Lords Sitting of 15 July 2004

Preamble
The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Worcester): The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES on the Woolsack.

Palace of Westminster: College Green Ticket Booth
Baroness Oppenheim-Barnesasked the Chairman of Committees:
Which body was responsible for approving the erection and design of the ticket booth on College Green.
The Chairman of Committees (Lord Brabazon of Tara): My Lords, Westminster City Council, after consultation with English Heritage, approved the erection of a temporary ticket booth on College Green and gave advice about the nature of the final design. Within that limitation, the design was approved by the joint visitor route steering group, in conjunction with the Parliamentary Estates Directorate. The booth is the same as that erected during the Summer Recess in 2003. Options for a permanent ticket office continue to be explored.
Baroness Oppenheim-BarnesMy Lords, is my noble friend aware that some people have described the booth as a cross between a hot-dog stand and a hoopla stall? I would not go that far myself, but does he believe it to be in keeping with the dignity and beauty of the Houses of Parliament?
The Chairman of Committees: My Lords, I quite appreciate that the design of the booth may not be to everyone's tastes; presumably, the architect liked it. However, given security considerations and the pressure of space within the Palace, a ticket office outside it is necessary. None the less, I assure the noble Baroness that options for creating a permanent ticket office are being taken forward, so that the temporary structure can be removed.
Lord McNally: My Lords, the demand for visits to this beautiful Palace is a great wonder. Would it not be better if the Palace were turned into a museum of democracy, with plans set in hand to build a 21st-century parliament? Such a place would not turn our thinking into old thinking, but would invigorate our whole democracy by putting our parliamentarians in a 21st-century and radical frame of mind.
The Chairman of Committees: My Lords, the noble Lord's question probably goes slightly outside my
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brief and, on the whole, I do not agree with him. If this were not a working Palace, presumably a lot of the visitors would not want to come.
Lord Cope of Berkeley: My Lords, is the noble Lord the Chairman of Committees aware that there will not be universal agreement with what was said by the noble Lord, Lord McNally? After all, he was calling for this Parliament to imitate the Scottish Parliament in setting up a new building. Apart from the expense— as I recall, it has risen from£40 million to£400 million so far—it has not enhanced the behaviour of the Scottish Parliament.
The Chairman of Committees: My Lords, the noble Lord probably tempts me slightly beyond my brief again. However, I am sure that there will be lessons to learn from the building of the Scottish Parliament, and no doubt from the building of the Supreme Court when we get one.
Lord Lawson of Blaby: My Lords, following the question of the noble Lord, Lord McNally, does my noble friend agree that the Prime Minister has in fact done a remarkably fine job of turning this place into a museum of democracy without any of the expenditure that the noble Lord, Lord Cope, envisages?
The Chairman of Committees: My Lords, I hear what the noble Lord says.
Lord Steel of Aikwood: My Lords, is the Chairman of Committees aware that I am provoked to point out that, after the building of this Palace, Mr Disraeli suggested that the architect be hanged?
The Chairman of Committees: My Lords, I do not think that we would go that far with the architect of the ticket booth across the road.
Lady Saltoun of Abernethy: My Lords, is the noble Lord aware that architects usually like their own work and have to be kept under control, like all other experts?
The Chairman of Committees: My Lords, that is true. It might be useful if I gave a little of the history. The Palace was first opened to the public during the Summer Recess in 2000, at which time tickets were only available off-site by telephone or the Internet and had to be picked up from the British Tourist Office in Regent Street. That rapidly became obviously unsatisfactory, and a ticket office was then set up in Westminster Hall. Unfortunately, that meant that people had to go into Westminster Hall through security, buy their tickets, go out again, go along the pavement and go in through Black Rod's Garden and again through security. That was obviously unsatisfactory as well. The following year, a temporary tent or Portakabin was erected. That proved not to the liking of English Heritage and such people, so the new booth was erected. As I said in my

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Answer, we hope to have more permanent facilities in due course. The permission to put the booth where it is lasts only until 2008.
Lord Rotherwick: My Lords, does the noble Lord the Chairman of Committees agree that the site on College Green is extremely badly managed? During the winter, it was dug up and was plain earth. In the spring, it was regrassed, presumably at vast expense. The grass that was put down in early spring is now covered with a type of carbuncle that has come to revisit us again this summer.
The Chairman of Committees: My Lords, the booth is on only part of the grass.
Baroness Strange: My Lords, does the noble Lord agree that we could have the ticket booth in Parliament Square, on the site of the current tip?
The Chairman of Committees: My Lords, that is a possibility. The only problem is that most of the visitors would probably be run over crossing from Parliament Square to the Palace.
Lord Davies of Coity: My Lords, do I understand that, because our business takes place in this ancient and wonderful building, the noble Lord, Lord McNally, proposes that we are incapable of thinking in the 21st century?
The Chairman of Committees: My Lords, the noble Lord must ask the noble Lord, Lord McNally, about that.

Kyoto Protocol
11.7 a.m.
Lord Mitchellasked Her Majesty's Government:
What are their plans to encourage Russia and the United States to ratify the Kyoto Protocol.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the Government continue to urge Russia to ratify the Kyoto Protocol as soon as possible. Indeed, the Prime Minister has spoken personally to President Putin on the matter. There would be economic as well as environmental advantages to Russia, which we put across at every opportunity. Unfortunately, the United States Administration have made it clear that they have no intention of ever ratifying Kyoto. However, we continue to engage them on climate change. For example, my right honourable friend Margaret Beckett spoke to senior members of the administration during her recent visit to Washington, and we look forward to their constructive engagement.
Lord Mitchell: My Lords, I thank my noble friend for that reply. It was not entirely reassuring, but I
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thank him all the same. Global warming poses what many have described as mankind's greatest threat—irreversible climate change. The Kyoto Protocol to limit carbon dioxide emissions cannot come into effect unless either Russia or the United States ratifies the treaty. President Putin is indecisive; President Bush is indifferent. When will our Government use their considerable influence with both leaders to give the issue the priority that it demands?
Lord Whitty: My Lords, my noble friend is absolutely correct to say that the issue is the greatest challenge facing the world's politicians. It is deeply regrettable that the leaders of many countries have failed to give it the same priority as we in Britain and many other countries in Europe have. We use all our best efforts to try to persuade both the Russian and United States Governments to engage constructively in discussions on climate change. I regret to say that the United States Administration are more than indifferent; they are deeply hostile to the Kyoto Protocol. However, they are ignoring increasing concern within America as a whole about climate change, and we wish to engage the United States, perhaps beyond the Kyoto Protocol, in a more constructive relationship. We look forward to that occurring. With the Russians, there is a chance of ratification and we continue to press them on it.
Lord Marlesford: My Lords, does the noble Lord not recognise that Britain's influence in the world on global warming might be a great deal better if the Government were to recognise that the biggest single contribution we could make to its reduction was to have a fresh look at nuclear power? They should recognise that it is both renewable and benign in terms of carbon dioxide.
Lord Whitty: My Lords, we have had this debate and I suspect that we shall have it again when we deal with the Energy Bill immediately after these Questions. Clearly, like all governments, this Government have adopted an energy policy based on low carbon energy with the intention of achieving it over a considerable period of time. We believe that we can do that with a combination of energy efficiency measures and renewables, but we are keeping the nuclear option open. There may be a role for nuclear, certainly in a global context. But, however we achieve it, the aim must be to have low carbon energy sources and a substantial cut in carbon take for energy over the next few decades.
Baroness Miller of Chilthorne Domer: My Lords, can the Minister tell the House when the restrictions on land grazing in North Wales, which were imposed as a result of fall-out from Chernobyl, were lifted? They may still be in place during certain times of the year.
Lord Whitty: My Lords, the noble Baroness has switched me back to agriculture and left me slightly unbriefed on this question. However, I am aware that not long ago some of the restrictions arising from

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Chernobyl were still operating in parts of North Wales. That indicates that, although nuclear power is a very low carbon technology, it will not be a sustainable technology until we are absolutely clear about the safety and disposal of nuclear waste.
Lord Hunt of Chesterton: My Lords, do Her Majesty's Government agree that practical energy-saving measures are necessary in order to fulfil the obligations of Kyoto? Will they use the visit of the G8 leaders next year to demonstrate what we are doing in the UK? Will they be visiting BedZED in Sutton and Woking, and will they be driving around in hybrid cars and buses during the visit of those leaders?
Lord Whitty: My Lords, energy saving is clearly a major part of the world's, as well as Britain's, achievement of low carbon technology. My right honourable friend the Prime Minister has made it absolutely clear that we shall use the presidency of both the G8 and the EU to ensure that climate change is a central preoccupation of those organisations next year. As to the detailed arrangements of the visit, I have no information at this stage, but I shall let my noble friend know.
Lord Livsey of Talgarth: My Lords, is the noble Lord aware that the United States is in denial about Kyoto but that some of its states are supportive of the idea? Are the Government in contact with any of the states which have progressive views—for example, on emissions trading schemes—and what have they found? And are they influencing the situation as best they can?
Lord Whitty: My Lords, I am glad that the noble Lord made a distinction between the attitude of many in the current United States Administration and the changing view of many in the business and political worlds within the United States. He is clearly right. For example, the five north-eastern states of the United States, the majority of which are run by Republican governors, have joined a proper climate change programme and are looking to join, in some way or another, European emissions trading schemes. That is a very positive development, as are developments in California. We hope that they spread to Washington soon.
The Earl of Dundee: My Lords, within the EU how hard are the Government pressing for a deal with Russia? When will that country's WTO status be sufficiently clear so that its Kyoto ratification can then be adequately secured?
Lord Whitty: My Lords, discussion on the WTO front is proceeding positively. I cannot give the exact timing of any deal, but clearly that is a consideration of the Russian Government. We are saying that, from a political, as well as from an economic and environmental, point of view, Kyoto is part of establishing Russia as a major player and it has environmental and economic advantages for Russia.
Baroness McIntosh of Hudnall: My Lords, does my noble friend agree that there may be some tension
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between the Government's commitment to meeting their own Kyoto targets in respect of emissions and their declared policy in respect of expansion of air travel?
Lord Whitty: My Lords, aviation creates a serious problem of CO2 emissions. As I suspect my noble friend knows, international aviation was excluded from the Kyoto Protocol and therefore it does not make any difference. At present, aviation accounts for a small amount of CO2 emissions. However, the level of such emissions will rise, and it is therefore important that aviation begins to take seriously measures to reduce the effect of CO2 emissions from air travel. We are trying to urge the British and European aviation industries to take measures to join the second phase of the emissions trading scheme starting in 2008. Some parts of the UK aviation industry are taking on board that message.
Lord Dixon-Smith: My Lords, if I understand matters correctly, the Kyoto Protocol applies to OECD countries. But it looks as though, within a decade, CO2 emissions from non-OECD countries will exceed CO2 emissions from OECD countries. The problem will not be resolved without the involvement of the non-OECD countries. What steps are the Government taking to ensure that they also play their part in tackling this global problem?
Lord Whitty: My Lords, it is certainly true that climate change in total will not be properly tackled until the burgeoning economies of China and India also participate. However, it is incumbent on the developed countries to take a lead in the matter. The carbon take per person in the United States is 20 times the carbon take per person in India. If we cannot persuade the United States and Russia to join the protocol, it will be difficult to persuade the Chinese and the Indians to do so.
Certainly, in the phase beyond Kyoto, when it is hoped that the United States will have taken heed of the concerns of its own citizens, as well as world concerns, we can engage both the United States and the developing countries—particularly the big economies—in tackling what must be the biggest challenge to this generation of politicians. It is about time that politicians in all parts of the world recognised that as their top priority.
Lord Lawson of BlabyMy Lords, is the Minister aware that considerable doubt has been raised about the quality of the economic analysis underlying the climate change projections produced by the International Panel on Climate Change—the IPCC—with which the panel has refused to engage? As this is such an important matter, as the Minister said, is it not important that the Government use their influence to have the economic aspects analysed separately by the OECD before any further conclusions are drawn?
Lord Whitty: No, my Lords, because the scientific basis for, and the physical effects of, climate change

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are virtually unchallenged by any serious scientist. The economic calculations are subject to some degree of dispute. I am happy to urge people to engage in discussing those calculations, but they do not undermine or threaten the basic conclusion that, unless we do something, this world will get dangerously warmer.

Hospital-acquired Infections
11.17 a.m.
Baroness Cumberlegeasked Her Majesty's Government:
What progress they are making in reducing hospital-acquired infections.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, as the National Audit Office report on hospital-acquired infections, published yesterday, observes:
There has been notable progress at trust level in putting the systems and processes in place and in strengthening infection control teams.
The report also cites examples of good practice in our hospitals. We are determined to bring all hospitals up to the standard of the best, and the wide range of work under way is set out in Towards Cleaner Hospitals and Lower Rates of Infection, published recently.
Baroness Cumberlege: My Lords, I thank the Minister for that reply. However, I think that the Government have been extraordinarily complacent on this issue. Is it not true that very little progress has been made? In fact, in its report, the National Audit Office says that over the past three years the situation has got worse.
If we had a rail crash, killing 100 people, there would be a massive inquiry and heads would roll, yet 100 people a week die due to hospital-acquired infections. This is a terrible, microbiological and preventable disaster, and I am afraid that the wet mops and well meaning volunteers that the Government have suggested will not put it right.
Is the Minister aware that several British companies—there is no need to fly in experts from abroad; we have world leaders here—have the technology to zap MRSA and superhugs? Does he recall that, seven months ago in Winning Ways, the Government promised a rapid review to assess those companies but nothing has happened? In fact, the department now states that it hopes to start the evaluations before the end of this year. Is the Minister content that more than a year will have passed and another 5,000 people will have died unnecessarily, and that the Government will have ignored the microbiological solutions that are here on our doorstep? Will he take responsibility for initiating the rapid review now?
Lord Warner: My Lords, I shall not trespass on the patience of the House by producing an answer quite as
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long as the question. Healthcare-acquired infections in the UK are at similar levels to those in Europe: 9 per cent in the UK; 7 per cent in the Netherlands; 8 per cent in Spain and Denmark and 6 to 10 per cent in France. So, we have a problem similar in scale to the rest of Europe. We have tackled that very energetically. I remind the noble Baroness that we know about the scale of MRSA in our hospitals only because this Government introduced a mandatory surveillance system, whereas the previous government relied on a voluntary system, which understated the problem.
Baroness Platt of Writtle: My Lords—
Lord Marsh: My Lords, I should like to ask a totally non-partisan question. Does the Minister have any figures which give a comparison either way with the private sector in the UK?
Lord Warner: My Lords, the problem is that in the private sector there is a high percentage of elective surgery whereas in the NHS many of the patients who are being treated are much more vulnerable to healthcare-acquired infections and MRSA. Furthermore, the pressures on NHS beds are rather higher than the pressures on private sector beds.
Lord Clement-Jones: My Lords, the NAO report demonstrates quite clearly that we have the worst rates of MRSA in Europe. That is a matter of record. This is a matter of basic hygiene and it is clear that not enough progress has been made since the NAO report was produced. Does the Minister not accept any criticism of the Government at all on this matter? Furthermore, have the Government considered the adoption of British standards on this matter for every hospital and bringing in cleaning services to hospitals so that ward managers have proper control of cleaning?
Lord Warner: My Lords, my right honourable friend the Prime Minister made clear yesterday that the Government take this issue very seriously. It is this Government who came out with a strategy called Winning Ways in December last year, and, as I said in my Answer, it is this Government who came out with further plans in Towards Cleaner Hospitals and Lower Rates of Infection. However, we must also take account of the fact that in terms of healthcare-acquired infections, we are not out of line with the rest of Europe. We have a particular problem with MRSA, as do other countries. I would remind noble Lords that the United States, which has lower bed occupancy than this country, has similar levels of MRSA to the UK.
Baroness Platt of Writtle: My Lords—
Lord Hughes of Woodside: My Lords, is it not the case that the responsibility lies with the medical

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profession, with the nursing profession, and with the trusts which administer hospitals? It is a bit much to expect the Prime Minister himself to swab the wards.
Lord Warner: My Lords, we know that the Prime Minister is a greatly talented person, but even he probably could not clean all the hospitals along with his day job. What my noble said about the importance of engaging all staff in this area is correct. Healthcare-acquired infection is a problem for everyone. Some trusts have met their waiting list targets and have a good record on MRSA rates, so it can be done. Somerset NHS Trust and Sheffield Teaching Hospitals NHS Trust are two examples. The Government are now fully engaged with staff on this issue. If people read the document Towards Cleaner Hospitals and Lower Rates of Infection, they will see the range of measures that we shall take in full cooperation with the medical and nursing professions to clean hospitals where that needs to be done.
Baroness Platt of Writtle: My Lords—
Lord Grocott: My Lords, we shall have to move on to the fourth Question. We are well into the 24th minute.

