRN incidents in high risk areas".
Regarding the police, it said,
"In a House of Lords Written Answer Baroness Scotland of Asthal said that 3,700 officers would be trained to deal with a CBRN incident by July 2003 and this would rise to 6000 next year".
That is all very well, but the report continues,
"This is a facility we would have wished to have examined. Unfortunately, the Home Office refused our request for a witness to appear, even in private".
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What are the Government doing? All that endorses my view that the Government's approach to such terrorist attacks in the future is shrouded in complacency. With regard to the fire service, the report states,
"The Fire Service says it does not have the skills to work with biohazard detection equipment yet the other emergency services are relying on its expertise. If this arrangement is to remain in place then the Government must move rapidly to provide the Fire Service with effective detection and identification technology and the skills to use it".

This all demonstrates the Government's utter complacency with regard to preparations for a terrorist attack. It makes me quite exasperated when I read the Government's totally lame response to the Commons Select Committee report. They refer in paragraph 2—and if ever there was a bland statement it is this—to,
"the Government's commitment to harness the best science and technology available".
All that I can say, in the face of all this, is, "You could have fooled me".
The Government's whole attitude to the Bill is a matter of complacency. The Bill was introduced in January, after which it sat for 15 weeks between Committee and Report stages in another place. It is all summed up by the letter from the noble Lord, Lord Bassam, on 17 May, to my noble friend Lady Buscombe. He said:
"The Bill is not driven by urgent operational need; rather it is a timely modernisation of existing legislation".
Not driven by urgent operational need! All I say to the Government is, "Come on! Wake up! The enemy could be at the gate, but whenever he is at the gate we need to find out he is there before he strikes!".
9.21 p.m.
The Lord Bishop of CoventryMy Lords, the noble Lord, Lord McNally, has already drawn attention to the role played by the voluntary agencies in relation to this Bill. We have all received a briefing paper produced jointly by the British Red Cross, the WRVS, the Salvation Army and St John Ambulance. These are, of course, highly respectable voluntary organisations, which have contributed very significantly to the welfare of this nation, in times both of war and of peace. I find myself very much in sympathy with their request that the voluntary organisations should be included in the Bill and involved at the earliest stages of planning for civil contingencies.
The voluntary sector, by its very nature, encompasses a diverse range of people and skills, which are not only useful but vital at times of emergency. It is of course correct that the emergency services, such as the police, fire and ambulance services, play a primary role in emergency planning—but the voluntary sector is a wonderful resource which should be fully utilised in planning for an emergency.
There are different facets to an emergency situation which are best dealt with by different groups. Of course, the statutory services should play the lead role in ensuring that life and property are protected and

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saved during and following a disaster. Time after time the country has been wonderfully served by our emergency services, and I pay tribute to them. Many people are alive today because of their bravery and professionalism. However, behind the immediate impact of a disaster—be that an accident or terrorist incident—lies a problem that is more diffuse but very challenging. That problem is the emotional and psychological distress that many people involved in emergency situations, and their families, go through both during and after the event.
There are of course many caring and sensitive people in the emergency services, but their priority in an emergency situation must be the physical well-being and safety of individuals. It is the voluntary sector that can take pressure off the emergency services by caring for the emotional needs of survivors and families. The UK is blessed with a voluntary sector that carries out tasks in a professional way but, at the same time, we must be careful not to underplay the so-called "soft" elements of care that are so important, such as refreshments for the emergency services, a cup of tea or coffee, a caring word or a listening ear. These are not additional extras, but provide vital respite for people undergoing incredibly stressful situations.
One must not forget, either, the spiritual role that some of the voluntary organisations play. Many people caught up in an emergency will have spiritual needs that one would not expect the statutory services to meet. There are excellent examples of good practice in this area already. For example, in the London emergency plan, the Salvation Army is the co-ordinator of clergy of all faiths. So, in an emergency, clergy report to the Salvation Army rather than attempting to relate to the controller of the emergency response. This enables co-ordination of response, it streamlines the process and ensures that people's emotional and spiritual needs are met as well as they can be in very difficult circumstances.
There are many examples of clergy talking or praying with survivors or, more harrowingly, those who are not going to survive. It is absolutely vital that robust processes are put in place to ensure a co-ordinated response from those who could help to meet the emotional and spiritual needs of those caught up in disasters. It is exactly this kind of holistic care that is so necessary in a traumatic situation and which can only really be provided by the voluntary sector.
But the voluntary sector's contribution to an emergency can be of the highest order only if it is involved in planning for that emergency. Where that happens already, such as in London and other places, the benefits are clear. But just because it already is happening in some places should not be an argument for not putting it in the Bill. If involving the voluntary sector in emergency planning is best practice, which I believe it is, then it should be a requirement that all category 1 responders consult with voluntary organisations. It would be completely unacceptable if people in one part of the country were offered inadequate emotional and spiritual support because
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that area chose not to consult with voluntary organisations. We can ensure best practice by placing conditions to consult on category 1 responders.
From the representations that I have received it seems obvious that the voluntary organisations all realise that they play a secondary role in an emergency. It is not about grandstanding or self-aggrandisement on their part. The voluntary sector is simply desperate to provide the public with the best possible service and they see that being part of the planning process is crucial to that.
Like many others, I have welcomed the Government's commitment to the voluntary sector. For example, the Chancellor has made very positive and encouraging remarks to the voluntary sector about partnership and the importance of that sector in the deliverance of statutory services. The Homelessness Act 2002 includes a duty on local authorities to include voluntary organisations in reviewing and formulating their strategies on homelessness. That is to be welcomed. But I believe that what we have in the Bill is a situation where the voluntary sector wants to be involved, but is potentially stymied by the Government. Surely the Government ought to be sending out a very clear message that the contribution of that sector is to be welcomed.
Finally, to summarise, as key providers of emotional and practical support to victims and their families, the voluntary sector is united in calling for formal explicit recognition of their contribution to emergency planning and response. This recognition needs to form part of the Civil Contingencies Bill. A duty should be placed upon statutory authorities to involve the voluntary sector fully in emergency planning and response. Without this acknowledgement, the response to the human dimension in an emergency could well be less effective. I urge the Government to give serious consideration to this modest, but significant, proposal.
9.29 p.m.
Lord Archer of SandwellMy Lords, it is a great pleasure to follow the right reverend Prelate the Bishop of Coventry, particularly since I enthusiastically endorse every word he said. I will return a little later, if I may, to the voluntary bodies and no doubt we will discuss it together in Committee.
Time is against us. I understand why this situation has arisen. If the noble Lord, Lord Jopling, will forgive me—we have travelled many a yellow brick road together—I thought that some of his comments were a little intemperate. However, I hope that those outside this House who will read this debate will appreciate why some of us appear to have overlooked so many important matters.
The concept of an emergency is not new. Ours is not the first generation to encounter a major disaster. History has endowed us with examples enough from Nineveh and Pompeii to the Black Death and the Fire of London. People have recognised that there is a scale which transforms a misfortune into a visitation. Two things are new in our generation. First, the technological capability that empowers us to impact

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disastrously on the environment and so to create a disaster has also given us the technological power to avert, or at least to reduce, its impact. Secondly, partly in consequence of faster communications, partly of more effective machinery of government, we can concentrate and co-ordinate the resources to respond. One consequence is that while in previous generations people viewed disasters with a submissive fatalism, we now expect government at all levels to deal with them. Indeed, when there is a disaster, the first question is: who is to blame? Whose head is to roll? The media move into top gear to identify a scapegoat. Like Ma when Little Albert was eaten by a lion, the first reaction is:
"Someone's got to be summonsed".
So we begin with a consensus that the Government ought to put in place arrangements to forestall disasters, or at least to minimise them. That entails delivering to government the powers which they will require for that purpose. We are prepared to cash in some of our liberties in exchange for the right to survival, though I do not draw quite the same conclusions as the noble Lord, Lord Jopling, and our differences, if they are not apparent already, will appear later. However, there is a trade off.
The Government are to be congratulated on publishing a draft Bill and inviting prelegislative scrutiny. I was privileged to serve on the prelegislation committee which was fortunate to be chaired by my honourable friend Dr Lewis Moonie. The Government are to be doubly congratulated first on setting up the committee and, secondly, as my noble friend Lady Scotland pointed out, on responding positively to so many of its recommendations. Can it be made clear to certain sections of the media that when the Government respond to criticism in Parliament in an appropriate case, that is not a climb down? It is the purpose of Parliament to scrutinise proposed legislation, and the mark of a rational and open-minded government when they respond. Having, I hope, won the approval of my noble friends on the Front Bench for those comments, it may encourage them to forgive me for what I may say a little later if time permits.
Part 1 of the Bill is concerned largely with imposing on appropriate bodies an obligation to plan for and deal with emergencies. Its function is to make things happen. It is the engine room of the scheme so it requires scrutiny to ensure that action is targeted and limited to where it is needed, not primarily to safeguard civil liberties. There is a trade off between protection from undue intervention and protection from disaster. The principal purpose of scrutinising Part 1 is to ensure that we do not over extend the statutory services so that resources are dissipated and are not where they are needed. C S Lewis observed in a rather different context that the strategy of the devil is to have everyone running around with fire extinguishers when there is a flood.
One way to avoid that situation, as the right reverend Prelate pointed out, is to consider how fully we can utilise the voluntary services. In the Government's original paper, Dealing with Disaster,
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they merited some discussion. In the consultation paper of June 2003, they did not rate a mention, and in the Bill they fared no better. I agree with the noble Lord, Lord McNally. In this country we are fortunate to have a whole range of voluntary services enjoying the dedication of people who, as the right reverend Prelate reminded us, donate their time, often without remuneration, simply to serve the community, and who have undergone extensive training. At managerial level, some possess skills and experience greater than those available to the statutory bodies. They are, of course, virtually unparalleled in coping with emotional needs.
In response to the Joint Committee, the Government said they would encourage Part 1 providers to consult with voluntary bodies. It would be a welcome recognition of the work and the potential of those bodies, as well as a timely reminder to the providers, to include in the Bill a duty to consult.
There is much more to be said about Part 1 but, in view of the constraints on time, I must reserve it to enliven our Committee stage. Part 2 is the more controversial part of the Bill, where the trade-off between liberty and survival becomes more acute. The concept of the "triple lock" is a useful analytical tool, but it merits careful scrutiny. The expression first occurred in paragraph 19 of chapter 5 of the June 2003 consultation document, but does not appear in the Bill. The Government say, "No, we have not used those words. There is no one place in the Bill where you will find them". However, the elements are all there, and all you need to do is dig them out and nail them together". The Government have responded commendably to some of the Joint Committee's recommendations about that part of the Bill, but in the light of the discussion that the concept has generated, and the weight rested on it by the Government, it would have been simpler and safer to have included it expressly, not necessarily under that name, in one place, as the Joint Committee recommended. Perhaps, when my noble friend replies, he can offer us some good news.
I had a number of rather more burning issues to ventilate on Part 2. Those, too, I shall reserve for Committee, although no doubt my noble friends could have an informed guess as to what some of them will be. We do not want to handicap the Government in so important a task, but we need the Government to be less mealy-mouthed as to the powers that they are really seeking in Part 2. I think we can promise my noble friends an interesting Committee stage.
9.37 p.m.
Baroness Richardson of CalowMy Lords, I shall be brief, partly because I want to leave adequate time for the noble Lords to make their maiden speeches, to which we are all greatly looking forward, but also because the right reverend Prelate has said most of what I wanted to say, only much more eloquently.