International Covenant on Civil and Political Rights
11.24 a.m.
Lord Lester of Herne Hillasked Her Majesty's Government:
Whether they will consult Parliament and the public before reaching a decision on whether to accept the First Optional Protocol to the International Covenant on Civil and Political Rights (enabling complaints to be made to the United Nations Human Rights Committee of breaches of the covenant by United Kingdom public authorities).
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)My Lords, the issue is being addressed in our review of international human rights instruments, the outcomes of which we intend to announce before the Summer Recess. The review was announced to Parliament on 7 March 2002, and has been the subject of various Questions and debate. Although the review was internal to government, representations were invited and received from a wide range of outside organisations and from the public. We have given these careful consideration.
Lord Lester of Herne HillMy Lords, I am grateful for that reply. Can the Minister confirm that every other member of the European Union has accepted the optional protocol, as have the great Commonwealth democracies and 39 countries of the Council of Europe, and that we are the only major European state
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not to have done so? Is there not a powerful case for consulting Parliament on this—at least through its Human Rights Committee—given that Ministers are judges in their own cause if they continue to use their prerogative powers to prevent our fellow citizens having recourse to the United Nations Human Rights Committee for alleged breaches of the covenant by the Government themselves?
Lord FilkinMy Lords, as I said, the review was announced by the noble and learned Lord, Lord Irvine of Lairg, in March 2002. For good reason, its terms of reference were clear: to review the UK's position on international human rights instruments in the light of the experience of the operation of the Human Rights Act. We have had a process that has welcomed and involved representations from others. We have also been clear that the outcomes with the reasons will be made clear to Parliament. Therefore, there will be an opportunity for Parliament, no doubt through the usual mechanisms, to engage with the Government's decision in that respect.
Lord Astor of HeverMy Lords, the majority of rights in the ICCPR are already protected under the Human Rights Act. What important areas are not covered?
Lord FilkinMy Lords, without wishing to add fuel to the fire, as was said in May, I think, most of the covenant's rights and freedoms are protected also by the European Convention on Human Rights. To that extent the covenant adds nothing, as victims of breaches have effective remedies in British courts and the European Court of Human Rights, as the noble Lord, Lord Lester, said. As he also said, in important respects the covenant is wider: it covers the guarantee of equality before the law and non-discrimination is freestanding.
The latter point means that if we signed up to this, an individual could make a petition to the United Nations Human Rights Committee on issues that are not within British law. That raises an interesting constitutional issue about the balance of the advantage or disadvantage in so doing. In practice, the lack of overlap is very narrow indeed. However, there are areas where the United Nations would allow access for issues which are not rights in the UK to be exercised or heard there.
Lord GoodhartMy Lords, does the Minister accept that the provisions of the European convention on discrimination are seriously defective? There is currently no freestanding anti-discrimination clause in the convention. In those cases in particular, there would therefore be considerable advantage, until the European convention is brought up to date, in giving the right of approach to the United Nations Human Rights Committee.
Lord FilkinMy Lords, those are some of the issues that the review, on which we are not yet able to announce a conclusion, explored; in other words, the extent to which

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there are deficiencies in human rights protections in the United Kingdom. Our broad position is that, in the Human Rights Act, our citizens probably have some of the best human rights protections in the civilised world. The noble Lord, Lord Goodhart, is correct that there is not a right at large to take discrimination action. However, it is also debatable whether a right to take discrimination action at large is always desirable. I can, for example, think of arguments about whether there should be a right to take discrimination action because one does not have access to a private Italian beach.
Lord Lester of Herne HillMy Lords, I do not think that the Minister answered my first question, which was whether it is right that we are in "unsplendid isolation" in Europe. Can he tell us what it is about the United Kingdom especially that makes us uniquely unable to accept the optional protocol?
Lord FilkinMy Lords, I shall check Hansard carefully, but I am happy to take on trust that the noble Lord, Lord Lester, was correct in what he said in the introduction to his first supplementary question. I seem to be in the position of explaining that the fact that we are not necessarily in the majority on issues this week does not necessarily mean that we are wrong as a society.
The issue is essentially whether our citizens are suffering significant disadvantage as a consequence of not having a right of access to the United Nations human rights court. That is the real issue, and that is the issue on which the Government will have to come to a conclusion as a result of our review. I think that noble Lords have had a taste of the relatively narrow scope of the issue.
Lord AveburyMy Lords, does the noble Lord agree that it is not just a question of the extent to which these rights exceed those in the European convention, but whether Great Britain is setting a useful and effective example to the rest of the world in complying with our obligations under the ICCPR?
Lord FilkinMy Lords, the noble Lord, Lord Avebury, is correct that one of our aims is to set human rights standards for the rest of the world. Although I do not wish to prejudge the outcome of the review, I am not necessarily convinced that signing the optional protocol would make the most significant difference. What really counts is the reality of what happens domestically and the ability of our courts and of Parliament itself to uphold the rights of our citizens. Those are the fundamentals of the issue.

Energy Bill [H.L.]
11.31 a.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)My Lords, on behalf of my noble friend Lord Sainsbury of Turville, I beg to move that the Commons amendments be now considered.—(Lord Whitty.)
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Moved accordingly, and, on Question, Motion agreed to.

COMMONS AMENDMENTS
[The page and line refer to HL Bill 93 as first printed for the Commons.]

COMMONS AMENDMENTS
Clause 1, Leave out Clause 1

Clause 2, Leave out Clause 2

Clause 3, Leave out Clause 3

Lord WhittyMr Lords, I to move that the House do agree with the Commons in their Amendments Nos. 1 to 3. I shall refer also to Amendments Nos. 8 and 8A, which logically go with them. I shall start by addressing Amendment No. 1, which deletes what was Clause 1 in the Lords Bill, and Amendment No. 31, which the Commons have proposed to replace it. There has been considerable debate in both Houses during the passage of this Bill about security of supply—and rightly so.
It is fair that I should pay tribute to the efforts of some who participated in the debates, particularly the noble Lords, Lord Ezra and Lord Jenkin, whom I see here today, for making contributions on that topic, and who were behind the original amendment on security of supply, which would have placed a requirement on the Secretary of State to,
ensure the integrity and security of gas and electricity supplies.
The Government recognised that that amendment, which was carried against our advice, was well intentioned, but it would have had unintended harmful consequences, creating uncertainty in the market and would have undermined firms' incentives to invest in a timely manner. It would also have had an effect on the independence of the regulator and so on. That was not only our view; it was also the consensus in the industry. We could not therefore accept the noble Lords' amendment.
However, we listened carefully to the concerns expressed in both Houses. In Commons Committee, the opposition parties came forward with an alternative amendment, which we considered a good way to address the concerns expressed and to reflect in legislation the Secretary of State's ultimate responsibility for security of supply and her accountability to Parliament for its delivery, without causing unintended consequences in the existing regulatory framework. So, we tabled an amendment on similar lines, which was accepted on Report in the Commons and appears as Amendment No. 31 today.
Amendment No. 31 requires the Secretary of State to publish an annual report on the availability of electricity and gas for meeting consumer demand in Great Britain and to lay that report before Parliament. As we signalled in the Commons, it is our firm intention that there should be a debate on the report in Parliament each year.

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The report would have to cover energy security in both the short and the long term. By "the short term", we mean the next year or so, and by "the long term" we would talk generally about a span of the next 10 years or so, although different aspects of the report may lend themselves to different timescales. For example, the NGC currently forecasts plant margins seven years ahead in its seven-year statement, whereas there are government plans for the renewables obligation, which extend well beyond 10 years.
The amendment specifies that the report must cover three areas in particular: generating capacity—the plant margin—the availability of gas infrastructure, which we have defined as including pipelines and terminals; and the availability of electricity and gas networks to get the supplies to consumers. That list is not exhaustive. It is subject to the more general requirement that the report must deal with the availability of gas and electricity. This will necessarily mean that we have to consider some wider issues.
The amendment also specifies that the report is to be prepared jointly by the Secretary of State and Ofgem. This reflects the complementary roles that the Secretary of State and Ofgem have in relation to security of supply. There are some areas—for example, the enforcement of licence conditions which are properly delegated to the independent regulator, and the necessary expertise therefore lies with Ofgem.
Amendment No. 31, which replaces the previous amendment, is a proportionate and appropriate way of emphasising the Secretary of State's ultimate responsibility for security of supply. It would enable Parliament, industry and the public to scrutinise that assessment and to call the Secretary of State to account. It has the support of industry and had the support of all parties in the Commons. So, we have come a long way since the original discussions to something like a consensual position on that.
Amendments Nos. 2, 3 and 8 would impose various reporting duties on the Secretary of State. Your Lordships will remember that during our first debate on Clauses 2 and 3 I pointed out that it was not necessary to impose reporting requirements in legislation. I seem to make that point in most legislation that I deal with in this House. The Government are in fact already required to publish a yearly report on progress made towards meeting the energy White Paper's objectives.
We said clearly in the White Paper that the Government would not achieve the targets without a wide degree of support and participation by a range of stakeholders. So we have a vested interest in ensuring that this is all open to public scrutiny. Therefore, we welcome the general duty in the Sustainable Energy Act 2003. I believe that we now have a more informed debate on energy. We shall not necessarily agree on everything, which I suspect will become apparent in the course of today, but we have had a more informed debate since the publication of the White Paper. The report will provide a further basis for that discussion, as will subsequent reports. As a result of concerns
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expressed here and in the Commons, we proposed a new clause that would encapsulate the essence of Clauses 2 and 3. The main difference is that our new clause amends the general reporting requirement in the Sustainable Energy Act, so that the relationship between new and existing duties is completely transparent. It will require information to be provided on precisely the same list of low-carbon energy sources as is set out in existing Clause 2, with the addition of coal-mine methane, which I know the noble Lord, Lord Jenkin, and others have been concerned with. The new clause goes further, with item (k) broadening the remit to include any other source of energy that may help to reduce carbon emissions.
The new clause departs from the previous Clause 2 in other ways, but only to ensure that the provision is workable. As it stands, Clause 2 would impose unreasonable demands on information requirements, but as reconstituted it is a more realistic basis for that report.
As regards Clause 3, the original amendment regarding energy efficiency has been incorporated into the new clause. The text has been adjusted to make the strongest possible link with the Sustainable Energy Act, again for transparency and consistency. The report will set out steps to meet the energy efficiency aims for residential accommodation in England and Wales that have been published as a result of the requirements of the Sustainable Energy Act.
I am sure that some noble Lords will point out that the statutory energy efficiency aim is 3.5 million tonnes of carbon to be saved from household energy efficiency in England. In practice, we will of course report back on measures taken throughout the UK. So we shall be looking at the overall UK aim, which we have set at 4.2 million tonnes of carbon. That is different from the 5 million tonnes of carbon stipulated in the original clause, the justification for which was argued by the noble Lord, Lord Ezra, and others, on the basis that that was the figure in the White Paper. In fact, the White Paper suggested around 5 million tonnes of carbon, based on the carbon savings that we expected to be delivered by measures already in place. More detailed assessment has changed that view. In terms of the amount deliverable under existing measures, we think the figure of 4.2 million tonnes of carbon is more realistic.
I say in passing that the total amount that we now believe is deliverable in energy efficiency subsuming that 4.2 million tonnes of carbon, is actually 12 million tonnes of carbon, rather than the 10 million tonnes that was in the White Paper. Therefore, adjustments have been made more than compensating in other parts of energy efficiency, for example, as a result of the energy efficiency commitment being extended through to 2011.
The new clause proposed by the Government covers the key issues that were in the pre-existing Clauses 2 and 3, and it will provide a more comprehensive and understandable reporting framework. I hope that noble Lords will be prepared to accept these amendments.

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Moved, That the House do agree with the Commons in their Amendments Nos. 1 to 3—(Lord Whitty.)
Lord Jenkin of RodingMy Lords, I am grateful to have an opportunity to come in early in the debate. I will comment later on some of the points that the noble Lord, Lord Whitty, has made.
I begin, however, by offering an apology to Ministers and to the House. On Monday 12 July, there was a Question about the Prime Minister's policy on nuclear energy. I asked:
Why have DTI Ministers removed from the Energy Bill the only two words which would have made that a reality? The words `including nuclear' do not appear in the government amendments".—[Official Report, 12/7/04; col. 1013.]
I confess that I was wrong. Amendment No. 8, before Clause 84, subsection 2(1A)(b) contains the words,
including sources of nuclear energy,
that should be addressed in annual reports under Section 1 of the Sustainable Energy Act 2003.
The noble Lord, Lord Whitty, has reminded the House of what took place when the Bill was in this place, and we added Clause 2 with the reporting obligation and it was passed after a Division. It expressly included nuclear power as one of the energy sources on which research and skills should be reported annually. The noble Lord, Lord Whitty, and his colleagues will remember that throughout the Committee stage, noble Lords repeatedly came back to the question of the nuclear option.
We then read that Clause 2 had been taken out in another place, but it was not until I saw the full list of Commons amendments on Tuesday this week that I realised that the clause had been replaced, with some amendments, as described by the noble Lord, Lord Whitty, by what is now Commons Amendment No. 8. Without wishing to make any excuses, I do not believe that I was alone in the House in failing to have realised what had happened. When the noble Lord, Lord Davies of Oldham, replied to me, he could have clearly said, "But it is still in the Bill!" but he did not do that. I suspect that he may not have been aware of what happened in another place.
The Government's new clause, which appears now as Commons Amendment No. 8, had a curious history in the other place. It was grouped with the first group of amendments taken in the Commons Committee stage at col. 4 on 20 May. So far as I can see, there was no mention made of it at all in the debate. In another place, new clauses—which is what it was—are taken at the end of the Committee stage. This new clause came up on the last day of the Standing Committee—22 June. Because in theory it had already been debated, it was added to the Bill without debate. What happened after that is perhaps the cause of my confusion. I hope that the House might have some sympathy.
We had added the clause as Clause 2. It now comes back to this House as a new clause, the clause before Clause 84. I have made inquiries of the authorities in another place, and apparently it is Ministers, and not officials, who decide where a new clause is to be
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inserted in the Bill. I confess, and I again suspect that I might not be alone, that I did not read the entire Bill as it went to Report stage in another place. I certainly did not read what had then become Clause 82. That was why I accused the Minister of having removed the references to nuclear power, and I can only repeat my apology to the Ministers and to the House. Perhaps I might be forgiven.
11.45 a.m.
The words,
including sources of nuclear energy,
are clearly there, and I warmly welcome them. It is the first time that it has been written into the Bill. Some attention is being paid to keeping the nuclear option open, and we now know that the Prime Minister was instrumental in ensuring that went into the White Paper.
Before I sit down, I accept warmly the new "security of supply" clause, which is Commons Amendment No. 31. I welcome Ministers' recognition that security has become the number one concern. This new clause is a useful step on the road to ensuring that the lights do not go out in the UK.
I also welcome the Minister's assurance that the annual reports will be debated—in government time— in both Houses of Parliament. I hope that the Minister will give that firm assurance. The most important thing is that both Houses are able to debate the annual reports.
Baroness Miller of HendonMy Lords, as we said the first time we had occasion to consider the Bill, we certainly never opposed what it was trying to achieve. As often, the devil is in the detail, and we had concerns not so much about what was in the Bill as about what was left out of the Bill. We were all pleased when we passed the Bill on to the other place, because we believed that it had been greatly improved by the amendments that we made and that were supported by Members from all sides of the House. I am most grateful to the Government that those concerns have been listened to and that they have made concessions to address some of the issues in question, even where they do not go quite as far as we would have liked. We are grateful for what we have achieved.
The security of supply was a particularly pressing problem, which certainly needed consideration. Through our energy debates, we have always highlighted that the aim behind energy policy should be centred on the reduction of carbon emissions. I am glad to see that Amendments Nos. 8 and 31 from the other place will ensure that there are regular reports on energy source technologies including the all-important, carbon-free nuclear option and the annual report on the security of supply. They are even more important now in view of the diminishing gas supplies mentioned by EU Select Committee B and the recent ripples through the oil prices.
I have one concern, and I hope that the Minister will be able to say whether he can assure the House that when this report comes out we will be able to have an

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annual debate on the security of supply and those made under the Sustainable Energy Act 2003. After all, that would be the opportunity to consider these issues by debating them on the Floor of the House. That would be a matter of great significance to all Members.
On Question, Motion agreed to.
Lord Jenkin of RodingMy Lords, can I make a point of order— The noble Lord, Lord Ezra, has an amendment down to one of the amendments in this group. I hoped to hear from him at this stage. Is that not right?
The Chairman of CommitteesMy Lords, that is Amendment No. 8A, which will be taken as Amendment No. 8 when Amendment No. 8 is called.

COMMONS AMENDMENTS
4 Clause 12, page 9, line 32, leave out from "policy" to end of line 39
5 Clause 12, page 10, line 18, at end insert—
(3A) In the case of each designated installation, designated site or designated facility, it shall be the duty of the NDA, in carrying out its function by virtue of section 10(1)(e)—

to have regard, in particular, to the extent to which the person with control of the installation, site or facility was doing anything falling within subsection (3B) prior to its designation; and

to consider what obligations in relation to the doing of anything falling within that subsection should be imposed on any person with whom the NDA is proposing, in connection with the discharge of any of its responsibilities in relation to the installation, site or facility, to enter into a contract for that person to provide services.

(3B) What falls within this subsection is anything that is done for the purpose of giving encouragement and other support to

activities benefiting the social or economic life of communities living near the installation, site or facility; or

activities producing other environmental benefits for those communities.

(3C) Where the NDA is proposing, in connection with the discharge of any of its responsibilities in relation to a designated installation, designated site or designated facility, to enter into a contract with any person for him to provide any services, it shall be the duty of the NDA, before entering into that contract—

to require that person to produce his proposed strategy for the procurement of the goods and services that he will need to procure for the purpose of carrying out his obligations under the contract; and

to consider the likely effect of the implementation of that strategy on the economic life of communities living near the installation, site or facility.