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I shall make two additional points. I had a wry smile, as the only reference I could find to the general public in the Bill was in Clause 4(1), where there is to be,
"assistance to the public in connection with the making of arrangements for the continuance of commercial activities".
Community activity, however, is also exceedingly important, particularly when there is threat and danger and anxiety. I echo all that the right reverend Prelate said about the involvement of voluntary bodies and community leaders. I would tentatively suggest that this might be added to the Bill at Clause 24(3), which states that the regional coordinator shall,
"facilitate coordination of activities".
That might be a useful place to include a reference to community leaders.
I want to highlight again the role of the community leaders of faith communities. I was present last week at a meeting between the leaders of the Christian and Muslim communities, where we were working on a joint statement to be issued in case there was a terrorist attack. We have worked hard to have good relationships between religious communities. Those could easily be threatened if an attack were to take place in this country. If reference could be made, either in requirement or permission, to include those of good faith and good practice who are working so hard to be together, that would assist in the requirements of the Bill as well as in the public's recognition of the work that these faith leaders are doing.
9.39 p.m.
Lord RosserMy Lords, the next few minutes promise to be both an ordeal for me and, I fear, for your Lordships. On Friday I listened to the fine maiden speeches from my noble friends Lord Truscott and Lord Snape. Unlike my two noble friends I do not have the experience or the confidence that must come from having been a Member of the European Parliament or a Member of the other place. For that reason I have been particularly appreciative of the help and kindness shown to me by the staff of your Lordships' House at all levels. Help, kindness and courtesy were shown, despite what must be the considerable extra pressures arising from the sudden influx of, I believe, over 40 new Members of your Lordships' House after three years of relative drought in that regard.
I recognise that I stand here as a complete unknown to the vast majority. That was a point brought home to me by an article that appeared in the Guardian five days before the initial announcement on 1 May. It claimed, in respect of the new Labour Peers, that the Prime Minister had been anxious to avoid appointing those who would be labelled "cronies", "rebels" or "luvvies", before asserting that I would be appointed as "a lower profile union official".
Leaving aside the fact that, for some of us, being described as "lower profile" might actually mark a step up the profile ladder, I was advised by one of my friends—or, at least, I thought that he was one of my
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friends—that in my case the reference to a "lower profile figure" was Guardian-speak for, "nobody has ever heard of you". And the reference to not being a crony, rebel or luvvie, was Guardian-speak for, "and what's more the Prime Minister has never heard of you, either".
However, I admit that it is with some surprise, but with the utmost pleasure, pride and sense of privilege, despite my nerves, that I find myself where I am, doing what I am, at this precise moment. I believe that I may not be the first Member of your Lordships' House to be expressing that feeling of surprise, as I am sure some of your Lordships will know.
A previous Duke of Devonshire—I am not sure which one—is alleged to have said that one night he was dreaming that he was addressing your Lordships' House. "Then," he continued, "I woke up and, by golly, I was". Any feeling of self-importance that I might have had after the announcement on 1 May was somewhat deflated by an article in a national newspaper three days later, which started:
"The usual crop of tame union bosses was among those rewarded with membership of London's best club at the weekend".
The article then referred to three of my noble friends, or shortly to be noble friends, with a trade union background without further adverse comment, before announcing that mine was,
"the most surprising name",
as I was,
"a lifer at the TSSA, the low-key white collar transport union".
I have to say that the nearest that I have come to being a lifer was one night spent in Winson Green prison in Birmingham. I am aware that I am not unique in being a Member of your Lordships' House who has spent a night in prison, but in my defence I can only say that I was there in my capacity as a member of a national board covering the prison and probation services. Fortunately, the understanding of the prison officers about when I should be let out tallied with mine.
The newspaper article also referred to "a Labour insider" saying that I worked my socks off and that,
"he makes Jeeves look like a slacker".
If that is why I was appointed, I may be the first Member of your Lordships' House to be here under false pretences, but fortunately I believe that it is now too late for anything to be done about it.
My background is a transport and trade union one, and I will be forever grateful for the opportunities in my life given to me by the Transport Salaried Staffs' Association in particular, and the trade union movement and transport industry in general.
I am here, though, as a Member of your Lordships' House who has accepted the Labour Whip. Like, I assume, all other Members of your Lordships' House, I do not regard myself as being here as a representative of, or mouthpiece for, any outside organisation. However, my personal views, my particular interests

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and my outlook have inevitably, as with everyone else, been conditioned and influenced by my life experiences.
The transport industry, in which I have been involved for over 40 years, is one which functions very much in the public eye, where a service not run or provided when scheduled or needed cannot be made up by increasing the number of services at another time. A former chairman of British Rail once said, "For us, every day is an open day".
The Bill we are debating tonight includes major transport organisations as category two responders. I want to make a few brief and I sincerely hope not too controversial points, as this is my maiden speech.
First, the Bill does not bury its head in the sands. By inference it recognises that emergencies will occur whether as a result of human or technical mistakes or failures, acts of God or, in today's climate, acts of terrorism or sabotage. To imagine that emergencies will become a thing of the past would be an unrealistic objective, and a dangerously unrealistic one at that. The need is to take steps to reduce to a minimum the likelihood of those emergencies, and to reduce their impact when they do occur.
Secondly, as the Bill seeks to do, there is a need to ensure that risk assessments and co-ordinated responses to minimise those risks, reducing their impact where they do occur, are thorough and involve all relevant bodies.
Thirdly, much of the debate on this Bill will relate to the potential legal implications and meaning of the powers provided in this Bill, which I do not deny are important and key issues. But if—or rather, when—an emergency occurs, it will not be a desire for a legal résumé and analysis of the content of this Bill which will be immediately uppermost in the minds of those at risk or facing risk. Rather it will be the effectiveness of the relevant authorities and organisations in acting speedily, decisively, intelligently and collectively to an agreed plan with an agreed purpose—with the left hand knowing what the right is doing, and why.
We must surely ensure that important though they are, the precision and detail of the statutory powers, requirements and safeguards finally laid down in the Bill are not such as to preclude the relevant authorities and bodies from acting decisively and quickly in the interests of those at risk at a time of crisis. It seems to me that if we cannot have some degree of trust in government, of whatever political colour, not to misuse or seek to misuse powers given under the Bill, then the prospects of all pulling together to address an emergency that might arise must be reduced.
Fourthly, there must also be effective action to ensure that not only are structures, including communications, right; but also that those involved—whether directly or indirectly—have been given the skills, resources, training and information to carry out the roles and responsibilities required of them at a time of potentially considerable pressure and stress.
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Finally, we might remember in considering the Bill that planning and preparation by all concerned to minimise and reduce the impact of an emergency is not something new. After all, Noah built the ark before it started raining.
I thank noble Lords for their kindness and courtesy in listening to me.
9.49 p.m.
Lord CondonMy Lords, it is my privilege, on behalf of the whole House, to congratulate the noble Lord, Lord Rosser, on his maiden speech. He brought humour, interest and relevant comment to our debate this evening. As noble Lords heard, he also comes to your Lordships' House with a very distinguished and honourable background of service and experience in the trade union movement as general-secretary of the Transport Salaried Staffs' Association; he has been a magistrate for many years; and he serves as a member of the Correctional Services Board, covering prisons and probation. What we have heard from the noble Lord this evening augers well for his and our future, and we look forward to the many contributions that he will make to your Lordships' House.
I support the Bill and, in doing so, I declare my membership of the Joint Committee on the Draft Civil Contingencies Bill. This was the first time that I had been involved in the committee process of pre-legislative scrutiny, and I was very impressed with the thoroughness of the process, the quality of the evidence that we received, and the diligence and hard work of our support staff. I was also very pleased that the Government responded so positively to so many of the 50 recommendations made by the committee.
The Bill before your Lordships' House is now in much better shape than the original. There is greater concern for human rights and, most importantly, the potentially unfettered powers for the government of the day in the draft Bill are now set in a more acceptable, if not perfect, framework of checks and balances. No doubt we shall return to that issue at later stages.
However, I still have some reservations, and I hope that the Minister will be able to assuage those concerns in his response. In view of the advisory time constraints, I shall be very selective in my comments.
First, I am disappointed that the Government did not respond positively to Recommendations 25 and 26 of the Joint Committee report in which we recommended that a statutory duty be placed on category 1 responders to consult with, and involve, the voluntary organisations. Noble Lords have heard this evening from other speakers, including the right reverend Prelate, of their support for this issue. It would not be an onerous duty on category 1 planners or, indeed, on the relevant voluntary organisation but, in my view, it would have enormous symbolic value in recognising the importance of the voluntary sector and in encouraging volunteering.
Our Recommendation 26, if implemented, would give category 1 responders the flexibility to consult only with the most relevant voluntary organisations in