6 Clause 13, page 11, line 44, leave out subsection (5)
7 Clause 25, page 23, line 39, at end insert—
"() In determining—

whether to make a grant under this section to the NDA, and

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the amount of such a grant,

the Secretary of State must have regard, in particular, to the extent to which he considers that the NDA should exercise its power to make grants or loans of the kind mentioned in section 13(2)(c) in order to mitigate the effects of the cessation (whether before or after designation) of the operation of a designated installation.
Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 to 7.
The speed of proceedings also took me a bit by surprise, but we will deal with Amendment No. 8A later. I accept the gracious apology made by the noble Lord, Lord Jenkin of Roding, particularly on behalf of my noble friend Lord Davies of Oldham. I would not go as far as the noble Lord in criticising the proceedings in another place, but we can all understand how these matters arise. We will have a debate, and all government reports are debated in government time. I do not think that undermines the position of business managers, and it is hopefully a sufficient reassurance.
This group of amendments relate to the NDA clauses of the Bill and they cover three areas: the socioeconomic support for local communities; the laying of the NDA's strategy and plan before Parliament; and some minor drafting clarifications.
The Government recognise the importance of social and economic support for local communities, which are currently heavily dependent on the nuclear industry. We had a number of debates in Committee and in the House on that matter. We are certainly committed to ensuring that both the NDA and the site operators continue to play a full role in their communities.
The Bill has always provided for the NDA to give encouragement to and support for the social and economic life of local communities. Following representations made by noble Lords opposite, we did expand the scope for NDA activity to cover support for activities bringing environmental benefits to these communities.
At Third Reading in this House two more amendments were made to strengthen further the NDA's remit in this regard, requiring the NDA to give proper weight to its employment and contractual arrangements and to engender local confidence that the levels of support given by existing operators will be maintained and enhanced. The Government accepted the general purpose of these proposals. But the drafting of these amendments was a little ambiguous in legal terms and generated a risk that the NDA could be hindered in the discharge of its principal clean-up of responsibilities. The Government therefore introduced new amendments in another place which clarified the purpose of the original proposals while removing the risk that the NDA could be deflected.
Amendment No. 5 therefore replaces the drafting deleted by Amendment No. 4 to impose two new duties on the NDA: first, to have regard in particular to the extent to which the previous operator was

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supporting such activities before designation to the NDA and, secondly, to consider the obligations that should be imposed on its site operators or management contractors in respect of such activities.
That reflects the reality that the NDA will deliver its social and economic support predominantly through its site operators and its contractors, which are operating in the local community and will have the biggest impact. It will control this through its contractual arrangements. The amendment requires the NDA to show that it has given due consideration to local community support issues in entering into such contracts, with particular reference to current levels of local community support by the current site operators.
The NDA will therefore have to consider the extent to which bidders will support social, economic and environmental life in local communities having regard in particular to the previous level of support. The underlying objective here is to maintain or enhance that support for as long as NDA's site operators remain significant economic players in the local community. Obviously, for some sites such as Sellafield and Dounreay that will be for many decades to come. These duties are focused on the activities which BNFL and UKAEA currently carry out worth several million pounds a year. They are very valuable and valued by those communities.
In subsection(3C) the amendment also puts a duty on the NDA to require its site operators or contractors to have a procurement strategy for carrying out work at the site and to consider the effect of this on the local community before entering into the contract.
This addresses the underlying point of the amendment agreed by your Lordships to ensure that the NDA considers the contribution its employment and contractual arrangements can make to local communities. In practice it will be the site operators and managers who will meet those objectives in this regard. They will be making the decisions and the development of the supply chain which will impact on the economic life of the local community. I think the amendments make that clear.
Amendments Nos. 6 and 7 clarify that the provision is not to be a limitation on the other matters to which the Secretary of State may legitimately have regard when determining the amount of grant under Clause 25. The Secretary of State will need to consider in the round the NDA's plan for such activities and all other functions. In addition, as Clause 25 deals with the question of grants it is proposed to make the amendment in this clause rather than in Clause 13 which principally concerns the power of the NDA itself.
We are all agreed that the NDA must have a crucial responsibility to discharge its activities for the benefit of the nation—securing nuclear decommissioning and clean-up. We must not allow it to be deflected from that path. We also recognise that there are areas which are heavily dependent on the nuclear industry for employment. I mentioned earlier the west Cumbria and
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Caithness areas. As part of its corporate social responsibility, the NDA must take on the responsibilities of its predecessors.
Amendments Nos. 37 and 38 were agreed in response to Opposition proposals in the Commons to increase parliamentary oversight of the NDA's activities. I hope that they will be welcomed in this House. The key documents relating to the NDA's long and short-term plans for cleaning up and operating its designated sites will be made formally available to Parliament.
Amendments Nos. 39, 40 and 41 are three minor drafting changes which have arisen from a detailed check of the Bill. They are entirely inconsequential as regards effects and remove ambiguities.
Moved, That the House do agree with the Commons in their Amendments Nos. 4 to 7.—(Lord Whitty.)
Lord Jenkin of RodingMy Lords, I very much welcome these amendments. I moved the original amendments with all-party support. It is very good to see that those measures have been incorporated into the Bill.
I make two points. The first is that in dealing with this matter at earlier stages in this House, Ministers made much play with the problem of interfering with the activities of the regional development agencies and sought to argue that the NDA's activities must not cut across and contravene the general policies of the regional development agencies. Now that this duty has been inserted into the Bill, it will require a good deal of careful administration by the regional development agencies in the areas concerned and by the NDA to make sure that they work extremely closely together. I can understand the anxieties of the RDAs in knowing that someone else has the same sort of task. I welcome the fact that the NDA has been given this additional responsibility.
The second point is that the problems could be substantially reduced if it was recognised that the existing nuclear sites would be admirable places to build new nuclear power stations. We have made that point on a number of occasions. It is coming closer. As the noble Lord, Lord Tomlinson, indicated on Monday at Question Time, the Prime Minister's statement sounded like a change of policy and read as such. Many of us would have agreed with him that we hoped that it was a change of policy. However, we are not going to get that now. If that could happen, it would certainly meet the requirements of the people who are facing unemployment and disruption as a result of the winding down of the existing nuclear establishments.
My main point is about the RDAs and the NDA. That is going to be the key to making the provisions work.
Baroness Miller of HendonMy Lords, we on these Benches welcome the amendments. The inclusion of the duty to ensure that the NDA will give encouragement and other support to activities benefiting the social and economic life of communities

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living near to a site, particularly those that will provide environmental benefits, is very reassuring. There is also the duty to produce these measures within the strategies which they create or which they require a contractor to provide.
As my colleagues in another place have said and as the Minister mentioned a few moments ago, given the moneys allocated to and deployed by the NDA, and given that it will be doing so much important work, it is important that Parliament keeps an eye on what is going on through the publication of the reports.
I also welcome the measure to ensure that these publications are provided directly to the Scottish Parliament considering the number of energy installations there are north of the Border.
Lord JoplingMy Lord, I believe that it was my amendment with which noble Lords agreed when we last debated these matters. Anyone who has worked for a long period in this building knows that, relatively speaking, amendments drawn by amateurs rarely attain the approval of the parliamentary draftsman in Whitehall. I am not remotely surprised, therefore, to see that the wording of the amendment has had to be changed.
Cumbria County Council first raised this issue. I am not sure whether it now has everything it wanted because it has not yet been in touch with me. But I want to add my welcome to that expressed by my colleagues.
Noon
Lord WhittyMy Lords, I am grateful for the expressions of support for these changes in the Bill which address the basic problems outlined at earlier stages by noble Lords, some of whom have spoken again today.
The noble Lord, Lord Jenkin, asked about the regional development agencies. We were anxious that the original phrasing of the amendment might suggest that the more strategic role, one that might almost create a sub-regional RDA, was an ambiguity in the original drafting. The way it is now worded does not run that danger, but I agree wholeheartedly that it ensures close co-operation between the RDAs in those areas where there are substantial employment implications.
I do not think that I need to go into the question of future nuclear sites. As has been made clear, the Prime Minister is not enunciating new policy, and I agree with him. In any case, were we to take the nuclear option at some later stage, the Nuclear Decommissioning Authority would not be the body to run those operations. Therefore it would not be appropriate to reflect that in this Bill, even if I were to agree with the basic point made by the noble Lord, Lord Jenkin.
In relation to the Scottish Parliament, I am not entirely sure what should appear in UK legislation, but in practice I am sure that the Scottish Parliament will need to be informed. As the noble Baroness, Lady Miller, pointed out, Scotland has a number of significant nuclear sites.
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I turn to the questions raised about west Cumbria. I understand that the redraft has been discussed with Cumbria County Council, whose representatives say that they are happy with it. I hope that everyone is now reasonably appreciative of the clauses now agreed.
On Question, Motion agreed to.

COMMONS AMENDMENT
8 Before Clause 84, Insert the following new Clause—"
"Reports under section 1 of Sustainable Energy Act 2003

Section 1 of the Sustainable Energy Act 2003 (c. 30) (annual reports on progress towards sustainable energy aims) is amended as follows.

After subsection (1) insert—

(1A) The report must include, in particular, all such information as the Secretary of State considers appropriate about—

things done during the reporting period for the purposes of the development or the bringing into use of any of the energy sources or technologies mentioned in subsection (1B);

things done during that period for the purpose of ensuring the maintenance of the scientific and engineering expertise available in the United Kingdom that is necessary for the development of potential energy sources (including sources of nuclear energy); and

things done during that period for the purpose of achieving the energy efficiency aims designated under sections 2 and 3.

(1B) The energy sources and technologies referred to in subsection (lA)(a) are—

clean coal technology;

coal mine methane;

biomass;

biofuels:

fuel cells;

photovoltaics;

wave and tidal generation;

hydrogeneration;

microgeneration;

geothermal sources; and

other sources of energy, and technologies for the production of energy, the use of which would, in the opinion of the Secretary of State, cut the United Kingdom's carbon emissions.

(1C) The references in subsection ( IA) to things done during the reporting period include references to proposals of the Secretary of State published during that period.
(3) In subsection (2) for "subsection (1)" substitute "subsections (1) to (1C)"
Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8. I spoke to this amendment with Amendment No. 1.
Moved, That the House do agree with the Commons in their Amendment No. 8.—(Lord Whitty.)
Lord Ezrarose to move, as an amendment to Commons Amendment No. 8, Amendment No. 8A:
8A Before Clause 84, Line 19. at end insert—
(d) things done during that period and proposed to be done to secure carbon savings from domestic energy efficiency of 5MtC per annum by 2010 and a further 5MtC per annum by 2020.
The noble Lordsaid: My Lords, the purpose of the amendment, as is made clear on the Marshalled List, is to add to the list of subjects to be covered in the reports under Section 1 of the Sustainable Energy Act 2003 by including carbon savings from domestic energy efficiency. I need hardly remind noble Lords of the great importance which the Government have attached throughout the period since the publication of the energy White Paper to improving energy efficiency. Together with their emphasis on renewables, these are the two main planks of the Government's policy to achieve the reduction in carbon emissions to which they have committed themselves under Kyoto and in other ways.
This matter has figured largely in the debates on the Bill. Indeed, at Third Reading in the other place, the Secretary of State for Trade and Industry referred to it:
We will review our progress on the energy efficiency aim for the household sector in the review of the climate change programmes later this year, and in the 2007 review announced in the energy White Paper action plan. If we find that we can go further than we set out in the action plan, we will do so—[Official Report, Commons, 13/7/04; col. 1366.]
I personally am firmly of the opinion that the Government should do so, and that they should revert to the figures mentioned in the energy White Paper and which are set out in the amendment I have proposed. Those figures were confirmed no fewer than 15 times—I repeat, on 15 separate occasions—by Ministers and senior civil servants as being the energy saving objectives for the domestic sector on which the Government have set their sights. Therefore, in the Energy Bill, which is intended to reflect what was set out in the energy White Paper, I think it is wholly desirable that reference be made to the objectives and that reports be produced annually on what has been done to achieve them, bearing in mind what the Secretary of State had to say about the Government wanting to go further than their recently announced reduced figures.
I hope that the House and the Government will be prepared to accept this small amendment so that we can reconfirm what the Government have already stated on so many separate occasions; that is, their commitment to achieve these savings of carbon emissions in the energy sector. I beg to move.
Baroness ByfordMy Lords, I support Amendment No. 8A, so ably moved by the noble Lord, Lord Ezra. Like the noble Lord, I am slightly mystified about why the Government have not included the higher targets. It appears that the Government have discussed what they think can be achieved and have set their target accordingly rather than pushing for the higher figure that they had originally hoped to achieve. However, I
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shall not repeat what has been said by the noble Lord, Lord Ezra, because he has defined the point very clearly.
Perhaps I may draw the attention of noble Lords to the fact that Early Day Motion 96, which expressed strong support for the higher 5MtC target for residential energy, was signed by 338 honourable Members, representing over half the elected Chamber. Since the clause was removed in Committee, some 229 MPs have signed Early Day Motion 1341 in support of the higher target. In addition, four of the MPs who voted to remove the clause in Committee have now signed this Early Day Motion, which must beg the question why the Government are refusing to accept it. Given that the Government won that vote by only two, it could be argued that the four MPs who have now signed the Early Day Motion have had second thoughts, there is now a Committee majority in the other place for Clause 3. Some 120 Labour MPs have issued press releases to their local papers supporting the higher target, and it is important that noble Lords are made aware of that.
In our earlier discussions we pressed for the higher target, and my noble friend Lady Miller wanted to ensure that it was reached. The Government's own sustainable energy policy website now lists CO2 savings as specified in the proposed amendment—as 5MtC per annum by 2010, and a further 4MtC by 2020 as commitments and objectives. It is hugely important that the noble Lord reconsiders this issue.
My noble friend highlighted the document Policy in Confidence, a draft written on 2 March 2004 of the Government's energy efficiency implementation plan. She drew the attention of noble Lords to paragraph 96:
However, the most recent update of the United Kingdom's energy projections has highlighted the fact that changes to our baseline projections mean that the existing package of measures may no longer be sufficient to keep us on track to deliver the expected absolute.
Concerns are being widely expressed. For the Government to settle for the lower target is very regrettable. I shall listen with interest to what the noble Lord has to say in giving the reasoning behind the Government's refusal to accept the amendment.
Lord Jenkin of RodingMy Lords, I would like to make a general point. It is relatively easy to establish standards for new buildings and dwellings which would reduce considerably the amount of energy necessary to heat them. The Minister's department has progressively tightened up on that—indeed, when I was Environment Secretary many years ago, we were already working on that. That is one of the main instruments whereby one can reduce carbon emissions in the domestic sector. However, that only takes one so far, because the vast majority of buildings are in existence.
This is to some extent linked to issues of fuel poverty. Very often those in fuel poverty, who find the greatest difficulty in paying their energy bills, are least able to invest in the kind of measures that are necessary to reduce their energy consumption. The Minister's

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department therefore operates a series of policies to try to target people in those circumstances and offer them free help with insulation and other measures.
My inquiries have elicited that when Defra seeks to identify specific groups of people who might be the target of advertising or individual approaches to tell them what is on offer for instance people suffering from disabilities, on certain benefits or suffering from particular health problems, such as asthma the other authorities involved, including the social services and health authorities, point blank refuse to give Defra information about those people. The department is left with only general, blanket advertising—leaflets into letterboxes and television advertisements and so on. It is impossible for it to target the information about the help and the subsidies available because other parts of government, for reasons which as a former Secretary of State for Health and Social Security I entirely understand, are precluded from handing over information that might help Defra.
I suspect that when the targets were set for emissions and fuel poverty, it was hoped that there would be a much bigger programme of assisted insulation, if I may so describe it, through targeting vulnerable groups. I suspect that the Minister and his department, because they find themselves unable to do this, have perforce been driven to reduce the targets.
It would help the House if the Minister could indicate how the Government intend to address the problem. There are far more—"millions—of existing dwellings which could benefit, both from the point of view of the comfort of the inhabitants and from that of emissions, which is addressed by the noble Lord, Lord Ezra's amendment, if somehow they could be targeted. This has not happened and therefore the targets have had to be reduced; that seems to me a pity.
Lord WhittyMy Lords, I have some sympathy for many of the points made, but I do not think that this is an appropriate amendment. The noble Baroness, Lady Byford, referred to the activities of Members in another place, signing EDMs and press releases. Well, that is what they do, but it is not the basis for us legislating. We must decide what is appropriate to put in legislation and which piece of legislation it is appropriate to put it in. That is what we are debating under this amendment.
Baroness ByfordMy Lords, I am somewhat mystified by that, because clearly some Members of the Committee had a change of heart. That is why I raised the matter—"it was not a flippant thing. Two Members subsequently voted in a different fashion from the way in which they had voted in Committee, which is why noble Lords should be aware of what went on.
12.15 p.m.
Lord WhittyMy Lords, the noble Baroness has been in politics for enough time to know that a vote is a vote at the point at which it is taken, and that is what changes the nature of the Bill. The argument in Committee about why we should not put this
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provision here was partly concerned with the issue of duplication. There is already a requirement in the Sustainable Energy Act that we set an aim. It is the size of that aim that is under dispute, but we already have the obligation to set it.
The aim was set at 4.2 million tonnes of carbon savings in the energy efficiency action progress policy to which the noble Lord, Lord Ezra, referred. I recognise that there is some disappointment that the figure is not as high as the 5 million tonnes of carbon mentioned in the Energy White Paper. Of course, when we come to legislate, we are under an obligation to ensure that that has happened and that we are confident of the measures for that to happen. Looking at the existing measures, including some new ones, 4.2 million tonnes is a more realistic figure—as I said in the earlier debate on Amendment No. 8.
We have also considered the other aspects of energy efficiency in the White Paper. Particularly because of the adoption of the energy efficiency commitment in a forward period during the next six years, we considered that some of those targets could be raised. The total contribution of energy efficiency towards matching supply and demand and reducing carbon is actually higher than was set out in the White Paper. Presumably, noble Lords would not object to that and nor would the industry or the campaigners on these fronts. It is important to recognise that we must be realistic about the time-scale in which different parts of the energy efficiency programme can meet those objectives.
I turn now to the noble Lord, Lord Jenkin's point about the stock and the flow of buildings. Clearly, it is easier to build in better energy efficiency measures in new and refurbished buildings than it is to address the stock of buildings. That is why progress on that front is perhaps a bit slower than people would otherwise hope. That is partly reflected in the fairly robust calculation used to reach the 4.2 million tonnes figure for the United Kingdom as a whole.
I was glad that the noble Lord, Lord Jenkin referred to the fuel poverty programme, although some of the things that he said on that are not right. Clearly the fuel poverty programme makes a significant contribution to energy efficiency. I hope that the noble Lord, Lord Jenkin, noticed that in the Chancellor of the Exchequer's Statement on Monday there was a significant increase in the resources allocated to Defra for the fuel poverty programme. This should help us to get closer to the targets for taking people out of fuel poverty but also, as the noble Lord, Lord Jenkin says, have an energy efficiency effect. It will help us to increase resources for energy efficiency.
The Government are committed to putting more resources into these fields. Nevertheless, it is the case that by 2010 our best guess of how far existing policies can take us on the building front is 4.2 million tonnes of carbon saving. However, there is a better picture on the industrial, commercial and public sector aspects of energy efficiency savings.
I would like to correct, for the record, one other thing that the noble Lord, Lord Jenkin said. It is true that there are some inhibitions in the passing over of

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information from health authorities and social services to other government departments. However, with the agreement of the householder that information can be passed on. In many local authorities, there is an arrangement whereby names are passed on from the health services to the scheme managers of the fuel poverty programme. As far as possible under the understandable restrictions other departments of government are involved—local authorities and health authorities in particular—in passing on information where the householder agrees.
Lord Jenkin of RodingMy Lords, I am grateful for that—it is helpful—but can the Minister indicate what proportion of vulnerable households can be approached through those joint arrangements? My information is that it is very few of them and that most of the authorities do not agree to give the information.
Lord WhittyMy Lords, the noble Lord is correct that performance on that front is patchy, but in those health authorities where it has been pursued more than in others, there is a significant number. The gateway to the receipt of fuel poverty help is through benefits information and through application. The attention of households is drawn to these provisions by a number of interfaces with public bodies. Health authorities and the Department of Health have asked all their bodies to ensure that people are aware of these facilities. Health visitors and social workers can pass on the information, but only with the explicit agreement of the householder. That would not measure the total number of applications because they are quite often made at the suggestion of a health visitor or social worker, but it is the householder who applies.
So there is joined-up government in this regard. It is not as good as it should be, but the fuel poverty programme has been over-subscribed. We still have a long way to go to deal with everyone who comes in through the system and is identified by the various other services.
The House should recognise that the total contribution of energy efficiency reflected in the energy efficiency action plan is more ambitious than in the White Paper. We are being sensible in ensuring that the individual subsections are robust and cautious because we are dealing with a statutory obligation. Certainly, as Patricia Hewitt said, we would wish to go further on all fronts, but we think we can reasonably guarantee that this one will be met. We have therefore included that as our obligation for specifying the statutory aim.
Both for the reason that this is not a rolling back of the contribution of energy efficiency to our energy policy—quite the reverse—and for the reason that there is already an obligation in another piece of legislation, I hope that the noble Lord will not pursue his amendment.
Baroness ByfordMy Lords, before the noble Lord sits down, he did not accept in his reply that setting the
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lower target may well discourage people from achieving a higher target. I am quite surprised that the Government are reluctant to accept the amendment because it will send out the wrong vibes to the wider audience out there. I am most disappointed. I shall wait to hear what the noble Lord, Lord Ezra, has to say. In truth, I do not think the Minister has answered the questions put to him as to whether the higher figure should be accepted.
Lord EzraMy Lords, I am also very disappointed that the Minister has not been able to accept the amendment. When the figures for energy saving were published in the energy White Paper, the proposals were enthusiastically supported by all those who follow these matters and were, of course, many times reiterated by Ministers and senior officials.
This is, indeed, an objective; it should be restated as an objective and we should know what we are doing to achieve it. I quite agree that the Government have so planned matters that overall energy saving could be rather larger than first envisaged, but there is notorious inefficiency in the use of energy in the domestic sector and a determined effort has to be made to improve it. Inserting the amendment in this important Bill would have galvanised efforts. However, the Bill contains many measures that we strongly support and I do not wish to delay it in any way. So, with much regret, I beg leave to withdraw the amendment.
Amendment No. 8A, as an amendment to Commons Amendment No. 8, by leave, withdrawn.
On Question, Motion agreed to.

COMMONS AMENDMENT
9 Before Clause 84, Insert the following new Clause—
"Microgeneration

The Secretary of State—

must prepare a strategy for the promotion of microgeneration in Great Britain; and

may from time to time revise it.

The Secretary of State—

must publish the strategy within 18 months after the commencement of this section; and

(b) if he revises it, must publish the revised strategy.

In preparing or revising the strategy, the Secretary of State must consider the contribution that is capable of being made by microgeneration to—

cutting emissions of greenhouse gases in Great Britain;

reducing the number of people living in fuel poverty in Great Britain;

reducing the demands on transmission systems and distribution systems situated in Great Britain;

reducing the need for those systems to be modified;

enhancing the availability of electricity and heat for consumers in Great Britain.

Before preparing or revising the strategy, the Secretary of State must consult such persons appearing to him to represent the producers and suppliers of plant used for microgeneration, and such other persons, as he considers appropriate.

The Secretary of State must take reasonable steps to secure the implementation of the strategy in the form in which it has most recently been published.

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For the purposes of this section "microgeneration" means the use for the generation of electricity or the production of heat of any plant—

which in generating electricity or (as the case may be) producing heat, relies wholly or mainly on a source of energy or a technology mentioned in subsection; and

the capacity of which to generate electricity or (as the case may be) to produce heat does not exceed the capacity mentioned in subsection.

Those sources of energy and technologies are—

biomass;

biofuels;

fuel cells;

photovoltaics;

water (including waves and tides);

wind;

solar power;

geothermal sources;

combined heat and power systems;

other sources of energy and technologies for the generation of electricity or the production of heat, the use of which would, in the opinion of the Secretary of State, cut emissions of greenhouse gases in Great Britain.

That capacity is

in relation to the generation of electricity, 50 kilowatts;

in relation to the production of heat, 45 kilowatts thermal.

In this section—

"consumers" includes both existing and future consumers;
"distribution system" and "transmission system" have the same meanings as in Part 1 of the 1989 Act;
"fuel poverty" has the same meaning as in section 1 of the Sustainable Energy Act 2003 (c. 30);
"greenhouse gases" means—

carbon dioxide;

methane;

nitrous oxide;

hydrofluorocarbons;

perfluorocarbons;

sulphur hexafluoride;

"plant" includes any equipment, apparatus or appliance."
Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. In doing so, I shall speak also to Commons Amendments Nos. 21 and 35. I hope that the noble Lord, Lord Ezra, will be slightly more pleased with this position of the Government than he was during the previous debate.
We fully agree that microgeneration has a key role to play in our efforts to reduce greenhouse gas emissions. We have lent our support to a number of initiatives. We have recently legislated to make it easier for small renewables generators to receive renewables obligation certificates. We have established with Ofgem the distributed generation co-ordination group, which has a workstream looking specifically at microgeneration. In financial terms, we already support microgeneration to the tune of£35 million through our funding of the major PV Demonstration
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programme and our Clear Skies initiative, which provides grants towards the costs of residential or community renewables projects.
The clause originally proposed raised some concerns—in particular the inclusion of a duty to set specific targets for small-scale generation of electricity which would have cut unhelpfully across other commitments in the White Paper. There were also some drafting issues around that, particularly the definition of "microgeneration". It was for those reasons that my colleagues in the Commons proposed the deletion of the clause inserted by your Lordships.
But it is clear that there are distinct benefits to a clear, joined-up strategy for microgeneration. Although I do not think, in general, that we need legislation for that, there needs to be a legal duty to establish a strategy which gives the industry and potential investors in this technology new confidence. Amendment No. 9 would impose a clear duty on the Government to publish a microgeneration strategy within 18 months of the commencement of this section of the Bill, and then to take reasonable steps to ensure implementation.
For technical reasons, Amendment No. 35 excludes the obligation from Northern Ireland. As energy is a devolved matter, it would not be appropriate to extend the strategy across to that administration unless there was separate Northern Ireland legislation. But we will, of course, keep in touch with our Northern Ireland colleagues on this issue.
Moved, That the House do agree with the Commons in their Amendment No. 9.—(Lord Whitty.)
Lord EzraMy Lords, perhaps I may express my appreciation of the amendment. When the Bill was in this House we spent much time debating the subject of microgeneration as being potentially a substantial contributor to the achievement of the Government's objectives in reducing carbon emissions.
I had the benefit of a meeting with Mr Stephen Timms, the Minister for Energy, and explained to him the reasoning behind our amendment, even though I accepted that support for microgeneration had been included in the White Paper. He was very sympathetic to this concept but he drew attention to the problem of the targets that had been included, to which the noble Lord, Lord Whitty, referred. I accept that the Government were faced with that difficulty, but I was very pleased that he accepted the concept that the Government should develop a strategy for microgeneration.
It is an area in which I have been much concerned— I declare an interest in it—and I can say that, with this provision, the sector will be only too pleased to assist the Government in developing such a strategy. I very much support the amendment.
Baroness Miller of HendonMy Lords, we on these Benches are also supportive of and grateful for the amendment.
Lord Jenkin of Roding: My Lords, before the Minister replies, I have a question. Subsection (8) sets

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out the capacity that is to be regarded as falling within the description of microgeneration—50 kilowatts of electricity and 45 kilowatts thermal of heat. Is there any particular reason why those figures have been put into the Bill, or is it simply a matter of judgment as to where a line should be drawn? Has there been any scientific study of the equipment that might be available, both for electricity and the combined heat and power systems referred to in the amendment? I should be most grateful for an explanation.
Lord WhittyMy Lords, I am not fully clear about the scientific basis for it but, on the electricity side, the threshold for electricity generation is set at the equivalent definition of micro-CHP in the EU co-generation directive. On the heat side there is not a similar precedent to follow. The general view is that 45 kilowatts thermal ensures that the technologies which are capable of generating heat for small households or community heating projects would fall within the scope of this strategy. There is a less clear answer on the heat part but it is for consistency on the other part.
On Question, Motion agreed to.
12.30 p.m.

COMMONS AMENDMENT
10 Clause 84, Leave out Clause 84
Lord Whittyrose to move, that the House do disagree with the Commons in their Amendment No. 10 but do propose the following amendments in lieu—
10A Clause 84, page 64, line 29, leave out from beginning to "(the" in line 30 and insert "In each of section 4AA of the Gas Act 1986 (c. 44) and section 3A of the 1989 Act"
10B Clause 84, page 64, line 31, leave out from "Authority)," to end of line 35 and insert "in subsection (5)—

for the "and" at the end of paragraph (b) substitute—

(ba) to contribute to the achievement of sustainable development; and";

for "and shall" substitute "and (so far as not otherwise required to do so by this subsection) shall"

The noble Lordsaid: My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 10 but propose that we adopt instead Amendments Nos. 10A and 10B.
We have argued in both Houses that the three pillars of sustainable development—economic, social and environmental—are already covered in legislation. Sustainable development is already taken fully into account when the Secretary of State, Ofgem and GEMA carry out their functions under Part I of the Electricity Act 1989 and the Gas Act 1986. We have questioned whether this additional duty on the Secretary of State would significantly alter the way the work is delivered.
However, on further reflection and having listened to the arguments originally proposed by the noble Baroness, Lady Miller of Chilthorne Domer, and by others both here and in the Commons, the fact
that this
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sustainable development duty has wide cross-party and stakeholder support demonstrates to us that it might be better to make this clear in the Bill.
I am familiar with the precedent in the Water Act 2003. It is difficult to argue with it. I tried earlier, but I am not sure that I convinced myself, and I clearly did not convince many noble Lords or Members below. We should have a similar provision in relation to the Secretary of State and GEMA in this Bill and, for consistency, in the Electricity Act 1989 and the Gas Act 1986, which were referred to in the original amendment.
We are therefore content to propose that that a sustainable development duty is added to those to which the Secretary of State and GEMA must already pay attention. I hope that shows beyond doubt the Government's intention in this matter.
Moved, That the House do disagree with the Commons in their Amendment No. 10 but do propose Amendments Nos. 10A and 10B in lieu thereof.—(Lord Whitty.)
Baroness Miller of Chilthorne DomerMy Lords, I shall speak to Amendments Nos. 10A and 10B. I express my considerable gratitude to the Minister for listening to all the arguments. As he said, he played a considerable role in ensuring that there was a similar provision in the Water Act 2003, and so he was open to the suggestion that it was important to have such a provision in this Bill, as far as the regulator is concerned.
There was some debate around the fact that guidance could be issued for environmental and social requirements and the question of whether that was sufficient. The fact that the Government have had a change of heart and have included a sustainable development duty for GEMA signifies a real step forward for the industry.
All too often, the parts of sustainability are taken separately. The Minister is correct to say that they all need to be considered together. The Government's amendment, which replaces the deleted Clause 84, is extremely welcome and satisfactory.
Baroness ByfordMy Lords, we are delighted that the Government have been persuaded. We had long debates at earlier stages in the Bill, and the noble Baroness, Lady Miller of Chilthorne Domer, and I pressed very hard. We took the Water Act through. I am grateful that the Minister has listened to the arguments and has convinced his colleagues at the other end. We support the amendments.
Lord Jenkin of RodingMy Lords, I would like to add my support to this and draw the House's attention to what I have found a compelling report by Sustainability First, Economic regulation and sustainability policy. It took my printer a long time to print it out, but it was worth it.
The main recommendation in that report is that sustainability obligations should be the same for the energy regulator as they are for the water regulator, as

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the noble Baroness, Lady Miller of Chilthorne Domer, has said. The Government are wise in moving in that direction. I support the amendments too.
Lord WhittyMy Lords, I am grateful for this support.
On Question, Motion agreed to.

COMMONS AMENDMENTS
11 Clause 100, Leave out Clause 100
12 Clause 101, Leave out Clause 101
13 Clause 102, page 78, line 10, after "extension", insert "of a generating station"
14 Clause 102, page 79, line 13, at end insert—
"36B Duties in relation to navigation

Neither the Secretary of State nor the Scottish Ministers may grant a consent in relation to any particular offshore generating activities if he considers, or (as the case may be) they consider, that interference with the use of recognised sea lanes essential to international navigation—

is likely to be caused by the carrying on of those activities; or

is likely to result from their having been carried on.

It shall be the duty both of the Secretary of State and of the Scottish Ministers, in determining—

whether to give a consent for any particular offshore generating activities, and

what conditions to include in such a consent,
to have regard to the extent and nature of any obstruction of or danger to navigation which (without amounting to interference with the use of such sea lanes) is likely to be caused by the carrying on of the activities, or is likely to result from their having been carried on.

In determining for the purposes of this section what interference, obstruction or danger is likely and its extent and nature, the Secretary of State or (as the case may be) the Scottish Ministers must have regard to the likely overall effect (both while being carried on and subsequently) of—

the activities in question; and

such other offshore generating activities as are either already the subject of consents or are activities in respect of which it appears likely that consents will be granted.

For the purposes of this section the effects of offshore generating activities include—

how, in relation to those activities, the Secretary of State and the Scottish Ministers have exercised or will exercise their powers under section 36A above and section 103 of the Energy Act 2004 (extinguishment of public rights of navigation); and

how, in relation to those activities, the Secretary of State has exercised or will exercise his powers under sections 96 and 97 and Chapter 2 of Part 3 of that Act (safety zones and decommissioning).

If the person who has granted a consent in relation to any offshore generating activities thinks it appropriate to do so in the interests of the safety of navigation, he may at any time vary conditions of the consent so as to modify in relation to any of the following matters the obligations imposed by those conditions—

the provision of aids to navigation (including, in particular, lights and signals);

the stationing of guard ships in the vicinity of the place where the activities are being or are to be carried on; or

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the taking of other measures for the purposes of, or in connection with, the control of the movement of vessels in that vicinity.

A modification in exercise of the power under subsection must be set out in a notice given by the person who granted the consent to the person whose obligations are modified.

In this section—

consent' means a consent under section 36 above; `offshore generating activities' means—

the construction or operation of a generating station that is to comprise or comprises (in whole or in part) renewable energy installations; or

an extension of a generating station that is to comprise (in whole or in part) renewable energy installations or an extension of such an installation;

the use of recognised sea lanes essential to international navigation' means—

anything that constitutes the use of such a sea lane for the purposes of Article 60(7) of the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941); or

any use of waters in the territorial sea adjacent to Great Britain that would fall within paragraph (a) if the waters were in a Renewable Energy Zone.

In subsection 'extension', in relation to a renewable energy installation, has the same meaning as in Chapter 1 of Part 3 of the Energy Act 2004."