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their area. That would overcome the Government's fears that not all voluntary organisations would be in a position to respond. As a former Commissioner of Police, I know from hands-on experience of dealing with major incidents that the voluntary organisations are absolutely invaluable. Their importance should be recognised on the face of the Bill, and I hope that the Government will reconsider this issue.
My principal concern relates to the inter-connected issues of resource implications and audit and management. Many witnesses who submitted evidence or appeared before the Joint Committee raised concerns about the resource implications that are likely to arise from the new civil contingency provisions. Similarly, they raised concerns that, without a more vigorous inspection and audit regime, they could not guarantee a step-change approach to our preparedness to deal with emergencies. The Government's current response is, with respect, in danger of being complacent and over-reliant on the status quo. The Joint Committee made nine specific recommendations about resources, audit, management and implementation.
I believe that the Bill should ensure that we make a step-change improvement in our planning and response to major emergencies. The Government's response to the Joint Committee's recommendations on resourcing, audit and management are, in my view, incomplete and unsatisfactory. They seem to encourage an unnecessarily stark choice between relying on the status quo provisions with a little tweaking or moving to an American-style Department of Homeland Security. That was never the intention of the Joint Committee, and there need not be such a stark choice.
I believe that there is scope to enhance significantly the provision of resources and the certainty of better planning and implementation, without the need to create a massive homeland security department. I hope that the Minister will reassure the House that a step-change improvement in our preparedness to deal with the challenges will be achieved through the Bill. I invite him to reconsider whether the existing plans for audit and inspection are up to the task, particularly as there is so much uncertainty about the future regime of inspectorates that operate in this area.
Despite the reservations that I have raised, this is a necessary and fundamentally good Bill, and I commend it to your Lordships' House as a coherent attempt to modernise the law.
9.55 p.m.
Lord TunnicliffeMy Lords, in addressing your Lordships' House for the first time, I would like to express my gratitude for the warm and friendly welcome I have received from Members on all sides of the House. I would also like to thank the staff at every level. They are helpful, polite and friendly. They radiate enthusiasm for their work and the institution they serve. In my 30 years in customer-facing businesses I have never seen a better standard.
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I express some slight surprise at the warm and friendly welcome because my previous experience of Parliament was as a witness in front of select committees of the other place. There the atmosphere was more full, free and frank than warm and friendly. It was in my role as managing director of London Underground Limited for 10 years and its chairman for two years that I appeared in front of them. We discussed over the years a variety of issues, but they were particularly enthusiastic about helping me to build the Jubilee Line extension and particularly Westminster Station. I hope that noble Lords will agree that together in Westminster station we created a splendid back door for this magnificent Palace.
It is from my experience in London Underground and more recently as chairman of the United Kingdom Atomic Energy Authority that I would like to comment on the Bill. During the 1990s, London Underground faced a continuous threat from the IRA. Working with the security services, the British Transport Police and the Metropolitan Police, we created contingency plans effectively to mitigate this threat. We also planned responses to a wide range of even more frightening scenarios. In the nuclear industry contingency planning was always at the top of our concerns.
The House will no doubt want to concentrate on Part 2 of the Bill. Its efforts to balance the rights of the individual with the needs of the wider community will properly receive detailed attention. However, I would like to comment briefly on Part 1, particularly the duty to assess, plan and advise.
Dealing with an emergency is like a battle, or even a war. The powers are but the weapons. They are useless without a plan. A plan must address any scenario that may occur. It is the plan that will guide emergency leaders to bring resources to bear quickly as the catastrophe develops. Further, it is in the process of developing the plan that opportunities for prior mitigation emerge, either through hard engineering, procedures or training.
To achieve plans, one needs adequate resources, good people, wide involvement from all parties and good morale and esteem in the planning team. We are assured by the Government that the financial impacts are negligible. I hope that this means that the present resources are sufficient and will be maintained. Further, it is essential that government and local authorities devote some of their best people to the planning task.
The Bill lists and defines two categories of responders. It reads, to my untrained eye, as if category 1 responders do and category 2 responders react and inform. The modern world is more complex than that. A modern emergency may well involve catastrophic disruption to the utilities and transport. Only those industries understand their own businesses well enough to plan the appropriate response. It is essential that planning is an inclusive process, bringing together the expertise from all responders in any particular scenario.

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Finally, creating contingency plans is a lonely and unsung profession. No member of the public ever knows what one does. Everybody, including the planners themselves, hope that their plans are never used. It is essential, therefore, that national and local leaders go out of their way to recognise the work of the contingency planners so as to raise their morale and esteem.
This is a good and necessary Bill. I am sure that when it has received your Lordships' attention, it will be an even better Bill. However, it will be of use as an Act only if it is backed by contingency plans of the highest possible standard. One day, the future of the nation may depend upon them.
10.1 p.m.
Lord LucasMy Lords, it is a very great privilege to have been asked to congratulate the noble Lord, Lord Tunnicliffe, on his maiden speech. On discovering my name under his on the speakers' list, I had a brief look to find out about his history. I discovered with delight that he had been a pilot for BOAC. I am proud to say that we have one of those. I do not know whether the noble Lord compares himself favourably to any member of the ferret family, but perhaps we shall find out later.
As the noble Lord said, he had a torrid time as MD and chairman of London Underground. He has learnt, in a way that few Members of this House have learnt, how to deal with antagonistic press and Commons committees. In this place we are much nicer, as the noble Lord will doubtless find out when he sits on committees. I suspect that none of us will have the chance to be sacked by Ken Livingstone—except possibly the noble Baroness, Lady Hamwee, if he gets around to it.
As the noble Lord quite rightly said, he will be remembered for the Jubilee Line, which for any of us who use it is a pleasure and a glory. If it were not for the fact that we sometimes remember why it was built, it would be an unalloyed pleasure.
I enjoyed listening to the noble Lord's speech. I agreed with every word of it. I hope that that will be true of his future speeches. I very much hope that he will find the time to take a full part in the Committee and later stages of this Bill. We shall benefit enormously from his expertise.
As the Chief Whip is in his place, I hope that he will allow the Committee stage to be taken on the Floor of the House. I really believe that this Bill will not benefit from being tucked away in Grand Committee. The issues are too wide and of too much interest to too many people.
I shall want to say a great deal in Committee, but today I want to raise two points. First, if Part 1 is to work, we all need to know what to do when an emergency strikes. That applies, first, to the people who are to be involved in managing an emergency, as the noble Lord, Lord Tunnicliffe, said so cogently. In the way in which the Bill is structured, there is a real problem in that, as central government have written themselves out of the process. They do not appear to
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want to be involved at all in the practising, rehearsing and thinking that will take place. They appear to want a role of issuing diktats and supervising what goes on and when the emergency occurs, departments will get together and spend a day or two deciding which of them will be in charge of a particular emergency before they get around to doing anything.
In case that is not confusing enough, there will be a system of regional supremos who also will not be involved in practising and who will be identified only when an emergency occurs. "This is a kind of medical emergency so we'll pick Dr Thistledown from Manchester to deal with this one", when no one has ever dealt with him before and he has not been involved in the rehearsals that have taken place to produce an effective response.
It is absolutely crucial that the whole government machine is involved in practising, that the government response is co-ordinated, and that—whatever happens and whenever it happens—everybody in the central government, local government and other responders' machinery knows who is in charge, where they turn to for their instructions and what they are supposed to do if communications are down. Making sure that the mechanisms and structure are right, so that that happens, will be one of the crucial tasks I shall address.
What the rest of us know is important too. How many of us know what we do if there is some disaster which makes central London untenable? I do. I just learnt it by chance: you are supposed to walk to the local railway station and take a train from there, getting out of the way. We hear in the press that there is a procedure for convening Parliament elsewhere. But how are we supposed to get to know of it after the disaster has struck? Nobody has told us, and every single member of this country is in the same position.
I suppose we can allow for some gentle confusion about what to do in the case of something relatively benign, such as London flooding because the Thames Barrier breaks down. But what if something serious is involved, such as the smallpox attack of my noble friend Lord Jopling? We are going to be in real trouble if such a thing happens here, because the first reaction of every other country in the world is going to be to seal us off. They will not want it. We are going to be faced not just with dealing with this infectious disease but with how to survive for a month or two with no food or fuel imports.
What does one do under those circumstances? Either one has immediate faith in a national plan, because you know it exists: it starts talking to you immediately, you know where to turn to, you know everything will be fairly treated; or you grab a baseball bat, head off down to Tesco and make sure that you are going to be all right. That is what will happen, very quickly, if we do not all know what to do, or where to take our information from. It is crucial that we form a public-facing civil contingency system in this Bill. We do not need to know the details, but we need to know enough to form part of a co-ordinated civil response, rather than having to look after number one.

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What concerns me in Part 2 of the Bill is what happens in an extreme case. Are we opening up our system to the equivalent of what happened in Germany in 1933, where it became possible for an extreme party legitimately to hijack a democracy and turn it into something totalitarian? It is not that difficult to imagine what happens. Perhaps next election we will have a hung Parliament. The Liberals will join Labour and their price will be proportional representation. In the Parliament after that, a chance for PR: you vote for who you want to make a difference. The UKIP and the BNP get significant representation in Parliament. The Conservative Party, pretty desperate for power, then allies itself with the UKIP and has a stand-off pact with the British National Party. The consequence of that, perhaps, is that we have an ex-Labour MP—a demagogue, shall we say?—who becomes a senior member of the government, perhaps Home Secretary, and that is the price for co-operation.
This scenario does not last for very long. There are too many tensions in it, and they can never really agree on what to do about Europe. Six months later, the Labour Party, sensing a real division, organises a vote of no confidence in the Commons. The UKIP and the BNP are very unsure about what they will do. They disappear into a conclave of their own, which continues to last as the debate goes on. Just as the Prime Minister rises to speak, a small tactical nuclear weapon explodes on a barge outside the Houses of Parliament. The only surviving Secretary of State is the member of the UKIP, and it rapidly becomes clear that the BNP are in with him. He creates an emergency. That is pretty easy to do under the circumstances: all you do is allege that that was done by A1' Qaeda, that it has a number of other bombs planted around the United Kingdom and that it is essential to track them down and discover them straight away.
We can run on from there and ask at what point we recover our democracy. We have created a Bill under which the first thing you do is, by order, amend the Bill, removing the safeguards in it using the powers in the Bill. You censor the press and suspend the courts. Faced with that sort of behaviour, what are the only real powers that remain in the land to do? What will the police and the Army do? Will they be able to read from the Bill the subtleties of constitutional interpretation in which the Government indulge in their response to the committee of which I was a member? Is it really right to expect a general to understand how that whole thing works, or do we need to write our protections for the preservation of our democracy much more clearly, in plain English, in the Bill, so that it is quite clear to everyone when lines have been overstepped?
We are not that far from giving a presently obscure, extremist party a chance at power. It requires only PR and a bit of clever manipulation and someone will have a chance. We must ensure that, even if such a person gets that chance, it does not last. That is a hard thing to do. Again, it relies very much on the public understanding of what the Bill can do and that what is
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happening is illegitimate—and, therefore, the willingness of those who have the power to overturn such a development to act. That is something that we must include in the Bill, or we are signing our death warrant as a democracy.
10.12 p.m.
Lord GardenMy Lords, I welcome this long-awaited Bill. Sir David Omand, the Cabinet Office co-ordinator for these issues, spoke last week at the Royal United Services Institute. He said that, although we cannot eliminate the threat of terrorism in the immediate future, there is an achievable strategic aim for the next five years, which is to deny terrorists the ability to disrupt our way of life, our prosperity and our confidence in our societies and culture. The Bill fits well with that strategic aim.
However, I share with the noble Lord, Lord Jopling, concern about complacency on the Government's part. We have moved incredibly slowly. The work started before the attacks on Washington and New York. We have had three years since then. There have been subsequent attacks. Yet we still receive reports from the Defence Select Committee in the other place calling for action. In July 2002, one called for urgent action to get on with the Bill. Another report in July 2003 regretted continued delays and called for a greater sense of urgency.
I fear that I share with the committee a sense of bewilderment at the slow progress of this enabling Bill. I am very pleased that your Lordships have decided to get on with it tonight, because imposing further delay because of problems with business timetabling seems exactly the wrong thing to be doing at the moment. Through what is perhaps a combination of good luck and hard work by our intelligence and police services, we have not suffered an attack like the one suffered by Madrid in March. I wonder whether, if we had had to cope with a similar scale of attack, we would have wished that we had made more progress with the Bill and the tasking arrangements that would come with it.
Due to the time, I shall concentrate my remarks on aspects of Part 1, because I know that there will be a great deal of subsequent debate on Part 2. During the Cold War, we invested considerable resources in all aspects of civil defence. Rightly, those were scaled down, but we now find that we have to re-create the expertise and capability to cope with short notice, high impact events. That is different from the ordinary emergencies with which we must already cope. A rapid response to such events can reduce casualties significantly. To achieve that rapid response, those tasked need effective planning, regular training and the right equipment.
In placing a duty of contingency planning on local authorities and emergency services, the Bill requires them to conduct a whole range of activities such as emergency planning, risk assessment, business continuity planning and communications with the public and businesses. If these plans are to work on the day, they will require significant training and exercises.

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Local authorities already carry out some emergency simulations. For example, in 2003 Derbyshire County Council Emergency Planning Team carried out 25 exercises. Four of those were practical exercises while the rest were "table top" scenarios. The exercises included people from the health services, emergency services, local authority staff, the voluntary sector, the utilities and local media. However, to date no exercises on responses to terrorism have been carried out. The public have not been involved in the exercises other than when leaflet drops have taken place.
I worry that we are going to put these extra tasks onto the authorities without funding the necessary resources for them. Unlike the emergency services, local authorities have received no extra funding to undertake additional anti-terrorism work expected of them by the Government. Furthermore, the emergency planning service is already severely underfunded. It is not good enough for the Government to put new tasks without accompanying resources. It is not a question of the funding being done through the normal process—we are talking about what is known in military-speak as "urgent operational need". We need to make sure that they have the equipment to do the job. This is not an area where we can afford to take risks through under-funding.
Other noble Lords have spoken about the important role that the voluntary organisations can play in this and I agree with what has been said about giving a formal tasking to coordinate with them.
I wish to raise one other aspect of our preparations which is of concern to me. In their reports on the Bill, both the Joint Committee and the Defence Committee expressed concern that the responsibilities of the Government were not covered by the Bill. The Government answered these concerns in January 2004 in Cm 6078 by explaining that Ministers are directly accountable to Parliament. This does not seem to me to be a good enough excuse in these very special circumstances.
I am particularly concerned about the role of the Ministry of Defence in preparing for its part in coping with terrorist attacks. So far what has taken place has not been encouraging. The 2003 Defence White Paper gives a list of the measures taken. The major innovation of the Civil Contingency Reaction Force was reported then as being at only 75 per cent of planned strength with uneven geographical distribution. I should be grateful if the Minister could provide the latest update. But perhaps more importantly, what number of CCRF personnel are expected to be available within four hours of any major emergency? These are reservists.
The Armed Forces have shown that they provide an essential capability for civil contingencies. When there is reasonable notice—such as during the fire officers strike—then large numbers can be brought in. When administrative chaos ensues, as we had with the foot and mouth problem, the Army can bring structure and order. When floods threaten, specialist military equipment saves lives. Yet all of these events have time for the normal military aid to the civil power
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arrangements to click in. With our forces over-tasked and deployed globally, we may be less fortunate following a CBRN terror attack.
The Defence Committee reported last week that the Ministry of Defence presumption is that homeland security will be undertaken by whatever is not being used for other tasks. They concluded:
"We are not convinced that an essentially reactive approach to the defence of the UK homeland is satisfactory given the nature of the threat to the UK."
I agree with that.
If we could afford the panoply of quick reaction forces and civil defence which were available to defend the United Kingdom during the Cold War, and we are under threat again, then we need to task the Ministry of Defence to assist the hard-pressed local authorities who are being tasked in the Bill. Without a clear statement of what is available from the Government, we are likely to see sub-optimal planning, exercises and procurement by those we are tasking.
10.20 p.m.
Lord Hunt of ChestertonMy Lords, I congratulate my noble friends Lord Rosser and Lord Tunnicliffe on their maiden speeches.
I welcome the Bill, with the increased focus that it gives the Government in dealing with emergencies, following natural disasters and man-made emergencies. We have had Chernobyl in 1986, the floods in the UK in 1998 and thereafter, foot and mouth and the terrible events in New York. The Minister is correct that the natural and social context of emergencies is changing. Last year, 15,000 people died in France in exceptional heat. A Minister, we recall, resigned. That is an example of how unexpected emergencies can arise.
I declare my interests as a member of the advisory committee on natural disaster reduction, a voluntary body that provides an input at the pre-legislative stage. I am chairman of an NGO that deals with marine issues, and director of a company that provides advice to the Government on some of these issues. I am also involved in the insurance industry advisory group.
I should like to make three technical points that are not clear in the Bill at present. The definition of "emergency" in Clause 1 is broad. I welcome that, and the Minister's remarks were appropriate. It includes welfare, property, environment and the marine environment. This is reflected in the schedule covering responsible bodies.However, there are questions about which agencies are included. I refer to the comments of the noble Lord, Lord Garden, in this context. The Environment Agency is mentioned, quite rightly, but it is surprising that the Meteorological Office, which is part of the Ministry of Defence, the Food Standards Agency and several other operational agencies are not included.
Other noble Lords have commented on the way in which the Government will operate during an emergency. Japan is a world leader in natural disaster reduction and has also had experience of other kinds of emergencies, as we saw on the Tokyo underground.

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It has a single major operational centre, where all the information prediction facilities, media coverage, and so on, can be focused. The arrangements for operational centres are not explained in the Bill. As I understand it, there are many ad hoc arrangements, with the lead role being taken by different government departments, depending on the emergency. For example, if nuclear radiation comes into the country or goes out of the country, different departments are involved.
The guiding role of the Cabinet Office is not explained in the Bill, nor how it will co-ordinate between departments, agencies, county councils, the police and private sector organisations. The noble Lord, Lord Lucas, also made this point very thoroughly. I was head of the Met Office and saw that, despite this apparent British informality, there is an effective way in which different branches of government work in emergency planning. So while I do not share all the concerns expressed by other noble Lords, I believe that there are real problems which must be overcome. The Bill, suitably strengthened, is necessary.
My second point is that Clause 2 empowers the Government to plan for and mitigate the worst effects of emergencies. I understand that the Bill includes measures to be taken before an emergency occurs, as well as during an emergency. The wording is not exactly clear, but I believe that to be the import of the Bill.
The importance of this has been emphasised by previous speakers. The question is whether the Bill should include measures to ensure that the full scientific and technological capabilities of the UK are developed and utilised. I agree with the noble Lord, Lord Jopling, that the level of research and development is inadequate. It should be the responsibility of the Government to keep R&D under review. That could well be a provision in the Bill. There are excellent groups in the UK, but the research councils are not adequately involved, nor explicitly mentioned.
Collaboration between the Government and scientific bodies could greatly be improved. Scientific bodies are another part of the NGO world that must be consulted. No budget is indicated for serious expansion of R&D to provide improved systems. My impression is that there is a lack of urgency to mount a serious R&D campaign or even comprehensively to use the technologies that are currently available in government agencies and the private sector.
That brings me to my third point. The private sector has a strong role to play, as do the commercial instincts of individuals and householders. Those are complementary to the role of communities, which other noble Lords and the right reverend Prelate the Bishop of Coventry emphasised. In other words, the provision of guidance and information has an important part to play in preventing damage in emergencies. That is mentioned in Clauses 4 and 12 of the Bill.
However, in this new Labour world, the Government should also provide incentives. The insurance industry has an essential role to play in
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encouraging preventive measures and in post-emergency recovery. Its role is not as interventionist as it might be, but it can encourage organisations and householders to prepare against floods and wind storms. For example, I always put battens down on the roof of my little cottage in Devon and the tiles never blow away, but I receive no benefit from the insurance companies from that.
It therefore seems surprising that although large private sector organisations are mentioned in the Bill, and are to be consulted, the insurance industry is not included. It has been mentioned as being important in other fora and it should have a vital role. That connects strongly with the R&D necessities as well.
10.26 p.m.
Baroness Masham of IltonMy Lords, I congratulate the two maiden speakers. They showed no lack of confidence and their speeches were most interesting.
The Bill provides for what was in the Civil Defence Act 1948, but also for other events which pose threats to security in the United Kingdom, such as terrorism, and events which threaten serious damage to human welfare. The duties it imposes include the duty to assess the risk of an emergency occurring and to maintain plans for the purposes of responding to an emergency.
For years, I have been a member of the British Red Cross. I took my exams when I was 18 and I have been president of the North Yorkshire branch for many years. We face modern challenges such as acts of terrorism around the world and the emergence of new health dangers, such as the SARS virus, which alerted many people to what could easily become a world epidemic with horrific results. But far worse could be a terrorist smallpox outbreak, as described by the noble Lord, Lord Jopling. We must be prepared.
The British Red Cross, the WRVS, the Salvation Army and St John Ambulance have a wealth of experience in dealing with emergencies and disasters and should be included in the Bill. We should surely be grateful for voluntary bodies which fill the gaps and give their services freely. Voluntary organisations which are going to help in disasters should be involved at the planning stage and volunteers have to be organised, with structures in place. Like anyone else, volunteers have to be recruited and trained. In all kinds of emergency situations, volunteers are providing humanitarian, skilled, emotional and practical support to victims, their families and friends.
Volunteers of the British Red Cross and Salvation Army worked at the reception centre for more than three days following the explosion at the plastics factory in Glasgow in May. In February, British Red Cross volunteers were present to comfort the survivors of the cockle-pickers tragedy in Morecambe Bay. After the Ladbroke Grove rail crash, St John Ambulance volunteers gave assistance for seven days and its ambulances transported many victims to hospital. In Yorkshire, at the time of the terrible floods in 2002 the British Red Cross gave assistance.