15 Clause 102, page 79, line 22, at end insert—
() In subsection (1) of section 35 of the Coast Protection Act 1949 (c. 74) (operations not requiring consent under section 34), after paragraph (g) insert—
(ga) subject to subsection (3) of this section, any operations comprised in offshore generating activities carried out in accordance with a consent under section 36 of the Electricity Act 1989 granted after the commencement of section 102 of the Energy Act 2004;.
( ) After subsection (2) of that section insert—
"(3) Operations in or as regards Scotland fall within paragraph (ga) of that subsection only if and to the extent that the Scottish Ministers by order made by statutory instrument so provide.
(4) A statutory instrument containing an order under subsection (3) shall not be made unless a draft of the instrument has been laid before and approved by a resolution of the Scottish Parliament.
(5) In that paragraph 'offshore generating activities' has the same meaning as in section 36B of the Electricity Act 1989.""
16 Clause 103, page 79, line 32, after "extension" insert "of a generating station"
Lord TriesmanMy Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 to 16.
Clauses 100 and 101 on navigation were introduced by noble Lords on Report. We recognise the importance which the shipping and ports industries attach to including navigational matters in the Bill. At Second Reading in the other place, the Government gave an undertaking to retain the substance of these two clauses. However—I say it with great respect to those who drafted the clauses—in their original formulation, both clauses had a number of shortcomings which meant that they would be difficult to implement in practice and could create confusion which might well lead to litigation.

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The main shortcomings were, first, that Clause 100 did not make it clear who had the duty to ensure that installations and the safety zones around them do not interfere with the use of recognised sea lanes essential to international navigation. Secondly, this clause was almost the same as Article 60(7) of the United Nations Convention on the Law of the Sea, but there is no express link to that article in the clause. Thirdly, Clause 101 took no account of the devolved competence of Scottish Ministers.
Commons Amendments Nos. 11, 12, 14 and 15 address these shortcomings, while retaining the substance of Clauses 100 and 101. Amendments Nos. 11 and 12 remove Clauses 100 and 101 from the Bill. Amendment No. 14 places the duties in relation to navigation encompassed by Clauses 100 and 101 on the Secretary of State and Scottish Ministers who have responsibility for deciding whether to grant a Section 36 Electricity Act consent for the construction, extension and operation of a generating station. At the same time the Secretary of State must also take into account how she has exercised or will exercise her powers in respect of safety zones.
The Commons amendments go further than the strict requirements of the amendments made by your Lordships' House. Amendment No. 14 provides at subsection (2) for the Secretary of State and Scottish Ministers to have a general duty to have regard to the nature of any obstruction or danger to navigation in deciding whether to give a Section 36 consent for an offshore generating station.
It was clear from our debate on navigational issues that noble Lords—including the noble Lord, Lord Greenway, who I see in his place—were concerned to see a general reference to the safety of navigation in the Bill. We have listened to those concerns.
This consolidation of duties in respect of navigation into Section 36 of the Electricity Act 1989 has the benefit of ensuring that a comprehensive assessment of the impact of a proposed installation and any safety zone around it on navigation forms an integral part of the process of deciding whether to grant a consent for a generating station.
DTI Ministers will continue to work with the Department for Transport and more particularly the Maritime and Coastguard Agency, which has responsibility for marine safety in carrying out these duties. They have already built a close relationship with the MCA on the first round of offshore wind farm projects.
The effect of Amendment No. 15 is to disapply Section 34 of the Coast Protection Act 1949 where consent has been obtained for a generating station under Section 36 of the Electricity Act 1989 after Clause 100 of the Bill has been brought into force. Section 36B(2) to (6) do the same job as Section 34 of the Coast Protection Act, so it can be disapplied. With regard to Scotland, the amendment gives Scottish Ministers a power to make an order which disapplies Section 34 of the Coast Protection Act.
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Amendments Nos. 13 and 16 are purely drafting amendments designed to make it clear that the reference to "an extension" in 36A(1)(b) and Clause 103(2)(b) means an extension of a generating station. These amendments ensure that these references to an extension of a generating station tie in with the definition of offshore generating activities at Section 36B(7).
I commend the Commons amendments to the House. They address the issues which caused some concern in the House and are now in a form that would not give rise to litigation.
Moved, That the House do agree with the Commons in their Amendments Nos. 11 to 16.—"(Lord Triesman.)
Lord GreenwayMy Lords, I warmly welcome these amendments which, as the Minister said, go slightly wider than the two clauses which were written into the Bill during its passage through this House. The noble Lord, Lord Higgins, who is otherwise engaged in the House at the moment, and I raised the concerns of the maritime industries in connection with the proposed siting of offshore wind farms in relation to the dangers of interfering with well recognised shipping lanes.
What the Government are now proposing meets nearly all our concerns. For that, I should like to express my gratitude, which I am sure will be echoed by my colleagues in the maritime industries. I do not think that it would be correct for me to thank the Minister on behalf of the noble Lord, Lord Higgins. Perhaps the noble Baroness on the Opposition Front Bench would do that.
Lord Dixon-SmithMy Lords, will the Minister give the House an assurance that, from here on, shipping will be able to miss maritime wind farms? At Question Time about six weeks ago, the noble Lord, Lord Whitty, said something to the effect that shipping could not possibly miss maritime wind farms.
Baroness Miller of HendonMy Lords, as the noble Lord, Lord Greenway, said, on behalf of my noble friend Lord Higgins—on behalf of everybody, really—we welcome these changes to navigation which have been so well championed. We are grateful to the two noble Lords who spent so much time, in so many debates, discussing these proposals, and to the Government, for agreeing to what is before us.
Lord TriesmanMy Lords, the intention of everybody in this matter has been that shipping should miss these installations. That seems a prudent step. I suspect that the best way to answer the question of the noble Lord, Lord Dixon-Smith, is to say that I am sure there will be some adjustments to the way in which navigation operates with respect to the installations. We now have a framework in which the obligations of all parties are well defined. I am very grateful to all noble Lords who have pressed the argument to this conclusion.
On Question, Motion agreed to.

COMMONS AMENDMENTS
17 Clause 118, page 95, line 15, leave out from beginning to "insert" in line 26 and insert—
() For subsection (3) of that section substitute—
(2A) An order under section 32 may provide that, where—

a renewables obligation is one in relation to which provision made by virtue of subsection (1)(b) applies in the case of the electricity supplier who is subject to the obligation, and

the period ending with such day (after the day by which the obligation had to be complied with) as may be specified in or determined under the order has not expired,

the taking of steps under section 27A in respect of a contravention by that supplier of that obligation is prohibited or otherwise restricted to the extent specified in the order.

(2B) An order under section 32 may provide that, in a case in which the amount received by the Authority, or by the Northern Ireland authority, by way of discharge payments for a period falls short of the amount due in respect of that period, persons who—

were subject to renewables obligations for the relevant period, and

are of a description specified in or determined under the order,
must, by the time and in the circumstances so specified or determined, make a payment (or further payment) to the Authority of an amount calculated in the manner so specified or determined.

(2C) An order under section 32 may not by virtue of subsection (2B) confer an entitlement on the Authority to receive a payment in respect of the shortfall for any period—

in the case of a shortfall in the amount received by the Authority, if the receipt of the payment is to be while a prohibition or restriction by virtue of subsection (2A) applies, in one or more cases, to the taking of steps in relation to contraventions of renewables obligations for that period; or

in the case of a shortfall in the amount received by the Northern Ireland authority, if the receipt of the payment is to be while a prohibition or restriction by virtue of a corresponding provision having effect in Northern Ireland applies, in one or more cases, to the taking of steps in relation to contraventions of Northern Ireland obligations for that period.

(2D) The provision that may be made by virtue of subsection (2B) includes—

provision for the making of adjustments and repayments at times after a requirement to make payments in respect of a shortfall for a period has already arisen; and

provision that sections 25 to 28 are to apply in relation to a requirement imposed by virtue of that subsection on a person who is not a licence holder as if he were a licence holder.

(3) The amounts received by the Authority by virtue of the preceding provisions of this section must be paid by it to electricity suppliers in accordance with a system of allocation specified in an order under section 32."
() In that section, at the end"
18 Page 95, line 29, at end insert—
"(7) For the purposes of this section—

the amount received by the Authority by way of discharge payments for a period falls short of the amount due in respect of that period, and

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the amount received by the Northern Ireland authority by way of discharge payments for a period falls short of the amount due in respect of that period,
if, and to the extent that, the Authority or (as the case may be) the Northern Ireland authority would have received more by way of discharge payments if every renewables obligation or (as the case may be) Northern Ireland obligation for that period, so far as it was not otherwise discharged, had been discharged by payment.

(8) In this section—
"discharge payment", in relation to a period, means—

a payment by virtue of paragraph (a) of subsection (1) for discharging (in whole or in part) an electricity supplier's renewables obligation for that period;

so much of a payment by virtue of paragraph (b) of that subsection for securing that such an obligation is treated as discharged to any extent as does not exceed the payment that would have discharged that obligation to the same extent if it had been made before the day mentioned in that paragraph; or

so much of any payment to the Northern Ireland authority as corresponds, in relation to a Northern Ireland obligation for that period, to anything falling within paragraph (a) or (b) above;

"Northern Ireland obligation" means a renewables obligation of a Northern Ireland supplier under Article 52 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6));
"the relevant period"—

in relation to a shortfall in amounts received by the Authority by way of discharge payments for a period, means that period; and

in relation to a shortfall in amounts received by the Northern Ireland authority by way of discharge payments for a period, means any period that includes the whole or a part of that period.""

Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 17 and 18.
These amendments take further steps to reduce the impact of a future shortfall in the renewables obligation buy-out fund so as to improve investor confidence. I think we know what lies behind this from the discussions we had in Committee and elsewhere. The noble Lord, Lord Jenkin, was prominent in those.
The arguments for mutualisation have been put forward here and in another place. They reflect the failure of TXU and, more recently, Atlantic Electric and Gas. That strengthens the case for mutualisation. However, it must be remembered that the renewables obligation is a market mechanism and, as such, there is always an element of risk companies can, and do, fail. Therefore, a balance must be struck between reducing the impact of shortfalls in the buy-out fund while at the same time avoiding undue additional burdens on consumers or adversely affecting competition. This means that although the amendment reduces the impact of a shortfall to suppliers, it does not entirely remove the risk of it happening in the first place.
The amendment is not a complete answer to removing all risk, and I do not think that it can be. But taken together with other measures contained in

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Clause 118, such as reducing the length of obligation periods and imposing surcharges on late payments, I think that it offers a balanced response to the problem.
Before changes are made to the renewables obligation order, we will need to engage in detailed consideration of issues such as how the payments are assessed, when the suppliers need to make those payments, and over what period those payments are to be made. As part of this consideration, a statutory consultation exercise will take place later this year. when these issues will be addressed.
I think that the noble Baroness, Lady Miller of Hendon, will shortly be moving her amendment, for which I have some sympathy. I shall reserve my remarks on her amendment until I have heard her speech.
Moved, That the House do agree with the Commons in their Amendments Nos. 17 and 18.—(Lord Whitty.)
12.45 p.m.
Baroness Miller of Hendonrose to move Amendment No. 17A, as an amendment to Commons Amendment No. 17:
17A Line 16, leave out from "period" to end of line 20 and insert ", every person who—

was subject to a renewables obligation for the relevant period or for a subsequent period specified in or determined under the order, and,

is of a description so specified or determined,"

The noble Baronesssaid: This amendment relates to the so-called mutualisation provisions introduced in the other place in order to secure the renewables obligation against default following the difficulties with TXU, Maverick and Atlantic. These clauses were introduced by the Government following concerns expressed in both Houses by both opposition parties.
The Government's clause, however, has a potentially significant problem, in that it requires any default to be recovered from the other suppliers according to their supply in the year of default, rather than according to supply in a later year. We have been advised by the electricity supply industry that this could have the potential to introduce distortions in the supply market, especially for industrial customers. This could negate the benefit of the Government's clause and may leave some smaller suppliers facing risks if their market share were to fall.
The industry's view is that recovery of the deficit should take place according to supply in a later year so that the parties can take account of it in their commercial behaviour. This reflects the approach for the main renewables obligation and other government measures for the electricity industry to achieve public policy objectives.
Our amendment is designed to increase the flexibility of the legislation so that the Government can consider this matter further in consultation and, if they agree with the views that have been expressed, implement a mutualisation scheme which avoids the market distortions that I have mentioned.
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I hope that the Government will be able to accept this amendment as a technical, but valuable, improvement to the Bill. I beg to move.
Lord Jenkin of RodingMy Lords, I cannot possibly add to my noble friend's words, and I shall be very interested to hear the noble Lord's reply. It seems to me that in these circumstances, there needs to be some flexibility.
The noble Lord will remember that when we addressed this matter in Grand Committee, it was extremely unclear whether mutualisation was a preferable way forward rather than what was at that stage summed up in the word "securitisation". The more I have thought about this and discussed it, the more I realise that securitisation could have some very damaging effects on some of the more vulnerable producers and suppliers. The interest rates they would be charged by the market for putting up in advance a security for their payment into the buy-out fund could be very severe and could tip them over into insolvency.
The advantage of mutualisation, as my noble friend has said, is that it spreads the burden, although it may appear unfair to some who have paid on the nail, regularly, that they have to pay for their defaulting colleagues in the industry. The fact is that the damage that would be done by allowing the buy-out fund to fall into deficit would be considerable.
It would damage the Government's policy for the encouragement of renewables. This is a mechanism by which consumers generally, from whomsoever they buy their power, subsidise the renewables industry. It may be argued, as we may in regard to a later amendment, that how much consumers are paying towards the renewables obligation should appear more explicitly in consumers' bills. The Government are not paying that subsidy; the consumers are paying it. Nevertheless, that is a separate argument. In the end, I believe that mutualisation is the right answer, perhaps with the amendment suggested by my noble friend.
My only other point is that I am sure that the Government in their consultations will consult all branches of the industry, but I hope that they will also consult those who make the market the noble Lord introduced the matter by saying that it is a market—in renewable obligation certificates. I was first alerted by the market to the danger that came from TXU going into administration. I am sure that the noble Lord, Lord Whitty, will remember a conversation that he and I had outside the Chamber very soon afterwards, in which I sought to impress upon him the damage that that would do to the Government's policy. He accepted that without demur. Many months later, the result, after a good deal of travail and consideration, is what we have before us today.
The market makers and those who operate in the market—the brokers and others—will certainly have some views to offer. I hope that they will be consulted too.
Lord WhittyMy Lords, I shall respond to the amendment of the noble Baroness and to the noble

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Lord, Lord Jenkin. Clearly, the mutualisation proposition, which everyone is proposing, helps to reduce the risk significantly without the straightforward cost that securitisation would impose, with the dangers to which the noble Lord, Lord Jenkin, rightly referred. I am happy to accept the amendment tabled by the noble Baroness as it gives flexibility in this regard. There are situations in which we would want to look at the current suppliers at the point when the mutualisation payment was made rather than at the point when the shortfall arose, when there may be a very different market share.
Therefore, we want the flexibility to consult with industry. I say to the noble Lord, Lord Jenkin, that the industry would be broadly defined and would include the market itself. Therefore, I am very happy to accept the amendment of the noble Baroness.
Baroness Miller of HendonMy Lords, I am very happy that the Minister is very happy. We are grateful and sure that the industry will be very pleased as well.
On Question, Amendment No. 17A agreed to.
On Question, Motion, as amended, agreed to.

COMMONS AMENDMENT
18 Page 95, line 29, at end insert—
"(7) For the purposes of this section—

the amount received by the Authority by way of discharge payments for a period falls short of the amount due in respect of that period, and

the amount received by the Northern Ireland authority by way of discharge payments for a period falls short of the amount due in respect of that period,

if, and to the extent that, the Authority or (as the case may be) the Northern Ireland authority would have received more by way of discharge payments if every renewables obligation or (as the case may be) Northern Ireland obligation for that period, so far as it was not otherwise discharged, had been discharged by payment.
(8) In this section—
"discharge payment", in relation to a period. means—

a payment by virtue of paragraph (a) of subsection (1) for discharging (in whole or in part) an electricity supplier's renewables obligation for that period;

so much of a payment by virtue of paragraph (b) of that subsection for securing that such an obligation is treated as discharged to any extent as does not exceed the payment that would have discharged that obligation to the same extent if it had been made before the day mentioned in that paragraph; or

so much of any payment to the Northern Ireland authority as corresponds, in relation to a Northern Ireland obligation for that period, to anything falling within paragraph (a) or (b) above;

"Northern Ireland obligation" means a renewables obligation of a Northern Ireland supplier under Article 52 of the Energy (Northern Ireland ) Order 2003 (S.I. 2003/419 (N.I. 6));
"the relevant period"—

in relation to a shortfall in amounts received by the Authority by way of discharge payments for a period, means that period; and

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in relation to a shortfall in amounts received by the Northern Ireland authority by way of discharge payments for a period, means any period that includes the whole or a part of that period.""

Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendment No. 18.
Moved, that the House do agree with the Commons in their Amendment No. 18.—(Lord Whitty.)
On Question, Motion agreed to.

COMMONS AMENDMENT
19 Clause 120, Leave out Clause 120
Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendment No. 19.
This debate has engendered much interest. The amendment tabled in the Commons removed CHP. The amendment made here would remove CHP from the renewables obligation base. In the Government's judgment, the effect of that would be a small benefit to CHP but would affect the renewables target, just when we are seeing some progress on that. It does not seem to the Government to be the best way of supporting CHP.
However, throughout the debate on this matter there has been support on all sides for recognising that CHP needs further measures to support it. While the focus of the debate has been on whether we should remove them from the renewables base, it does not alter the argument that at present the CHP target of 10 gigawatts is unlikely to be achieved on existing measures. Therefore, we recognise the need to do something about CHP, but we do not want a measure that would introduce a range of uncertainties and which would not be helpful in achieving other targets.
As I have said during the course of the Bill in this House, the Government will certainly look at CHP in the review of the renewables obligation to see whether there are other ways in which the obligation could help CHP without damaging the renewables sector. The discussions in this House and elsewhere have been very helpful in that regard.
In the latest stage of the Commons' consideration of the Bill, an alternative proposition for CHP support was proposed, which was described as similar to a fixed-rate mortgage. The Government would guarantee a certain level of spark spread from CHP; that is, the difference between the price paid for gas and the price paid for electricity generated. In times when the spark spread was below a certain threshold, it would be topped up by the equivalent of a mortgage fund and on other occasions when the spark spread was above the threshold, it would be capped and the mortgage fund would receive an income.
That seems to be an interesting new suggestion, but my colleague, Alan Whitehead, MP, with support from the industry, and my colleague Stephen Timms and I met with them a few days ago to discuss the practicability of such a measure. We are certainly willing to support further consideration of it and to

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look at the cost benefits and mechanisms. That applies to my department and to the DTI working with the Combined Heat and Power Association; they will look at the matter in more detail. That would not require a legislative change in the way in which this Bill is constructed, but we would have to consider what would be needed to make such a mechanism work. We would also need to avoid the downside risk associated with the price of CHP generated electricity, so that the cost to consumers remained acceptable.
I recognise that there is a need for further help for CHP and that CHP at the moment is undershooting the target for 2010. We believe that a number of measures that we have introduced will help to improve that performance, but something else is probably needed. Therefore, we are not in favour of keeping the change in the renewables obligation which was introduced in this House, but we are in favour of considering other ways of helping the CHP industry that will work in the interests of CHP and the renewables sector. Therefore I hope that the House will accept Commons Amendment No. 19.
Moved, That the House do agree with the Commons in their Amendment No. 19.—(Lord Whitty.)
Lord Ezrarose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 19, at end insert "but do propose the following Amendment in lieu of the words so left out of the Bill—
19A* After Clause 119, Insert the following new Clause—
"Annual assessment on Combined Heat and Power
In section 47 (general functions) of the 1989 Act, after subsection (1)(b), insert—
(c) to publish an annual assessment which shall outline what has been the particular impact of the Authority's activities in relation to Combined Heat and Power.""
The noble Lordsaid: My Lords, I listened with great care to what the noble Lord, Lord Whitty, has told us about CHP. I was particularly pleased that the Government are now seriously considering additional measures. It is becoming obvious that the target of 10 megawatts by 2010 cannot be achieved. The latest figure given is 8,500. We know that there are 2,000 megawatts of potential CHP on hold at the moment and further doubt has spread throughout the sector.
It is satisfactory that talks are taking place in an active way to find out other measures that may not require legislative backing, which would, of course, impose further delay. I was particularly interested in what is suggested in relation to what is known as the spark spread. That is the difference in the price paid for the gas and the price obtained for the electricity. I wish those discussions well.
However, I believe that it would be a great pity if the Bill were to go forward without any reference whatever to CHP. Therefore, I have proposed a very simple, unobtrusive amendment that at least mentions CHP and mentions it in relation to Ofgem. The fear has been that as a result of the way in which Ofgem has operated, particularly in the new electricity trading arrangements, CHP has come out of it badly.
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It may well be that Ofgem is really taking CHP very seriously these days, in which case, it would be helped by the amendment that I have proposed; which is that, under the Electricity Act 1989, it should publish an annual assessment which will outline what has been the particular impact of the authority's activities in relation to combined heat and power. That will bring home the importance of CHP to the authority and will bring CHP into the Bill. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 19, at end insert "but do propose Amendment No. 19A in lieu of the words so left out of the Bill".—(Lord Ezra.)
1 p.m.
Lord Jenkin of RodingMy Lords, what a deal of kicking, pushing and shoving is necessary to persuade Ministers to move in the direction that the noble Lord, Lord Whitty, indicated a few moments ago. Again and again, this matter has been raised. The association that represents the industry has been assiduous in promoting its cause to both officials and Ministers. I share the pleasure of the noble Lord, Lord Ezra, that something may at last come of it.
I have two points. The first relates to the speech—I heard most of it—that the noble Lord, Lord Whitty, addressed to the CHP Association at its lunch in the Cholmondeley Room on 10 June. It sounded extremely friendly to the industry. However, it came at a time when the Government had moved to leave out Clause 120, which this House had put in. I am told that David Green has asked the Minister's private office if he might have a copy of the remarks of the noble Lord, Lord Whitty, on that occasion, but he has so far been refused. That was, in a sense, a public occasion. There must have been more than 100 people present, most of them from the industry, but with a number of Members of this House and the other place who support the Combined Heat and Power Association. I find it astonishing that a Minister's office should decline to provide the association with a copy of what the Minister said. I hope that the Minister can now give us an undertaking that it will indeed be forthcoming. The incident suggests that Ministers, when appearing in front of a particular audience, were very happy to say how much they applauded and approved of everything that it did, while actually taking legislation through the House which was denying it any further help.
My second point reinforces what was said by the noble Lord, Lord Ezra: the amendment is proposing yet another aspect of power generation on which Ofgem will be obliged to report. It is not asking for any specific relief. I understand the arguments that were made in relation to the amendment about the ROCs. We received a good deal of representation from the rest of the industry about that. However, I hope very much that the Government really can now accept that Ofgem should report in line with what the Minister said about the consideration that the Government are giving to the scheme that was put forward by his honourable friend Alan Whitehead in another place.

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That would be a useful step forward, but Parliament needs to be told what is taking place on that front. Many of us have received representations from what is an extremely active trade association that represents an important part of the energy industry. We really are owed a regular update of what is happening in this field. I hope that the amendment of the noble Lord, Lord Ezra, can be accepted.
Baroness Miller of HendonMy Lords, the Minister will obviously appreciate that we have all been very disappointed that Amendment No. 19 would leave out Clause 120, because we thought that we had had such a great success in introducing CHP to the Bill in one way or another. We are very disappointed to see the removal of the clause.
However, like the noble Lord, Lord Ezra, I welcome the comments made by the Minister in responding to the amendment. Indeed, I am intrigued by what my noble friend Lord Jenkin said about what the Minister was able to say at that CHP reception. Regrettably, I met the Minister coming out as I was going in because I had been delayed elsewhere. There was not a written report of the meeting so I did not know what the Minister had said.
If the Minister really means what my noble friend Lord Jenkin reported that he had said, and, indeed, what the noble Lord, Lord Ezra believed to be the case after listening to the presentation of this amendment today, he should welcome and support it. That would at least give us a way of coming to the issue. Since it is not only noble Lords but also the CHP that is requesting something, perhaps I may read a brief note that David Green sent to me. Before I came into the Chamber, I looked at the amendments that we had moved on Report on this matter and I was quite certain that the Minister would not be able to bear it if we repeated them. They went on from page to page and column to column. I did not know that I knew quite so much about the subject until I read Hansard again this morning. David Green's note states:
The delivery of the Government's CHP target has been sadly lacking.
I think everybody would agree with that. It continues:
It has contributed to the sorry story of inaction on CHP that is the Government's approach to CHP. Indeed I very much regret that the Government saw fit to remove this Place's changes to the Energy Bill in relation to CHP.
David Green points out that the Government have not managed to come forward with any genuine proposals, other than those few which relate to micro-CHP. They have come forward with nothing more substantial than that.
I urge the Minister to accept the amendment of the noble Lord, Lord Ezra. If he is unable to do that, will he tell the House what the Government plan to do to get the CHP policy back on track? It would remedy the serious problem if he were simply to say that it is an easy amendment for him to accept, which we believe that it is.
Lord WhittyMy Lords, I do not want entirely to destroy the consensual atmosphere, although I suspect
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that by the time we have finished on this amendment, I will have. Before I address the amendment, I must respond to the noble Lord, Lord Jenkin. Without beating about the bush, he effectively accused me of saying one thing in one place and another thing in another. He also accused my private office of being unco-operative. I refute both of those charges.
On the speech that I made at the CHP reception, I am informed that my private office never received a request for a copy of it, but it may be that David Green has mentioned it to me personally and that I have said to him, as I say to noble Lords now, that I do not always stick very closely to any prepared speech. I do not stick to them even in this House, as noble Lords will have noticed from time to time, and in the case of receptions, I very often speak off the cuff. There is therefore no text of my speech. What that speech covered was what I said in Committee in relation to the renewables obligation; namely, that we would give the matter serious consideration, but that the time to do so was not in this legislation, but in the review of the renewables obligation next year and that, as I said a few minutes ago, we need to do more to enable the CHP industry to reach its target of 10 gigawatts. That is a very serious problem which is facing government as a whole and my department as the prime department with responsibility for CHP in particular. I agree that more needs to be done in that respect.
Lord Jenkin of RodingMy Lords, on the question of the Minister's speech on 10 June, I entirely accept his description of what subsequently happened. If I mentioned his private office, that was per incuriam. David Green asked the question and he received the same answer as that we have heard today. That speech was not scripted by the department; it was something else of which no record has been kept. One has to recognise that Ministers do that—I have done it myself—but that is the explanation.
Lord WhittyMy Lords, I suspect that the noble Lord did that rather more frequently when he held a more elevated position than mine. Nevertheless, the speech revealed that there is consistently strong support for the Combined Heat and Power Association and the CHP industry and a recognition of the difficulties that current measures and current economics have meeting that target; I repeated that in Committee and in our debate today. There is not much inconsistency there. I recognise that the Government have a serious problem meeting that target, which is in the Energy White Paper but which also pre-dated it.
The amendment was moved very reasonably by the noble Lord, Lord Ezra, and spoken to very gently by the noble Baroness, Lady Miller. I oppose it not for reasons of principle but because it is not necessary and in an effort to avoid duplication. Ofgem/GEMA already has a statutory duty to make an annual report to the Secretary of State and to Parliament. That includes details of progress on all projects identified in the work programme and the environmental action plan and duties relating to small generators and CHP. There is already an obligation on Ofgem/GEMA to report.

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As we indicated in the government strategy on CHP, we will continue to monitor and report annually on progress towards the CHP target. We do that through the annual report on the implementation of the Energy White Paper, which will be available to Parliament, and in the Digest of United Kingdom Energy Statistics, the latest of which is due for publication at the end of this month. Formal reports are already required of Ofgem and the Government that cover the CHP point, among others.
To pick out CHP and place another reporting mechanism in the Bill appears unnecessary. It might be seen by some in the CHP industry as a gesture, but it is not a necessary gesture and it would not change the existing requirement to report, and to report fully, on what has been achieved—or not achieved—in terms of the CHP target. I therefore ask the House not to agree to the noble Lord's amendment.
Baroness ByfordMy Lords, the Minister said that there was a duty already to report to Parliament. Is that duty laid down in an Act or does it simply happen?
Lord WhittyMy Lords, the duty on the authority is in the legislation. I refer to the duty on the authority to report to the Secretary of State and the Secretary of State's duty to report to Parliament. That involves the legislation that set up GEMA—I will not give chapter and verse—and is reflected in this Bill.
Perhaps I should correct myself. The Sustainable Energy Act contains the explicit requirement. That is the legislative requirement.
Lord EzraMy Lords, I have listened carefully to the Minister's response to the amendment. I am still rather puzzled about why he rejected including it in the authority's obligations under the Electricity Act. Under that Act, the authority already has to make a report covering various related issues and it appears logical and appropriate that CHP should be included in it. Perhaps it has to be dealt with in other ways under other legislation but that appeared to be the most appropriate place and a convenient way in which CHP could he mentioned in the Bill. I am very sorry indeed that the Minister was not prepared to accept that. It would not apparently have placed any additional burden on the authority if it already had to do so under other legislation. It might have involved some repetition but it would have given a signal in this important piece of legislation, which we are now seeing through its final stages, that the Government attach importance to CHP. However, as I said when I withdrew an earlier amendment, I certainly do not wish us to divide on this issue. I regretfully beg leave to withdraw the amendment.
Amendment No. 19A, as an amendment to Amendment No. 19, by leave, withdrawn.
On Question, Motion agreed to.
1.15 p.m.

COMMONS AMENDMENT
20 Clause 128, Leave out Clause 128
Lord WhittyMy Lords, I beg to move that this House do agree with the Commons in their Amendment No. 20. I shall speak also to Amendments Nos. 22 to 30 and 34, which concern a renewable transport fuel obligation.
We have had a substantial debate on this issue at earlier stages of the Bill's passage and I am sure that all noble Lords recognise that renewable transport fuels have an important part to play in reducing the carbon content of our energy use and in the effort to tackle climate change. It was pretty well agreed by all parties in the House that some form of renewable transport obligation is a serious option for ensuring that those fuels become part of the mainstream fuelling of vehicles.
There has been much constructive discussion on this matter before and after the original amendment was agreed to. The clauses that were tabled by the Government in another place have resulted in a more complex system than that which we agreed in this House—one clause has been transformed into nine. That is the effect of further consideration. However, some of the complications that must be faced in retaining the principle behind the original clause require the system to be that lengthy. We have taken the advice of parliamentary counsel that we should do so in this form. There are a number of complications because we do not have an existing regulator to help to run the scheme. A number of clauses therefore have to relate to the appointment of an administrator, funding issues, penalties, appeals and so on. That is the main reason why this group of clauses is so much more complicated than the original approach.
These are all permissive clauses; they will allow the Government to introduce an obligation that would require designated fuel suppliers to demonstrate that their total UK fuel sales included in aggregate a specified proportion of renewable transport fuels. I appreciate that the drafting is complex but it reflects the principle of the clause, which was adopted earlier in this House, and the precedent set by the legislation in the Electricity Act concerning the renewables obligation. For example, it includes features such as the issuing and trading of certificates, the buy-out mechanism, the flexibility that that brings and the ability to make different arrangements for different fuels based on their comparative benefits.
These permissive clauses do not mean that we have taken a final decision but it gives us powers to do so if we wanted to go down that road at, for example, the end of the current consultation by the Department for Transport, or at any subsequent stage. There will be consultation on the precise provisions at that point, and the new clauses include a commitment that we will consult widely before introducing such an obligation.
Noble Lords will have noted that all nine clauses are subject to the affirmative resolution procedure. That means that if we go down this road, we will debate the

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issue again in your Lordships' House in future. Personally, I am extremely pleased that that option is available. A great synergy is involved: there is another mechanism to ensure that the transport sector, which has been one of the most difficult to control in terms of carbon generation, has some benefits in terms of cutting carbon. There may eventually be better mechanisms. Incidentally, I point out to my noble friend Lord Carter, who moved the original amendment—he is almost on his feet now—that the approach would also bring huge potential benefit to the agricultural sector. I beg to move.
Moved, That this House do agree with the Commons in their Amendment No. 20.—(Lord Whitty.)
Lord CarterMy Lords, the reason I am anxious to get on my feet is that I am chairing a Grand Committee at half-past one. I apologise if I have to leave before the end of this short debate.
I thank the Minister most sincerely for the measure. As he said, the very modest little amendment proposed by myself and the noble Lord, Lord Ezra, comprised about 20 lines but has been replaced by a measure comprising no fewer than nine pages of legislation. My noble friend will remember that perhaps the main reason he accepted the amendment at Third Reading—he said that it would need a certain amount of adjustment in the Commons—was that if there was nothing in statute to allow for an obligation, there was no way of introducing one. That was a compelling argument but I did not think that I would be proved right to the extent of nine pages of legislation.
However, I thank all those who have worked behind the scenes, the officials in the Department for Transport and the DTI and my colleague Mr Peter Clery, the chairman of the British Association for Bio Fuels and Oils—I am the vice-chairman and I declare that interest. A lot of work has gone on behind the scenes and, despite what the Minister said, I cannot really believe that after the Government have gone to all the trouble of drafting no fewer than nine clauses to cover the obligation they will not want to introduce one when the time comes. I assure him that there will be plenty of lobbying to try to ensure that the Government do so.
I have some technical comments that relate largely to the drafting of the orders that will be required, but in the mean time I again thank the Minister for the measure.
Lord Dixon-SmithMy Lords, I should like to begin by stating how sad it is that the noble Lord, Lord Palmer, is not present today because he has been a tireless advocate of biofuels. It is very sad that he cannot be here to discuss this measure. I am not so sure that he would be pleased to see what a monster his simple little clause has become, as mentioned by the noble Lord, Lord Carter. It now comprises nine pages of legislation. That, of course, is another matter. Certainly, the noble Lord will welcome the fact—as, I am sure, does the whole House—that the Government have seen fit to accept this obligation and have
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brought forward what I would call almost consultative legislation and put it on the face of the Bill in order to have a complete scheme, which I hope we shall see working at some stage.
I accept that all of this depends on orders which are to be brought forward, but I have one or two questions because two aspects of these new clauses cause me some concern. An administrator will have,
power to impose charges of specified amounts on transport fuel suppliers… Sums received by the Administrator by virtue of provision within subsection (3)(c) must be used by him for the purpose of meeting costs.
I am afraid that I always become a little frightened when I see that someone has a power to impose charges which he can use to meet his costs. My immediate reaction is to ask where is the financial control and how do you know that that money will always be used in a very cost-effective way? The Minister may say that he cannot define that yet because the scheme does not yet exist, but I think that we should be aware that there is a possible marginal problem there. If a man can set his charges to meet his costs, he has no incentive to act in a completely businesslike way.
I turn to the new clause on renewable transport fuel certificates. It appears that these might be tradable certificates in that if someone uses "too much" green fuel, he will then have an asset that he can sell to someone else who has not met his obligation. I do not know whether that is the intention and perhaps I am misreading the way in which these new clauses are drafted. However, it appears that that might be the case.
I turn to the new clause on discharge of obligation by payment. That is well and good, but the following new clause concerns the imposition of civil penalties and states:
An RTF order may … provide that a person is to be liable to a civil penalty … That penalty must not exceed the lesser of the specified amount; and the amount equal to ten per cent of the turnover, as determined in the specified manner, of the specified business of the defaulter.
If that applied to BP, it might result in a phenomenally large penalty. I merely mention those points as they appear in the amendments. I accept that we do not know how these measures are to be brought forward. I should have thought that if there were a question of financial discharge, there would not be a question of civil penalty. However, without some assurance on how those measures will be brought forward, it is rather difficult to know precisely how one should react to them. It is a remarkable aspect of this development that we have these new clauses, which are very welcome, but they are almost of a consultative nature in the sense that, for implementation, they depend subsequently on orders. Some things may be included and some things may not. I think that it is the first time I have ever come across this in primary legislation, but the measures are very welcome.
Lord EzraMy Lords, I am very pleased to follow the noble Lords, Lord Carter and Lord Dixon-Smith, in welcoming this amendment. Indeed, before we finished with the Bill in this House, the noble Lord,