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Yet there is no formal recognition for engaging the voluntary sector in emergency planning and response. The Civil Contingencies Bill presented an ideal opportunity to formalise arrangements by including the voluntary sector in the legislation. However, the Government rejected the Joint Committee's recommendations on the Bill that a statutory duty be placed on category 1 responders to consult and involve relevant voluntary organisations in civil contingency planning and that category 1 responders be given flexibility to identify and consult with the most relevant voluntary organisations in their area.
The voluntary bodies involved are puzzled and disappointed that their contribution in that key area should remain unrecognised, particularly as the Government have included the voluntary sector in recent legislation. The Homelessness Act 2002 includes a duty on local authorities to include voluntary organisations in reviewing and formulating their homelessness strategies. During Third Reading in another place, Members of Parliament gave encouraging support to the voluntary sector's plea to involve it in the planning and delivery of services in times of emergency.
The tragic events in Spain in March illustrate the vital role that the voluntary sector could play. Within minutes of the bomb explosions of the terrible morning of 11 March, Spanish Red Cross volunteers were on the scene. Over the following 24 hours and beyond, 900 volunteers provided medical care, psychological support and handled inquiries from the public. Fifty-two ambulances, 26 transport vehicles and mobile blood collection units run by the Spanish Red Cross worked in close collaboration with the statutory services.
Volunteers supported many bereaved families as they went to identify the bodies of their loved ones. Sixty-one requests for information on missing persons were received from abroad and dealt with through the International Red Cross message and tracing service. The Spanish Red Cross was able to make such an exemplary response to the tragedy because in Spain the voluntary sector has a formal role in the civic protection framework.
The Spanish voluntary sector plays an integral part in emergency planning and is designated to be involved in rescue, medical care, information, communication and emotional support. It brought a video in English to another place a few weeks ago. The representatives wanted to show us how important their work was so that we could do the same in an emergency. I hope that the Government will accept the amendment which will be tabled in Committee to include the voluntary sector.
10.33 p.m.
Lord KimballMy Lords, the Bill gives Ministers more power to do whatever they want to do by declaring a state of emergency. They can suspend the normal workings of Government and act without parliamentary approval. I hope that during passage of
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the Bill through this House a limit will be placed on the use and extent of these powers and the length of time for which they can be used.
As my noble friend Lord Lucas requested, can we have an absolute assurance that the Bill will be taken on the Floor of the House so that those of us unskilled in matters of law will be able to benefit from those who have held high judicial office? We cannot allow this Bill to be used to restrict the right of people to a decent and proper protest. I am concerned that this Bill, which deals with terrorism, contains a mysterious clause about using emergency powers to prevent the destruction of plant and animal life. That is a threat to rural activities and part of a very draconian measure. I shall move that that part of the Bill cannot stand.
I have searched the whole of the Bill and, like the noble Lord, Lord Garden, I cannot find a single reference to the use of the Army or the Territorial Army. I have searched the whole Bill to find the part that should be played by the Territorial Army—a chance for it to revert to its traditional role of looking after homeland security. As it is set up at the moment, we have 10 brigade groups, each commanded by a brigadier, covering the whole of the United Kingdom. Under their command, they have up to 500 people who can be mobilised at short notice. That is something that the soldiers know, which must be shared with their employers. Each year, some will fall by the wayside and others will take their places; but it should be known in each unit who has been chosen so that they can train to succeed them when they fall by the wayside.
This is a new role, with a short-term mobilisation plan, probably only for about a week. In particular, the territorial units with their communication skills can provide a major part in assessing the range of any chemical or biological attack. That does not affect the part that the TA plays in support of the regular Army in Afghanistan and Iraq on a nine-month engagement.
The Government seem to be afraid of involving more people in the Bill, as my noble friend has just said. They seem to have a prejudice against voluntary service on a county basis. They should realise that knowledge dispels fear and brings to an untrained and inexperienced population a better designed campaign for public information.
10.38 p.m.
Baroness EmertonMy Lords, I rise to speak with regard to the Government's rejection of the Joint Committee's recommendation in relation to voluntary organisations, on which many noble Lords have spoken tonight. But I should first like to congratulate the noble Lords, Lord Rosser and Lord Tunnicliffe, on their very interesting maiden speeches.
I declare an interest in that I have served St John Ambulance for 56 years and have had first-hand experience in emergency planning at local, county and national level. I am also a board member of the Order of St John and the British Red Cross Defence Medical Welfare Service. I crave the indulgence of your Lordships' House to reflect briefly on the history of the

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voluntary aid societies—the British Red Cross, the Order of St John and St Andrew's Ambulance Association.
I know that this time of night is not the time for history, but it is very interesting that the first Geneva Convention for the protection of war victims provided that personnel of national Red Cross societies and that of other voluntary aid societies, duly recognised and authorised by their governments, have special protection of medical personnel and chaplains attached to the armed forces, conferred by Article 24. The last confirmation for England by the Government was in January 2002 for the British Red Cross, St John Ambulance and St Andrew's as voluntary aid societies.
The statutes of the Order of St John state that first aid is rendered,
"to the sick, wounded, disabled or suffering and the promotion of such permanent organisation during times of civil emergencies or war, including the training and provision of technical reserves for the medical services of the Armed forces or any Civil Defence Organisations".
The Bill before the House is timely for many reasons that have been mentioned this evening, not least the range of emergencies that can and could occur. They have increased in number and the level of danger has increased. It is therefore imperative that adequate arrangements are in place to deal with a national emergency.
At the same time, volunteering has changed in many ways due to the Charities Act and the consequential governance arrangements. There is also the recent work led by the Government on Compact and Concordat, encouraging partnership working of voluntary organisations, in which I am privileged to have taken part. The spirit of volunteering is still alive and thriving in a vast number of voluntary organisations, many working in partnership arrangements and under service contracts with statutory agencies.
However, from my long involvement with the Voluntary Aid Societies, the key is to provide support to the statutory agencies as has been the experience in the Paddington train crash, the King's Cross fire and the Soho bomb, where St John has been called upon to use its modern fleet of ambulances to provide the day-to-day cover and cover 999 emergency calls, while the statutory ambulance service provides frontline cover. In addition, St John members are called upon to set up first aid posts to render first aid to rescuers and sometimes victims sent by the statutory services for treatment. As mentioned by the noble Baroness, Lady Masham, they often stay on site for a long time. In the case of Paddington, they stayed for seven days.
Likewise, during the Gulf War, St John was involved in Operation Granby alongside the Red Cross. Members of St John Ambulance are trained to a high standard of first aid care and transport. However, it cannot be expected that the volunteers are trained to the level of the professionals in chemical and biological contamination. Therefore it is important
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that the Voluntary Aid Societies are trained within agreed protocols for the levels of support that they can render in the case of an emergency.
I ask the Minister to give serious consideration to the inclusion of the Voluntary Aid Societies in the civil contingency planning as a statutory requirement and that flexibility be given to identify and consult the most relevant voluntary organisations in this area.
10.43 p.m.
Baroness HamweeMy Lords, I thank the Minister, who no doubt will rush in in a moment or two, for her very clear introduction to the Bill. She—but more particularly the Bill—should have had prime time.
It is daunting for a political hack—which is how I count myself—to attempt a winding-up speech following so much expertise. I do not suppose that the maiden and near-maiden speakers—if there can be such a thing—expected to overawe us, not just with their speeches but with the content and background, but they did.
It also seemed to me that it was likely that by this stage much that could be said on the Bill itself, as distinct from its context and implementation, would have been said. But I thought that it would be a safe bet that no speaker would have taken refuge in Shakespeare, though I was not prepared for my noble friend's quotation from Robert Bolt. It is not just as a plug for the splendid production of Hamlet at the Old Vic, though I say to those in the public galleries that it is probably a better performance than here—
Noble Lords: Oh!
Baroness HamweeThe poetry is better! But I say with Hamlet himself:
"If it be now, 'tis not to come; if it be not to come, it will be now; if it be not now, yet it will come: the readiness is all".
I am happy to part company with Hamlet on his conclusion:
"since no man owes of aught he leaves, what is't to leave betimes?".
But the readiness, indeed, as the noble Lord, Lord Rosser, said, is all.
I personalise this because I want to make the point that however good the plans are, the performance and the common sense of the individual are critical. The role of planning is to reduce the risks inherent in this. When the power supply in London went down last year shortly after many public figures had said on the media that the eastern seaboard of North America is one thing but it could never happen here, it seems that, had someone thought to pick up the phone and say that it was not a terrorist attack, London Underground would not have started the evacuation or detraining, the power on the Tube would have been switched back on after a few minutes and literally everything would have been back on track without huge disruption. I dare say that the noble Lord, Lord Tunnicliffe, could add many examples of that kind of event.

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I suspect, too, that the drive of individuals is significant. I am happy to pass on the comment from someone much involved in London Resilience matters regarding how effective and determined a role Nick Raynsford has played in that regard.
It is arguable that next week's announcement of the spending review 2004 will be at least as significant to contingency planning as this Bill. Much reference has been made to resources but no one has yet, in this House at any rate, mentioned the position as explained to us by the Local Government Association. It estimates that if the grant of £19 million a year, which is now available to local government for these purposes, had not been reduced in the 1990s—in 1991 it was £24.5 million—and allowing for inflation increases since, the total expenditure on the emergency planning service would have reached not £19 million but £36 million, which is the actual cost of the current service. The LGA makes the point that, unlike the emergency services, local authorities have received no extra funding to undertake additional anti-terrorism work which the Government, understandably, expect.
The Explanatory Memorandum seems to me to be disingenuous in referring to, "negligible expenditure impact" and,
"negligible impact on public sector manpower".
Many of the criticisms made of the Bill concern resources and their application; in other words, implementation rather than the Bill itself. The comments of the noble Lord, Lord Condon, were particularly telling.
The Local Government Association's briefing to your Lordships listed seven new duties on local authorities. That must mean new financial burdens in addition to the deficit—if I can use that term as shorthand—to which I have just referred. I hope that in responding the Minister can say rather more than the response that was given by the Government to the Joint Committee in which they said:
"We are committed to maintaining the right level of spending on local civil protection".
These matters are not easily the subject of amendment but clearly they are of huge concern to your Lordships.
Local authorities are used to working in partnership, as the Bill in effect requires, but their partners have traditionally included the third sector—voluntary organisations, not least because of increasing reliance on them to perform so many functions. I take the point that the Government make in their response that different voluntary organisations have different resources but I hope that we can find the right balance between ensuring their involvement not just as a piece of cosmetics but because of their very real expertise, and inappropriate reliance on them. The right reverend Prelate and the noble Baroness, Lady Masham of Ilton, dealt thoroughly with these points, as did others. I had already sensed a cross-party amendment coming on, and when the noble Baroness, Lady Emerton, started to speak, I wondered whether we really should not be saying to the Government, "Save time by conceding the point now".
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The noble Baroness, Lady Richardson, mentioned the lack of reference to "community". I was struck in reading for today that the first time I saw the term "humanitarian" was in the briefing from the four major voluntary organisations that have been referred to. One such organisation on which there is particular reliance, but to which I have not seen any reference in this context, is the Royal National Lifeboat Institution. I wonder whether anything might be said about its role. The noble Lord, Lord Hunt of Chesterton, has given me a good deal of material for thought as to who the various respondents should be.
There is another balance to be struck, and that is between openness, transparency and accountability, and causing alarm. It is not just a matter for legislation. There has been reference to "scenario testing" and the awareness of the public, if they are aware at all. My noble friend Lord Garden referred to the lack of public involvement, and I take the point that that is quite separate from awareness. It is not clear to me how the Government would respond, and I hope we can hear it tonight, to the thoughtful point made by the noble Lord, Lord Lucas. On Part 1 and the issues of transparency and accountability therein, I am really not clear. Maybe we can flush that out, and flesh it out, in Committee. Regulations can be made that will override, for instance, the normal provisions of data protection or freedom of information.
We will certainly spend time in Committee on the extent of the powers of the Secretary of State. I understand that draft guidance is on the way, along with regulations. There seem to be a lot of assumptions as to what will be in that guidance, even to the extent of references in Government publications to the "local resilience forums", which I do not think are referred to by that name in the Bill, but have already achieved the status of an acronym.
Outside London, resilience teams will not include a political element, so there will be issues there of reconciling the powers of the coordinators with those of local government. Such issues will be before us in spades on Part 2 of the Bill. I said it was daunting to follow the experts today, but it is also daunting to have one's colleagues in the House of Commons refer to the human rights expertise in this House. They are quite correct, but thank you, Richard Allan, for putting my noble friend and me on the spot. We will scrutinise those aspects of the Bill. The noble Lord, Lord Kimball, wants the input of the Law Lords. Quite so, but let us not deprecate the importance of the non-lawyers' instincts and concerns.
How appropriate is it to give such discretion to the Government? Will the role of Parliament provided by the Bill be adequate? The noble Lord, Lord Jopling, said, almost at the start of the debate, that civil and human rights will not be our concern at times of extreme emergency. To me, the issue is not about ignoring them—it is largely the definition of "emergency", and whether the Government can use their powers at a time for something that is less than a catastrophe. I guess, without having heard all the comments I wish he had found the time to make, that I would find myself much closer to the noble and

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learned Lord, Lord Archer of Sandwell, on that issue. The balance between security and accountability has to be struck here.
It is clear that the House should be grateful to members of the Joint Committee for their scrutiny of the draft Bill, and to the stakeholders, although I hate the term, who have contributed. The Minister said that the consultation was wide and that one could not expect every response to be reflected, but I note that Liberty nevertheless felt the need to send your Lordships an eight-page briefing, despite the consultation. No doubt lessons about the process that go much wider than the Bill will be learnt, but pre-legislative scrutiny should be pursued.
Perhaps I should declare an interest as a Member of the London Assembly, sackable—I say to the noble Lord, Lord Lucas—only by the electorate, although we have little direct role in these matters. However, from time to time we are briefed on London's resilience. On the last, occasion everyone present was impressed by the speed of reaction of those who gave the briefing—when there was a 61-gun salute in honour of something or other at the Tower of London, opposite City Hall, they were the quickest to dive under the table.
We face a challenge in scrutinising and amending the Bill.
10.55 p.m.
Baroness BuscombeMy Lords, I join my noble friend Lord Jopling in saying that it is ludicrous that we are here at this late hour, responding to the Second Reading of this crucially important Bill. Indeed, it is disgraceful. On a more positive note, I congratulate the two maiden speakers—the noble Lords, Lord Rosser and Lord Tunnicliffe. All noble Lords look forward to hearing much more from them.
The need to revise current civil contingencies legislation cannot be disputed. The existing statutory basis is ill-equipped to deal with the requirements of a modern social emergency. That said, many issues raised by the Bill will require substantive consideration during its passage through your Lordships' House. A draft Bill was published in June 2003. The Bill was subsequently allocated no more than the "standard minimum period of consultation" for scrutiny by the Defence Select Committee. While the core principles contained in this legislation were broadly welcomed by the committee, the Government faced considerable criticism on a number of issues, including the largely enabling nature of the draft Bill and its reliance on secondary legislation for implementation.
An additional and important concern expressed by the committee was the length of time taken by the Government to bring forward new emergency powers legislation. The emergency planning review was completed in February 2002, yet the legislation was not actually brought forward until a year and four months later. I echo those concerns. The Bill has been repeatedly delayed prior to reaching your Lordships' House. On 19 January the Bill received its Second
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Reading in another place, completing its passage through Standing Committee by 10 February, while Report stage was delayed until 24 May. Could the Minister explain why, during the passage of the Anti-Terrorism, Crime and Security Act 2001, the usual parliamentary timings were suspended to allow the expedient progress of that Bill through Parliament, yet the progress of this Bill has been impeded repeatedly?
Moreover, the period of time allocated for parliamentary scrutiny of the Bill has been entirely inadequate considering its constitutionally significant provisions. To date, the Government have failed to consider six new clauses, one new schedule and 87 amendments. Why do the Government continue to treat the Bill as such a low priority? Here we are, debating the Bill at eleven o'clock.
The Bill is divided into two substantive parts. Part 1 contains the local arrangements for civil protection and identifies the persons and bodies that will be subject to any relevant duty imposed by virtue of Schedule 1. Most notably, Clause 1 defines what is meant by "emergency" for local purposes and it is broadly defined. I shall return to that issue shortly. The bodies classified as "Category 1 Responders" are identified by Schedule 1 and include local authorities and emergency services. The Bill also includes a mechanism to impose duties on other local bodies to assist category 1 responders in the event of an emergency.
I believe that the failure to include the voluntary sector on the face of the Bill is a particularly significant omission—almost all noble Lords have made a similar point. The contribution of the Red Cross, the WRVS, the Salvation Army and the St John Ambulance in the event of an emergency cannot be overlooked or underestimated.
The Joint Committee report on the draft Bill recommended that,
"a statutory duty be placed on Category 1 Responders to consult with and involve relevant voluntary organisations in civil contingency planning",
and that,
"Category 1 Responders be given flexibility to identify and consult with the most relevant [voluntary] organisations in their area".
The Government will no doubt tell us that the involvement of the voluntary sector will be dealt with in guidance notes. That simply is not good enough. We are talking of an amazingly powerful force for good; many thousands of highly skilled, experienced and dedicated men and women ready for large-scale emergencies who should, we believe, be recognised on the face of the Bill. Indeed at present there are approximately 40,000 Red Cross volunteers in the UK; 23,000 St. John Ambulance in England alone; and a further 12,000 WRVS dedicated to emergency response, with a further 95,000 who can be called upon to assist in major incidents. Without the voluntary sector the Bill has no chance of working. It is a non-starter.
Fortunately there is already precedent, to which noble Lords have referred this evening, in the Homelessness Act for voluntary organisations to be

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identified in primary legislation, so we shall seek to amend the Bill in a similar way. I also believe the Government should heed the words of the right reverend Prelate the Bishop of Coventry that voluntary organisations carry out services in a very professional way, but that they go further in responding to the emotional and spiritual needs of those caught up in disasters. That was a truly important point to make.
I now return to the main provisions of the Bill. Part 2 repeals the existing emergency powers legislation and confers a new power to make regulations in the case of an emergency or an impending emergency. Part 2 contains the so-called "triple-lock" mechanism to safeguard the exercise of emergency powers by the Government. But I do not believe that this measure alone will provide the necessary safeguards to balance the vaguely defined and inconsistent term "emergency".
The definition offered in Part 2 is expansive and includes,
"an event or situation which threatens serious damage to … human welfare in the United Kingdom or in a Part or region… [or to] the environment…or… security of the United Kingdom or a Part or region".
Although the Government's move to define the term "emergency" more narrowly should be welcomed, there is still reason for concern. It appears that the emergency could be activated in relatively innocuous circumstances, a point raised by my noble friend Lord Kimball. I agree with Liberty on this point: the serious damage need only be threatened for the definition of an emergency to be satisfied. Thus the decision will be a subjective rather than evidence-based one.
This policy of subjectivity is again illustrated by the terminology in Clause 7, where the provision will apply only where the Minister "thinks" there is an urgent need to make a provision, or "thinks" that there is insufficient time for the regulations or an order to be made. This criterion of subjectivity is inappropriate, and we believe that an objective threshold is necessary.
Due to the immediate nature of powers conferred by the Bill, little time will be available for parliamentary scrutiny of any regulations or orders made. The powers employed by the Queen or a Minister in an emergency are extensive and must be more clearly defined. This is noticeably illustrated by the scope of the emergency regulation provisions defined in Clause 22. As currently drafted, the Government have asked for more power from Parliament than any other government in modern history. It cannot be denied that the Government consider these powers to be necessary. However, we on these Benches are also aware that in giving the Government such draconian powers, the rights of the individual may be considerably compromised, in which case we believe it is important to amend the Bill to allow any such decisions to be judicially reviewable.
I am not sure how the Government will respond to such an amendment. given their capricious treatment of the judicial review provisions in the Asylum and Immigration (Treatment of Claimants, etc.) Bill. Moreover, the fourth report in this Session of the Joint
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Committee on Human Rights recommended that express protection be afforded to Acts of Parliament containing substantive human rights and constitutional provisions. Clause 22(3)(j) permits the disapplication or modification of,
"an enactment…or a provision made under or by virtue of an enactment".
The enactment of such a provision has serious legal implications.
The Government have conceded that the Civil Contingencies Bill will not be subject to the disapplication provision and that it would be inappropriate for the Bill to be amended by regulations. But I question the failure of the Government to extend this prohibition to the Human Rights Act, and I urge the Minister to reconsider its application. Indeed, Article 15 of the European Convention on Human Rights allows a nation to derogate from particular convention obligations where a state of war or public emergency threatening the life of a nation has been declared. Therefore. I urge the Government to include the Human Rights Act in this prohibition, and we shall table amendments in Committee to address that omission.
We shall also seek to amend the provision that states that emergency regulations may not prohibit or enable the prohibition of participation in any activity in connection with a strike or industrial action. I find it extraordinary that this legislation effectively allows the government of the day significantly to compromise the rights of an individual but not those of a trade union.
Let us take last Wednesday as an example. The streets of London were in chaos as a result of strike action by the RMT. If there had been a terrorist attack and this legislation had been implemented, members of the RMT could have sat on their hands and continued with their industrial action. How can that be right? The recent events of 21 June provide a further example. The London Fire Brigades Union chose to hold industrial action on grounds of "health and safety". The resultant consequence was that only two out of 10 of the immediate response units remained active. Why, therefore, does the Bill protect the right to industrial action but not an individual's basic liberties?
Our aim throughout the Bill is to focus on not only the theoretical but also the practical effect that the Bill will have. It must be workable in practice and provide an effective framework for response in a civil emergency. To illustrate the case in point, I telephoned the Civil Contingencies Secretariat on 24 June to obtain information on emergency procedures. I called three different people, from two of whom there was no reply and the third response was a voice-mail informing me that they were out of the office. Is that really an effective response to our need for a cohesive emergency reaction strategy?
That said, initiatives such as Project Unicorn should be welcomed. The remit of Project Unicorn—a privately funded, independent research project funded by donations from the business community—was to assess the effectiveness of communication between the