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Lord Whitty, assured us that the Government would take the amendment very seriously but might have to amend it somewhat. It did not occur to us that the "somewhat" was going to lead to this enormous compendium.
What is pleasing about it is that the Government have now devised a way in which the problem of carbon emissions in the transport sector can be seriously dealt with. This is a point that the noble Lord, Lord Whitty, made. The transport sector is an enormous emitter. There is no doubt that through technological change the degree of emissions of individual cars has much reduced, but the number of cars keeps on increasing all the time and measures of a more fundamental nature are therefore obviously required. This amendment provides the means for such measures.
I take it that what is proposed here would be consistent with the Biofuels Directive which is presently going through its various stages in Brussels, and that therefore it would be perfectly straightforward for us, if that directive were finally to come into force, to apply the measures in this amendment and that would put us in full conformity with the directive.
I conclude that this is one of a number of very beneficial effects that the debate on the Bill has had. There have been one or two aspects that we have not dealt with as satisfactorily, but I think that the satisfactory outcomes have somewhat outweighed the less satisfactory ones. I am very pleased to support the amendment.
Baroness ByfordMy Lords, I thank the Minister for the measure. I am sorry that the noble Lord, Lord Carter, has had to leave as he and noble Lords on all sides of the House tried to persuade the Government of the importance of introducing this amendment.
My noble friend Lord Dixon-Smith asked a couple of questions and I have further questions. We are in slightly unusual water at this stage. I say straight away that we are happy to accept these amendments. We welcome the way in which they address the concerns that have been raised during the various stages of the Bill's passage.
The Minister touched on my next point when he said that the new clause gives the Secretary of State the power to introduce an obligation—that is, he may do so—but it does not require him so to do. I am still a little disappointed with that phraseology. The Minister will no doubt comment on that because I am sure that the Government are committed to the measure. I accept that something may be done later rather than sooner, but some of us on this side of the House would like to have the measure more clearly defined than it is in the new clause at present. Will the Minister clarify the Government's intentions in that regard? The noble Lord, Lord Ezra, raised the important issue of how that will relate to the requirements within the EU directive.
Sitting next to the noble Lord, Lord Ezra, is the noble Baroness, Lady Miller of Chilthorne Domer. She and I faced exactly the same situation when
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dealing with the Water Bill. I record my dismay that we are dealing with the Bill as best we can while other directives are emerging which have a bearing on what we should be doing, but we have to discuss them at different times. They do not coincide. In future, if ever we can, it will be much better to avoid being in the situation in which we find ourselves.
1.30 p.m.
Obviously I am grateful that consultation will take place, but can the Minister give me some idea of the time plan for it? When does he think that it will be completed? On what time scale will the orders come through? Is he talking in terms of six months or a year? They will need to address technical issues.
My noble friend Lord Dixon-Smith raised two specific questions that I shall not repeat, but I have a further question. I draw the Minister's attention to proposed new subsection (1) in his Amendment No. 30, in which biofuel means,
liquid or gaseous fuel that is produced wholly from biomass.
A query with that was raised with me this morning; if it had been raised yesterday, I would have tabled an amendment. It is impractical to have biofuel defined as "wholly from biomass" because it would exclude certain combinations, such as bio-ETBE, and processes, not to mention any bioethanol with a necessary admix of denaturant. Would it not be much safer to describe biofuel as "principally from biomass"? That would cover any new combinations from which we could produce biofuel.
I spoke to the Clerks, and it would be possible for me to move such an amendment and for the Minister to accept it, although it would be slightly unusual. I apologise to noble Lords; my attention was not drawn to the issue until it was too late to table an amendment. I am slightly in the Minister's hands on that issue.
I thank the Minister for all the work that has gone into the provisions. The noble Lord, Lord Carter, touched on the fact that biofuels will have enormous benefits for the farming industry at an increasingly difficult time. Biofuels, combined with the commitment to provide a strategy on micro-generation, will give our farmers another string to their bow in terms of survival and their ability to meet future environmental responsibilities. We support them.
Lord Jenkin of RodingMy Lords, while the Minister's advisers are dealing with the string of very relevant questions put to him by my noble friend Lady Byford, I want to ask one rather simple question. I have read through the many pages of proposed new clauses. Do they apply in any way to the suppliers of fuel for the aviation industry? There seems nothing specific to exclude them. Can there be some use of the new obligation to impose pressure on the aviation industry to become more sustainable?
It is a very regrettable fact that more tax is paid on a lorry-load of lettuces from Lincolnshire than on a whole planeload of cargo of cantaloupes from California. There is a soundbite for noble Lords.

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No tax is paid at the moment on aviation. The pressure to become more efficient is not applied properly in the area.
Lord WhittyMy Lords, I am grateful for the support from all round the Chamber, especially that of my noble friend Lord Carter, the noble Lord, Lord Ezra, and, in his absence, the noble Lord, Lord Palmer. They have been constant protagonists for this or a similar solution for biofuels. The noble Lord, Lord Ezra, was right to say that the definition of "somewhat" had been expanded beyond all our understanding. However, that is in order that—as the noble Lord, Lord Carter, said—we have a robust operation if we take decisions to go down the road as the best way of promoting biofuels in the transport market. It is largely a mirror of what applies to the ROCs in generation.
Some of the features and structures are more or less equivalent, so some of the answers to the questions asked by the noble Lord, Lord Dixon-Smith, and others are that we are using the pattern to apply to the fuel supply companies. That means that there is provision for an administrator. All regulators normally have some obligation to cover costs; they are all subject to approval of their charges, of course, and of the general obligations on efficiency in the public sector. It is not an unusual provision for a regulator to be able to charge to cover its costs. Likewise, the issue of selling and tradability is more or less the equivalent of the situation with ROCs, as are discharge by payment and potential penalties. The administrator has discretion to impose a penalty of appropriate size. It would have to be one of the lesser of the specified amounts relative to the offence, and 10 per cent. Some of that may be covered in regulations, but the key principle is clearly proportionality.
The noble Lord, Lord Ezra, asked how the issue related to the biofuels directive. Consultation on how we implement that directive has just finished from the Department of Transport. The directive sets indicative rather than obligatory targets, but we are required to report to the Commission how we will achieve those targets and the policies that need to be put in place. The level of take-up of biofuels in the UK is so low that there is no possibility of achieving the target set by the EU for 2005, so we have to focus on the 2010 target and measures that might bring us to meet that.
The noble Baroness made some general points about how much was in regulations and how much was in the Bill. There is clearly a fair amount of detail in the Bill, but we will have to consult on the principle, as well as on the details of what will be in the affirmative resolutions when we have adopted the principle. Therefore, it is difficult to give an answer on the timing. If we took a decision, all the timing would stem from the point at which we took the decision in principle. As my noble friend Lord Carter said, the option needs to be there, in order that we can have legislative backing for moving down the road.
As noble Lords who have followed the debate will know, there have been other suggestions—not all of which are dead yet—to aid biofuels. They have varied
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from greater fiscal incentives, to capital allowances and other measures to support the industry. Some of them may be needed to meet the requirement, and to aid the agriculture sector to meet the bulk of it from domestic production. We need legislative backing here but not elsewhere. If we go down this road, we therefore need fairly detailed legislative powers.
The noble Baroness, Lady Byford, raised the subject of the definition of renewable transport fuels. I understand that the definition is flexible enough to cover the issues to which she referred, as they are part of the production of fuel based fully on biofuel sources. The fuels could therefore be labelled biofuels or other renewable fuels. The other aspect to the matter is that one can achieve the target under the obligation by blending biofuels with conventional fuels. That certainly would not be prohibited. The proportion that was biofuels would go towards meeting the target and therefore towards meeting the obligation.
I turn to the subject of aviation, raised by the noble Lord, Lord Jenkin. Aviation fuel can be included, and the affirmative resolutions may or may not include aviation fuel at some point. As the noble Lord will be aware, there are some technical problems. Whereas biofuels and biofuel blends have fairly well proven technology, so long as the quality control is sufficient, in relation to road vehicles, there is no similar proven technology in relation to aviation fuel. But there is no reason why that should not be the case over the timescale within which we set the obligation. Therefore, theoretically aviation fuel could be covered.
The noble Lord's comments about aviation touched on a point raised at Question Time—that is, whether the aviation industry was making a contribution in the area of climate change. The taxation of aviation fuel is, directly or indirectly, an important issue, but there must be an international, or at least a European, consensus on that before we can move heavily down that road.
That subject goes somewhat beyond this amendment. However, the amendment would allow the Government and the administrator flexibility to ensure that a biofuels obligation could be made effective. It would also allow them to ensure that the transport sector, which at present, as the noble Lord, Lord Ezra, said, is the least controllable in terms of carbon discharge, could begin to use an already proven technology to make a major contribution towards achieving those objectives.
On Question, Motion agreed to.

COMMONS AMENDMENTS
21 Leave out Clause 129
22 After Clause 129, insert the following new clause—
"Imposition of renewable transport fuel obligations

The Secretary of State may by order impose on each transport fuel supplier of a specified description the obligation mentioned in subsection (a "renewable transport fuel obligation").

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That obligation is an obligation, for each specified period, for the supplier to produce to the Administrator, by the specified date, evidence which—

is of the specified kind and in the specified form; and

shows that during the specified period the specified amount of renewable transport fuel was supplied at or for delivery to places in the United Kingdom.

An order under subsection (1) is referred to in this Chapter as an "RTF order".

Before making an RTF order the Secretary of State must consult such persons appearing to him to represent persons whose interests will be affected by the order, and such other persons, as he considers appropriate.

The power to make an RTF order is subject to the affirmative resolution procedure.

23 Insert the following new clause—
"The Administrator

An RTF order may, for the purposes of provision made by or under this Chapter, appoint a person as the Administrator.

Such an order may—

confer or impose powers and duties on the Administrator for purposes connected with the implementation of provision made by or under this Chapter;

confer discretions on the Administrator in relation to the making of determinations under such an order and otherwise in relation to his powers and duties; and

impose duties on transport fuel suppliers for purposes connected with the Administrator's powers and duties.

The powers that may be conferred on the Administrator by virtue of subsection include, in particular—

power to require a transport fuel supplier to provide him with such information as he may require for purposes connected with the carrying out of the Administrator's functions;

power to impose requirements as to the form in which such information must be provided and as to the period within which it must be provided;

power to impose charges of specified amounts on transport fuel suppliers.

Sums received by the Administrator by virtue of provision within subsection must be used by him for the purpose of meeting costs incurred by him in carrying out his functions as the Administrator.

The duties that may be imposed by virtue of subsection include, in particular, duties framed by reference to determinations made by the Administrator.

Only the following persons may be appointed as the Administrator—

a body or other person established or appointed by or under any enactment to carry out other functions;

a body established by virtue of subsection.

Where provision is made by an RTF order for the appointment of a body or other person within subsection, such an order may make such modifications of any enactment relating to that body or person as the Secretary of State considers appropriate for the purpose of facilitating the carrying out of the functions of the Administrator.

An RTF order may—

establish a body corporate to be appointed as the Administrator;

make provision for the appointment of members of that body;

make provision in relation to the staffing of that body;

1406

make provision in relation to the expenditure of that body;

make provision regulating the procedure of that body;

make any other provision that the Secretary of State considers appropriate for purposes connected with the establishment and maintenance of that body.

The provision that may be made by virtue of subsection in relation to a body corporate includes, in particular, provision conferring discretions on—

the Secretary of State;

the body itself; or

members or staff of the body.

The Secretary of State may make grants to the Administrator on such terms as the Secretary of State may determine."

24 Insert the following new clause—
"Further provision relating to RTF orders

An RTF order may make provision about how amounts of transport fuel are to be counted or determined for the purposes of provision made by or under this Chapter.

The provision that may be made by virtue of this section includes, in particular—

provision for amounts of renewable transport fuel to count towards discharging a renewable transport fuel obligation for a period only if the fuel is of a specified description;

provision for amounts of renewable transport fuel of a specified description to count towards discharging such an obligation only up to a specified amount;

provision for such an obligation not to be treated as discharged unless a specified minimum amount of renewable transport fuel of a specified description has been counted towards its discharge;

provision for only such proportion of any renewable transport fuel of a specified description as is attributable to a specified substance, source of energy, method, process or other matter to count towards discharging such an obligation;

provision as to how that proportion is to be determined;

provision for an amount of renewable transport fuel of a specified description to count towards discharging such an obligation only if, or to the extent that, specified conditions are satisfied in relation to its supply, the person by or to whom it was supplied or the place at or for delivery to which it was supplied;

provision for evidence produced by a supplier in relation to any fuel not to count for the purposes of his renewable transport fuel obligation for a period if evidence in relation to the same fuel has previously been produced (whether by him or by another supplier);

provision for evidence produced by a supplier in relation to any fuel not to count for those purposes if, after the supply to which the evidence relates, the fuel is supplied by any person at or for delivery to a place outside the United Kingdom or a specified part of the United Kingdom;

provision about the measurement of amounts of different descriptions of transport fuel;

provision for units of transport fuel of a specified description to count for more or less than the same units of transport fuel of other descriptions;

provision about how measurements in different units of different descriptions of transport fuel are to be aggregated;

provision for the application of presumptions where specified matters are shown.

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The provision that may be made by virtue of this section also includes, in particular, provision which—

is made having regard to one or more of the effects mentioned in subsection (4) (whether in the United Kingdom or elsewhere); or

requires regard to be had to one or more such effects.

Those effects are the effects of the production, supply or use of fuel of a particular description on—

carbon emissions;

agriculture;

other economic activities;

sustainable development; or

the environment generally.

25 Insert the following new clause—
"Renewable transport fuel certificates

An RTF order may make provision for the Administrator to issue certificates to transport fuel suppliers ("RTF certificates").

An RTF certificate is to certify—

that the supplier to whom it is issued has supplied the amount of renewable transport fuel stated in the certificate;

that that amount of such fuel was supplied by him during the period stated in the certificate;

that that amount of such fuel was supplied by him during that period at or for delivery to a place in the United Kingdom or in the part of the United Kingdom stated in the certificate; and

the other specified facts.

Such a certificate may be issued to a supplier only if—

he applies for it in the specified manner;

his application includes evidence of the specified kind and in the specified form; and

the other specified conditions are satisfied.

An RTF order may authorise transfers of RTF certificates (whether for a consideration or otherwise) between persons of specified descriptions.

Such an order may also provide that such a transfer is not to be effective unless—

the specified details of it have been notified to the Administrator in the specified manner and within the specified time; and

the other specified requirements have been complied with.

If a supplier produces an RTF certificate to the Administrator, it is to count for the purposes of section (Imposition of renewable transport fuel obligations)(2) as sufficient evidence of the facts certified.

An RTF order may provide that, in specified circumstances, evidence produced by virtue of subsection may count to the specified extent towards the discharge of a renewable transport fuel obligation for a period even if it is produced after the time by which evidence had to be produced for the purposes of that obligation.

Such an order may also provide that, in specified circumstances, evidence produced by virtue of subsection may count to the specified extent towards the discharge of a renewable transport fuel obligation for a period that is later than the period stated in the certificate in question in accordance with subsection."

26 Insert the following new clause—
"Discharge of obligation by payment

An RTF order may provide that a person who does not wholly discharge his renewable transport fuel obligation for a period by the production of evidence must pay the Administrator the specified sum within the specified period.

The provision that may be made by virtue of subsection (1) includes, in particular, provision—

for the specified sum to increase, in cases where that sum is not paid within a specified period, at the specified rate until it is paid or until the occurrence of a specified event;

for specified amounts to be adjusted from time to time for inflation in the specified manner;

for the repayment of sums in cases where provision made by virtue of section (Renewable transport fuel certificates)(7) applies in relation to a person;

prohibiting the Administrator from taking steps to recover the specified sum or a part of that sum if specified conditions are satisfied.

Provision within subsection may refer, in particular, to a specified index or to other data, including any index or data as modified from time to time after the coming into force of the order.

An RTF order may provide that, in a case in which the amount of payments by virtue of subsection (1) which the Administrator has received by the specified time in respect of renewable transport fuel obligations for any period falls short of the amount due in respect of that period, the persons who—

were subject to renewable transport fuel obligations for that period, and

are of a specified description,
must, within the specified period and in the specified circumstances, each make a payment (or further payment) to the Administrator of an amount calculated in the specified manner.