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police and the public sector in the event of a terrorist attack. The report, delivered in December 2003, has been well received and has, to date, been part-implemented. An example is the private security briefings that the police now regularly undertake. Although not a formal training exercise, officers are engaged to address private security firms on aspects of terrorism awareness. Recent events clearly demonstrate the need for an effective public information and training campaign. It is crucial that the public know how they should react in the event of an emergency—a point made very eloquently by my noble friends Lord Jopling and Lord Lucas and the noble Lord, Lord Garden.
Members of the House of Commons recently illustrated how dangerous having little or no knowledge can be in an emergency. Members of Parliament are in an extremely privileged position, surrounded by the machinery of government to provide information when needed. Yet they were still unsure how best to react when the powder was thrown from the Gallery. Indeed, I think that they all got it wrong. Moreover, they reacted in a way that was detrimental to both their own safety and that of everyone in both Houses of Parliament. That really is unacceptable and proof that no one seems to know how to react.
An additional area of ambiguity is the role of the Civil Contingencies Reaction Force. At present, approximately 30 per cent of the total force is stationed elsewhere in the world. Surely the force's function is to protect Birmingham and Blackpool and not Basra and Baghdad. I also hope that the Government will respond to the concerns raised by my noble friend Lord Kimball with regard to the part that the Territorial Army should play in response to a disaster.
I turn to the local government provisions. It is clear that with this Bill the Government are imposing statutory obligations, particularly on local authorities and emergency services, while being unwilling to see any imposed on themselves. The Government stance on this omission is that:
"No reference to the role of central government is needed within the Bill for the government to engage in the full range of civil protection duties".
It is however noteworthy that the revised communication and liaison methods introduced following the fuel crisis have never been tested by exercises and only very recently has Defra engaged with local government in discussion of revised arrangements for handling a recurrence of foot and mouth. Yet on closer examination of the Bill, it appears that the Government are guilty of contradicting their own stated position. Paragraph 12 in Part 1 of Schedule 1 gives category 1 duties to
"The Secretary of State, in so far as his functions include responding to maritime and coastal emergencies".
Further on, paragraph 28 in Part 3 of Schedule 1 gives the Secretary of State category 2 duties
"in so far as his functions relate to matters for which he is responsible by virtue of section 1 of the Highways Act 1980".
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If the Secretary of State, and by inference his department, can have duties imposed in these specific areas, then why not in general?
To compound this weakness, there are a number of striking omissions from the Bill. These include broadcasters and bus and coach companies—a vital component of most evacuation plans. Neither the food distribution and sales industry nor the petrol and diesel distribution industry are included. The national chemical and radiological hazard identification and response schemes are missing.
In addition, in any specific locality there are likely to be particular organisations whose co-operation may be vital to comprehensive planning, such as the operators of major shopping, leisure and sporting complexes—again, these are missing. I cannot help but feel that it would have been better to have built upon the existing community safety legislation, which enables the local authority to require the co-operation of any organisation which it considers has a role to play. The Government's objection to such a solution is that it seeks uniformity. However, this does not stand up in the face of the flexibility that they appear to be extending in respect of other aspects of the Bill and their insistence, for example, that risk assessments are performed locally to suit local conditions.
Even with this Bill it is still not clear that the Government's response to a disaster would not be as confused and unco-ordinated as it was during the flooding and fuel crisis of 2000 and the foot and mouth crisis of 2001. Any Government contribution to the response to an emergency must be well co-ordinated with clear leadership and well tested plans.
Although the Bill would go some way to clarify what responders are required to do, the UK's resilience will still be highly dependent on the co-operation, determination and flexibility of all agencies to work together, using the resources they have for their day-to-day tasks. These agencies are already working at full capacity, and barely have enough resources to do these tasks. Indeed, unlike the Civil Defence Act 1948, neither the Bill nor the draft regulations make any explicit commitment to the funding of these new functions within local authorities.
Funding is a key issue, a point raised by almost all noble Lords. Without adequate funding the intent and duties of the Bill will become meaningless. A survey conducted by the Local Government Association of its members in 2003 established that the emergency planning service was already severely underfunded. The Government's current funding level, ring-fenced through the civil defence grant and totalling just over£19 million per annum, is woefully inadequate to meet existing responsibilities. The grant to the emergency services for emergency planning has been cut completely and in real terms the grant to local authorities has been cut by 50 per cent in real terms since 1983.
It is estimated that an additional £92 million—the source is the LGA£would be required to meet the additional duties contained in the Bill. With little investment from the Government it is difficult to see

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how significant improvements can be made. Unlike the emergency services, local authorities have received no extra funding to undertake additional antiterrorism work expected of them by Government as a result of 9/11.
Furthermore, it is crucial that a robust mechanism is put in place to ensure that funding made available is actually spent on the function and is not diverted to other services. Can the Minister, therefore, give a firm pledge tonight that the costs of the new responsibilities contained within the Bill will be fully met?
I would also like to touch on the very real concern within local government about the ongoing introduction of a regional tier of emergency planning without a proper statutory basis. The lack of clarity regarding respective roles and responsibilities between the regional and local levels creates the possibility of an increase in centralisation and direction, moving responsibility towards the Government Offices for the Regions and away from local responders. I must report that there are already examples of unwarranted interference by the regional tier in dealing with emergencies that should be dealt with at the local level.
It is also clear that the appointment of regional nominated co-ordinators risks repeating the problems caused by the adoption of lead government departments. What assurance can the Minister provide that the creation of what many professionals who are experienced in emergency planning believe will simply be an unwelcome regional bureaucratic tier?
The Bill will place on all category 1 responders a duty to warn and to inform the public. However, the National Council for Civil Protection, alongside the entire professional emergency planning community are clear that the primary responsibility for providing a clear programme of education, consistent across the nation, on what the general public can expect during an emergency and what is expected of them, rests with central government.
As the NCCP has suggested that central government should implement a 21st century warning system to alert the general public to actual emergencies, I would welcome the Minister's thoughts on this important issue.
In conclusion, the hour is very late, but I urge Ministers to consider and to heed the words particularly of my noble friends Lord Jopling, Lord Lucas and Lord Kimball and to consider what would happen in the event of an emergency. What would this Bill allow and enable all those outside who are able to take part to do? We can all look forward to some very lively debate in the remaining stages of the Bill.
11.17 p.m.
Lord Bassam of BrightonMy Lords, as the noble Baroness said, the hour is late. I have a vast sheath of notes and responses with which I could regale your Lordships' House at some length. If I responded only to the points made by the noble Baroness, Lady
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Buscombe, I would well exceed the time that she spent in setting out the Opposition party's approach to the Bill.
Before I begin my response, I congratulate all noble Lords who have taken part in the debate, because it has been wide-ranging and intense in its concentration on a range of issues. I also want to add my general congratulations to the noble Lords who made their maiden speeches today my noble friends Lord Rosser and Lord Tunnicliffe. In the comments of my noble friend Lord Rosser, I felt an echo of something that was said about me. He reported that he had been described as a lower profile figure in one national newspaper. When I was made a Peer, one local newspaper described me as a sub-regional minor celebrity. At the time I was flattered—I thought it was rather good.
Of course, the House will greatly benefit not only from the contributions of my noble friend Lord Rosser but also from those of my noble friend Lord Tunnicliffe, who has practical experience in dealing with major emergencies during his time in charge of London Underground and in some of his other interesting roles and capacities before joining your Lordships' House.
I said that the debate had been wide-ranging in its intent. The noble Lord, Lord McNally, told us that we were dealing with a rather elderly law, which was a very true comment. There was a general welcome, along with many points of criticism, for the modernising effect of this piece of legislation. I cannot subscribe to the doomsday diction that the noble Lord, Lord Jopling, visited upon us, during his very powerful contribution on the issues in the Bill. However, I certainly recognise the strength of view he has on this set of issues, and I have no doubt that strength of view will be echoed throughout what promise to be very interesting Committee, Report and Third Reading stages.
I did not recognise in the legislation the sort of excuse that the noble Lord, Lord Lucas, regaled us with in his democratic doomsday scenario and its widespread threat to civil liberties, which he said the Bill anticipated. No doubt, however, we will have some very thoughtful debates on the issues the noble Lord touched upon in his interesting contribution.
I hope that, in the time I have, I can touch on some of the issues raised, because there are clearly some very important points that emerged during the debate. I will not be able to answer all the points: I can respond to some of them through correspondence, and no doubt we will touch on many of the other issues in Committee; that is probably best way to leave it.
This evening's debate and the passage of the Bill in another place have demonstrated that this is, in the end, not a party political issue. We are all very determined to try to get to grips with the fundamentals of modernising this elderly legislation. Whichever party was in power—or on watch, as it were—would have to bring forward a similar package of measures. I fully accept, in saying that, that the package would not be exactly the same, because I am sure there would be a different emphasis.

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I am aware that the Bill has elicited a very strong response from all sides of the Chamber. But where there are differences between the Government and noble Lords, these have tended to be on matters of details rather than the principles underpinning the Bill. This Bill is, in my view, an excellent opportunity to build on the effectiveness of civil protection arrangements in the United Kingdom, and it is therefore crucial that we get the provisions of the Bill right. I was much encouraged by contributions from all sides of the Chamber that were determined to achieve that objective. I have enjoyed the dialogue that has begun this evening, and am looking forward to what should be a very constructive challenge during the later stages of the Bill process.
The UK's resilience to disruptive challenges is already high. There is a strong tradition of effective planning and response at a local level, and many of your Lordships made reference to that during the debate. After all, there are some 30 years of Northern Irish terrorism, and the effect of that has been to establish within government a capability, and awareness amongst businesses and the public, which puts the United Kingdom in a comparatively strong position.
I challenge the accusation that has been made: this Government are not complacent, and I rather resent the suggestion that we have been. Flooding, the fuel crisis in 2000 and the foot and mouth outbreak in 2001 exposed weaknesses in our system. We think we have learned the lessons of these challenges, and there is good evidence to suggest that we have. The Bill is, after all, only one aspect of the Government's wider efforts to improve the United Kingdom's resilience to disruptive challenges. We have made massive and considered investment in civil protection and counterterrorism over the last few years. We will continue to take steps to build the capabilities that we need. The Bill is a crucial aspect of this wider programme of work.
The noble Lord, Lord Jopling, made the strongest attack on the range of preparations. I would argue that the whole of Part 1 of the Bill is about preparation, and we have been making very substantial progress through our capabilities programme to build the resilience that all Members of the House see as being essential. Our whole counter-terrorism strategy is designed, after all, to protect, pursue, prevent and prepare for emergency challenges.
The noble Lord, Lord Jopling, said that we were not ready for a chemical, biological, radiological or nuclear incident. The emergency services have been training, and are equipped, to enable them to respond effectively to such incidents. In any incident of that sort, the emergency services would be on the scene in minutes. They would give instructions and advice, explain the situation to the public and carry out the necessary decontamination programmes, using mobile units if required. The Bill places the police at the core of response to emergencies by designating them as a
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category 1 responder. This is entirely consistent with their current role in emergencies and provides a strong basis for their emergency planning work.
Responses to incidents including terrorism are well practiced and well rehearsed through regular programmes of exercises. During the debate this evening much has been made of our spending in dealing with the sorts of incidents that noble Lords have mentioned.
The Government believe that the expenditure on this should be as transparent as possible. We will continue to announce counter-terrorism allocations subject to security considerations, as we did when the Chancellor allocated an additional £330 million of dedicated funding to counter-terrorism in the 2003 Budget.
Headline spending figures specifically for CBRN incidents are difficult to distinguish in a standard budgeting process. For example, medical countermeasures purchased by the Department of Health are not specifically for chemical, biological, radiological and nuclear incidents in the same way that gas-tight suits for the fire service are not purchased only to be used in a chemical incident.
I would like to give some examples of investment because much has been made of this. As I have said, in the 2003 Budget we awarded £330 million over three years to counter-terrorism projects. There was £;85 million allocated in 2002–03 to the NHS for medical countermeasures and equipment, including personal protective equipment and £56 million to the fire service for the mass decontamination phase of the new dimension programme. Those are examples of where we have been putting our investment as part of our measures to build up resilience over the past few years. I could go through where that money has been spent, but my time will be better spent if I go through some of the other issues that were raised during the discussion.
We have learned the lessons of previous emergencies, including the fuel crisis and the foot and mouth outbreak. The review that we launched following these crises reinforced the Government's conclusion that existing legislation no longer provided an adequate framework for modern civil protection efforts and that new legislation was needed. That is an opinion that is widely shared in your Lordships' House.
Disruptive challenges exist along a spectrum of severity from localised flooding to a massive terrorist attack. While the threat of terrorism remains real, we should not lose sight of the smaller-scale emergencies that can and do have an equally devastating impact on local communities—for example, flooding or industrial accidents. The challenge is to ensure that arrangements are robust and flexible enough to manage all of those risks.
The Government have also strived to strike the right balance between safeguarding security and the welfare of the community and protecting the rights of individuals. We heard wide-ranging views on that subject during the debate this evening. They were expressed very robustly by the noble Lord, Lord

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Jopling, regarding the need to protect civil liberties—or, as he was arguing, to set them to one side; whereas the noble Lord, Lord McNally, made a strong plea for civil liberties to be protected even in legislation such as this which deals with emergencies and very challenging circumstances for the Government.
The Government must be ready and able to protect citizens from the effects of a catastrophic incident, but without unnecessarily threatening civil liberties. We have worked with the fullest range of organisations to construct the right legislation, and the quality of the legislation that we have delivered is due in large part to the willingness of stakeholder groups to contribute to it. These have been as diverse as those involved in emergency planning at a local level through to national organisations like Liberty.
The public consultation and beneficial pre-legislative scrutiny have made a real difference to the Bill. We will continue to work closely with practitioners to ensure that the regulations under Part 1 of the Bill pitch the duties at the right level, and that we make available helpful, practical guidance.
We have established a series of practitioner-led working groups to help us achieve this. We will also issue a public consultation on the regulations shortly after Royal Assent. Getting the balance right in this field of consultation is difficult. We have been criticised for slowness in taking the legislation through the parliamentary process and getting it here. We have also been criticised in the past for failing to listen. I think we have the mix about as right as one can get it.
Local responders are the building blocks of our ability to deal with emergencies. Our fire, police and ambulance services are among the best in the world, and they have unquestionable expertise in emergency planning and response. The Government recognise the long-standing demand for legislation in this area, and practitioners have in general welcomed the proposals we have brought forward. For the first time, this legislation identifies the roles and responsibilities of responder bodies at the local level, establishing clearly what the Government expect of them.
The Bill will make the United Kingdom more resilient by ensuring greater consistency of civil protection activity across the country, delivering improvements in the performance of individual bodies and improvements in communication between them. This clear and consistent framework of roles and responsibilities will also facilitate better performance management of multi-agency arrangements, allowing more effective benchmarking and best practice sharing.
The lead government department principle places clear responsibilities on all departments. This is reinforced by the key capabilities programme, which establishes clear ownership for developing the capabilities that underpin the response to emergencies. The structures are to be reinforced by a new standards and audit regime. The noble Lord, Lord Condon, made particular reference to the need for resource management and effective audit, and we agree with that. This will be overseen by the Cabinet Office as part
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of its co-ordination responsibilities. It will make sure that departments are planning properly and can respond effectively in emergencies. Details of the regime were published earlier this year.
We also recognise the need to modernise the tools available to the Government to deal with the most serious emergencies. Some disruptive challenges are of such a scale or nature that they may require extraordinary measures which would not be appropriate in normal circumstances. Temporary changes to legislation may be required in order to deliver an effective response.
Emergency powers are a necessary safety net to ensure that we can deal with even the most serious and unpredictable situations. Such potentially wide-ranging powers must be accompanied by robust safeguards to ensure that they are not abused. Many contributors to the debate, including the noble Lord, Lord Lucas, the noble Baroness, Lady Buscombe, and the noble Lord, Lord Kimball, referred to their concerns for the protection of civil rights and civil liberties. We share that concern, which is why we have worked very closely with stakeholders to ensure that the legislation reflects that. I think we will be able to argue during the course of the Bill that the safeguards are a huge improvement on those contained in the existing legislation. We could make out a case that those safeguards are not properly there. We recognise the importance of that issue, and I will pay particular and close attention to the points made by the noble Baroness, Lady Buscombe. We will no doubt come back to those during our debates on the Bill.
Lord Archer of SandwellMy Lords, I am grateful to my noble friend for giving way. I am sorry to spring this question on him so suddenly, and I will fully understand if he prefers to answer it at a subsequent stage. Clause 22, which provides the power to make the regulations, states:

"Emergency regulations may make any provision which the person making the regulations thinks is for the purpose of"
various activities, which are then set out. Surely the person making the regulations must know for what purpose he is making them. If my noble friend cannot answer that now, I will be perfectly happy to have my puzzlement resolved later.
Lord Bassam of BrightonMy Lords, I think that I will take the easy way out; I will advise my noble and learned friend later and ensure that his puzzlement is put to rest. I think that we can probably deal with that point during later debates.
As I indicated at the beginning, I have a sheaf of responses to the very proper points that were raised this evening. I wanted particularly to pick up on the role of the voluntary sector, because so many speakers raised it in their contributions.
We of course recognise the important role that the voluntary sector already plays in local civil protection arrangements, particularly in the field of humanitarian support. The noble Baroness, Lady Richardson, and the right reverend Prelate the Bishop of Coventry referred to

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the value of the comforting role that volunteers and those involved in religious organisations play in this field. We fully recognise that and lay great stress on it.
We acknowledge the role of the voluntary sector in dealing with disaster. The Government's key guidance to local responders recommends joint planning with voluntary groups. The setting-up of voluntary sector co-ordinating groups at a local level is very important. As many noble Lords have said very clearly, voluntary organisations will be involved in local multi-agency planning and response. They will not have any legal duties under the Bill, but they will remain free to continue in that existing and important set of relationships with organisations that are covered by the Bill and play an important and appropriate role in civil protection efforts.
It is worth putting on record that the Bill team has worked closely with practitioners and voluntary sector representatives to ensure that the contribution of voluntary organisations and their role can be captured fully in the guidance which will support the Bill. I know that there is an argument about whether it is best to spell out the role of the voluntary sector in the Bill or to leave it to guidance. We take the view that the latter approach is the most valuable, because it provides flexibility. That is not to say that we do not value the work of the voluntary sector. We will continue in our efforts to ensure that it plays a full role, which is fully respected and understood at a local level.
Because of the range of points that were made, it is probably better to deal with them as we work through the Bill in Committee. If specific questions have been asked this evening, which I know I have not covered because of the breadth of them, I shall be more than happy to respond to them in correspondence. As there were so many questions, I would not be doing justice at this late hour to the individual issues that were raised. I have already spoken for 20 minutes. If there were time, I would like to spend more time on those points.
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I shall re-emphasise to the House a number of the key points which the Minister of State underlined earlier. First, the Bill is a necessary addition to the statute book. I am sure that we can all agree that a robust framework for civil protection is vital for managing the threats that we face in the 21st century. Secondly, I think that we can all agree that the Bill is timely. As many noble Lords have observed, existing legislation in this area was designed for a different era and modernisation of the measures for dealing with civil protection is long overdue. Thirdly, although there will be powerful differences between us during the passage of the Bill, we have already built up a strong consensus behind the proposals that are in the legislation. We have also listened carefully to the needs of stakeholders and secured a degree of support from a wide range of groups. There is now a strong expectation that the Government should deliver.
In conclusion, this package of measures is necessary; it is timely; and it has the support of a wide range of practitioners. As the noble Lord, Lord Condon, pointed out, it is a coherent and well thought out Bill, which will be fit for purpose for many years to come. For those reasons, I commend it to the House.
Baroness BuscombeMy Lords, before the Minister sits down, will he reassure me that, if he is unable to do so tonight, he will write to me as soon as possible to answer the point that I raised about trade unions? Why does Clause 23 allow the rights of individuals to be so compromised, but not those of trade unions? That point deserves a considerable response.
Lord Bassam of BrightonMy Lords, as I said earlier, I am happy to respond to the individual points that were raised during the debate. In fairness to your Lordships, there were so many that it would not do them justice if I went through each of them or provided a hierarchy. Of course, we will respond to the noble Baroness's point in correspondence and share it with all those who have participated in the debate.
On Question, Bill read a second time.
House adjourned at nineteen minutes before midnight.