The provision that may be made by virtue of subsection includes, in particular, provision for the making of adjustments and repayments after a requirement to make payments has already arisen.

An RTF order may require the Administrator to use, to the specified extent, the sums received by him by virtue of this section for the purpose of meeting costs incurred by him in carrying out his functions as the Administrator.

To the extent the Administrator does not so use the sums so received, they must be paid by him to transport fuel suppliers, or to transport fuel suppliers of a specified description, in accordance with the specified system of allocation."

27 Insert the following new clause—
"Imposition of civil penalties

An RTF order may—

designate a provision made by or under this Chapter for the purposes of this section; and

provide that a person is to be liable to a civil penalty if—

he contravenes that provision; and

any other specified conditions are satisfied.

Where the Administrator is satisfied that a person (the "defaulter") is so liable, he may give a notice to the defaulter in the specified manner (a "civil penalty notice") imposing on the defaulter a penalty of such amount as the Administrator considers appropriate.

That penalty must not exceed the lesser of—

the specified amount; and

1409

the amount equal to ten per cent of the turnover, as determined in the specified manner, of the specified business of the defaulter.

The civil penalty notice must—

set out the Administrator's reasons for deciding that the defaulter is liable to a penalty;

state the amount of the penalty that is being imposed;

set out a date before which the penalty must be paid to the Administrator;

describe how payment may be made;

explain the steps that the defaulter may take if he objects to the penalty; and

set out and explain the powers of the Administrator to enforce the penalty.

The date for the payment of the penalty must not be less than 14 days after the giving of the civil penalty notice.

A penalty imposed by virtue of this section must be paid to the Administrator—

by the date set out in the civil penalty notice by which it is imposed; and

in a manner described in that notice.

Sums received by the Administrator by virtue of this section must be paid to the Secretary of State, who must pay them into the Consolidated Fund."

28 Insert the following new clause—
"Objections to civil penalties

A person to whom a civil penalty notice is given may give notice to the Administrator that he objects to the penalty on one or both of the following grounds—

that he is not liable to pay it;

that the amount of the penalty is too high.

The notice of objection—

must set out the grounds of the objection and the objector's reasons for objecting on those grounds; and

must be given to the Administrator in the specified manner and within the specified period after the giving of the civil penalty notice.

The Administrator must consider a notice of objection given in accordance with this section and may then—

cancel the penalty;

reduce it;

increase it; or

confirm it.

The Administrator must not enforce a penalty in respect of which he has received a notice of objection before he has notified the objector of the outcome of his consideration of the objection.

That notification of the outcome of his consideration must be given, in the specified manner—

before the end of the specified period; or

within such longer period as he may agree with the objector.

Where, on consideration of an objection, the Administrator increases the penalty, he must give the objector a new civil penalty notice; and, where he reduces it, the notification mentioned in subsection must set out the reduced amount."

29 Insert the following new clause—
"Appeals against civil penalties

A person to whom a civil penalty notice is given may appeal to the court on one or both of the following grounds—

that he is not liable to pay the penalty;

that the amount of the penalty is too high.

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An appeal under this section must be brought within such period after the giving of the civil penalty notice as may be set out in rules of court.

On an appeal under this section, the court may—

allow the appeal and cancel the penalty;

allow the appeal and reduce the penalty; or

dismiss the appeal.

An appeal under this section is to be by way of a rehearing of the Administrator's decision to impose the penalty.

The matters to which the court may have regard when determining an appeal under this section include all matters that the court considers relevant, including—

matters of which the Administrator was unaware when he made his decision; and

matters which (apart from this subsection) the court would be prevented from having regard to by virtue of rules of court.

An appeal under this section may be brought in relation to a penalty irrespective of whether a notice of objection under section (Objections to civil penalties) has been given in respect of that penalty or whether there has been an increase or reduction under that section.

In this section "the court" means—

in England and Wales or Northern Ireland, the High Court; and

in Scotland, the Court of Session."

30 Insert the following new clause—
"Interpretation of Chapter 5 of Part 3

In this Chapter—

"Administrator" means the person appointed by virtue of section (The Administrator) as the Administrator for the purposes of provision made by or under this Chapter;

"biofuel" means liquid or gaseous fuel that is produced wholly from biomass;

"blended biofuel" means liquid or gaseous fuel consisting of a blend of biofuel and fossil fuel;

"civil penalty notice" has the meaning given by section (Imposition of civil penalties)(2);

"renewable transport fuel" means—

biofuel;

blended biofuel;

any solid, liquid or gaseous fuel (other than fossil fuel or nuclear fuel) which is produced—

wholly by energy from a renewable source; or

wholly by a process powered wholly by such energy; or

any solid, liquid or gaseous fuel which is of a description of fuel designated by an RTF order as renewable transport fuel;

"renewable transport fuel obligation" has the meaning given by section (Imposition of renewable transport fuel obligations)(1);

"RTF order" has the meaning given by section (Imposition of renewable transport fuel obligations)(3);

"specified" means specified in, or determined in accordance with, an RTF order;

"supply" means, in relation to fuel, the supply of that fuel to any person with a view to its being used (whether by that person or persons to whom it is subsequently supplied) wholly or primarily for transport purposes;

1411

"transport fuel" means—

renewable transport fuel;

fossil fuel; or

any solid, liquid or gaseous fuel that is neither renewable transport fuel nor fossil fuel;

"transport fuel supplier" means a person who, in the course of any business of his, supplies transport fuel at or for delivery to places in the United Kingdom.

For the purposes of this section a process powered by electricity that was generated by energy from a particular source is to be treated as being powered by energy from that source.

For the purposes of this section fuel is used for transport purposes if—

it is used as fuel for one or more of the following, namely, vehicles, vessels, aircraft, trains or any other mode of transport; or

it is used for producing fuel that is intended to be so used.

In this section—

"biomass" means the biodegradable portion of a specified product, waste or residue;

"fossil fuel" has the same meaning as in section 32 of the 1989 Act;

"renewable source" means, in relation to energy, any of the following sources of energy—

wind;

solar heat;

water (including waves and tides);

geothermal sources; or

biomass."

31 Before Clause 169, insert the following new clause—
"Annual report on security of energy supplies

The Secretary of State must, in 2005 and in every subsequent calendar year—

publish a report dealing, as regards both the short term and the long term, with the availability of electricity and gas for meeting the reasonable demands of consumers in Great Britain; and

lay that report before Parliament.

The report must include, in particular, overall assessments, as regards both the short term and the long term, of each of the following—

generating capacity in Great Britain and its offshore waters so far as it will be utilised for generating electricity for introduction into transmission systems in Great Britain;

the availability of capacity in those systems and in distribution systems in Great Britain for transmitting and distributing electricity for supply to consumers in Great Britain;

the availability of capacity in infrastructure in Great Britain for use in connection with the introduction of gas into licensed pipe-line systems in Great Britain; and

the availability of capacity in those systems for conveying gas to consumers in Great Britain.

The report must be prepared jointly by the Secretary of State and GEMA.

In this section—

"consumers" includes both existing and future consumers;

ributing", "distribution system", "transmission system" and "transmitting" have the same meanings as in Part 1 of the 1989 Act;

1412

gas" and "gas transporter" have the same meanings as in Part 1 of the Gas Act 1986 (c. 44);

infrastructure" includes pipe-line systems, terminals and other facilities but does not include licensed pipe-line systems;

licensed pipe-line system" means a pipe-line system that is operated by a gas transporter for the conveyance of gas to any premises or another pipeline system as authorised by his licence under section 7 of that Act;

"offshore waters" means, in relation to Great Britain—

so much of the territorial sea of the United Kingdom as is adjacent to Great Britain; and

waters in a Renewable Energy Zone (within the meaning of Chapter 1 of Part 3 of this Act)."

Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 21 to 31.
Moved, That the House do agree with the Commons in their Amendments Nos. 21 to 31.—(Lord Whitty.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
32 Clause 181, page 138, line 38, leave out from "must" to end of line 46 and insert—

publish a draft of any scheme proposed to be established by the order;

publish an assessment of the costs likely to be incurred by different persons in consequence of the order; and

consult authorised suppliers and such other persons likely to be affected by the order as he considers appropriate.

( ) An assessment published under subsection (7)(b) must set out, in particular, the Secretary of State's assessment of the likely effect of the order on charges for electricity in Great Britain.
( ) Subsection (7) may be satisfied by publications and consultation taking place wholly or partly before the commencement of this section.
33 Page 139, line 30, leave out "An order under" and insert "The power to make an order containing provision authorised by
Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 32 and 33 to what was Clause 181 when it left this place. The clause concerned the power to allow an adjustment to transmission charges for renewable generators in a specific area.
These government amendments are made, by and large, by simple drafting changes. They do not seek to alter the spirit of the amendments made here, except perhaps in that they remove the duty on the Secretary of State to produce an annual report covering the costs and impact of any scheme established under the clause. On that point, the cost of any scheme to consumers should not change substantially from year to year, and therefore the requirement for an annual report seems unnecessary.
It is also worth remembering that the scheme will have a duration of only five years. After that time, another order would be needed to extend it or to create another scheme for a maximum of a further five years.

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At that point, the costs and benefits of any extension would be published and no doubt, if necessary, debated. An annual report in relation to this power would only be an unnecessary addition to bureaucracy.
The amendments also make it clear that consultation on the use of the power may take place before this section is commenced. I do not think that there is any hostility to that. Such a provision was not in place previously, and the amendments provide for that. The other changes are simple drafting changes.
Moved, That the House do agree with the Commons in their Amendments Nos. 32 and 33.—(Lord Whitty.)
Lord Jenkin of RodingMy Lords, I moved the original amendment introducing the new clause at Third Reading. I well remember that the House accepted it with a significant majority against the Government's advice. I can only say how delighted I am that the Government have now recognised that there is merit in the proposal that we put forward—particularly the proposal that there should be a draft scheme and an assessment of the likely costs and how the costs will fall on different persons.
I want to go one stage further. As I indicated in an earlier debate today, I believe that it would be helpful if in some way the costs of the whole renewable energy policy, which, as I said, is being paid for not by the Government but by consumers, could be reflected as a renewable energy surcharge on consumers' bills. They are paying for it, but the costs are not separated out. At least, under this clause, for the transmission purpose there will now be a draft of the scheme, an assessment of the costs likely to be incurred and an obligation to consult. That preserves the heart of the new clause which we inserted, and that I welcome. I am glad that it has survived what otherwise might have been the chop.
On Question, Motion agreed to.

COMMONS AMENDMENTS
34 Clause 189, page 145, line 39, after "than" insert "sections (Imposition of civil penalties) to (Appeals against civil penalties) or
35 Clause 194, page 150, line 6, after "sections", insert "(Microgeneration),"
Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 34 and 35.
Moved, that the House do agree with the Commons in their Amendments Nos. 34 and 35.—(Lord Whitty.)
On Question, Motion agreed to.

COMMONS AMENDMENT
36 Clause 194, page 150, line 8, leave out subsection (5)
Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendment No. 36. It deletes a privilege amendment inserted into the Bill when it left this House after Third Reading.
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Moved, That the House do agree with the Commons in their Amendment No. 36.—(Lord Whitty.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
37 Schedule 2, page 161, line 27, at end insert—
() The Secretary of State must lay before Parliament a copy of anything that the NDA publishes in accordance with subparagraph (1) or (2), and the Scottish Ministers must lay before the Scottish Parliament a copy of anything that is so published.
38 Schedule 3, page 164, line 5, at end insert—
() The Secretary of State must lay before Parliament a copy of anything that the NDA publishes in accordance with subparagraph (1) or (2), and the Scottish Ministers must lay before the Scottish Parliament a copy of anything that is so published.
39 Schedule 6, page 180, line 4, leave out "transfer"
40 Schedule 7, page 184, line 28, leave out "issued out of the Consolidated Fund" and insert "paid by the Secretary of State
41 Schedule 9, page 202, line 23, leave out "1988" and insert "Taxes"
Lord WhittyMy Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 37 to 41.
Moved, That the House do agree with the Commons in their Amendments Nos. 37 to 41.—(Lord Whitty.)
On Question, Motion agreed to.

Children Bill [H.L.]
1.47 p.m.
Read a third time.
Clause 2 [General function]:
Baroness Andrewsmoved Amendment No. 1: Page 1, line 7, leave out ", subject to the following provisions of this Part,"
The noble Baroness said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 5, 14, 16, 17 and 45. It will be fairly obvious to the House that these are technical amendments arising from a change made to the Bill on Report. I shall respond to the amendments tabled by the Opposition at the end of the debate.
As noble Lords will remember very well, when we debated this Bill on Report an amendment was passed that fundamentally changed the commissioner's general function under Clause 2. The main change was that instead of,
promoting awareness of the views and interests of children,
the commissioner is now,
promoting and safeguarding the rights and interests of children.
The other changes introduced by that amendment included restricting the commissioner's Clause 2 function to England and extending the definition of "children" for the purposes of Clause 2 to include certain groups of young adults.
I would not want to go back over the debate that we had on Report. I remind the House that my noble friend resisted that amendment and it is now a matter

1415
for debate at another time and in another place. But, today, in introducing these amendments I must correct certain anomalies that arose from the change to the Bill and I must correct one minor error in a reference to other legislation. By convention, we must ensure that the Bill leaves this House with any such anomalies corrected.
Perhaps I may briefly explain the amendments. Most of them are the result of restricting the commissioner's Clause 2 function to England. Amendment No. 1 removes words that are now simply superfluous. Those words were required when the commissioner's Clause 2 was UK-wide to make it clear that the UK role was subject to the conditions in Clause 6 that prevented the commissioner becoming involved in devolved matters in the other nations. Now that there is no UK-wide role in Clause 2, those words are clearly not required.
Amendment No. 14 is similar. Subsections (1) and (2) of Clause 6 respectively set out the restrictions on the commissioner's UK-wide function in Clause 2 and place a requirement on him to take account of the other commissioners' work and views when discharging that function. Now that there is no UK-wide role in Clause 2, these subsections are also redundant.
Amendments Nos. 16 and 17 are both needed in consequence of the removal of Clause 6(1) by government Amendment No. 14. Amendment No. 16 is needed to prevent the commissioner from holding an inquiry under Clause 4 into a case where the issues it raises relate to a devolved matter in relation to children in Wales, Scotland or Northern Ireland.
Amendment No. 17 prevents the Secretary of State directing the commissioner to hold an inquiry under Clause 5 where the issues it raises relate to a devolved matter in the other countries of the UK. So, those are the mirror clauses.
Those are the amendments that now arise from the commissioner's Clause 2 function becoming limited to England. The other two amendments in this group relate to the extension of the definition of the word "children" in Clause 2(10). Amendment No. 5 corrects a technical error. The subsection to bring care leavers over 18 within the commissioner's remit refers to the Children (Leaving Care) Act 2000. In fact, that is not right. The reference should be not to the 2000 Act but to the relevant sections of the Children Act 1989 which were inserted by the 2000 Act and set out the relevant local authority duties.
Amendment No. 45 qualifies the definition of "children" in Clause 52. As Clause 2(10) has widened the definition for the purposes of Clause 2, that fact must be reflected in the Clause 52 definition. I beg to move.
Lord Thomas of GresfordMy Lords, we on these Benches very much welcome that the Government have accepted the principle that the commissioner should be confined to England. We asked for that at Second Reading and the National Assembly certainly wanted it. In Amendments Nos. 7, 8, 11, 12 and 15, we
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have sought to tidy up the Bill in precisely the same way as the Government are tidying it up, so as to remove unnecessary references to Wales, Scotland and Northern Ireland. In Amendment No. 15, we have sought to make it clear that the Children's Commissioner will work with the commissioners for the respective countries on matters that are of a broad interest—such as children's rights and interests throughout the United Kingdom and that the Children's Commissioner for England will also work with the appropriate commissioners on individual matters that concern children in those countries. I hope that we shall hear from the Government that these tidying up amendments are accepted.
Baroness AndrewsMy Lords, I am grateful for that response and for the welcome given to the amendments. Amendments Nos. 7, 8, 11, 12 and 15 revisit the issue of the commissioner's role on UK-wide matters and his relationship with the other UK Children's Commissioners. As the amendments are rather complex and difficult to unpick, I want to go through them carefully. I shall start by explaining their consequences and why we cannot accept them as they are, and then set out in more detail the effect.
The package of amendments is clearly designed to follow through, as the noble Lord said, the consequences of what has happened to Clause 2. The current text of Clause 2, as amended by your Lordships' House on Report, restricts the commissioner's general function to England only. As I said, that is now a matter for debate in the other place. At the end of my remarks I shall say a few words on where we are in our discussions.
These amendments seek to "tidy up" the commissioner's other functions in the light of that change; so there is a logic in them. They are focused more on England than the other countries in the UK. However, if I may summarise, the consequence of the amendments would be to create a commissioner who can still carry out inquiries into non-devolved matters in the UK but who will be stripped of formal inquiry powers and who—I think this must be unintentional and I shall explain how it happened—will now be able to carry out inquiries into devolved matters across the UK as well. The result will be a gap in provision following from the fact that there will no longer be a commissioner who is able to carry out an effective inquiry into a non-devolved issue. I am sure that noble Lords would not want to see that.
I turn to the amendments in order to outline the specific effect of the amendments. Amendments Nos. 7 and 8 would remove the commissioner's inquiry powers, such as the power to call witnesses and evidence, when he is carrying out his own inquiries into individual cases in relation to Wales, Scotland and Northern Ireland. Amendments Nos. 11 and 12 similarly remove the commissioner's inquiry powers when he is carrying out inquiries directed by the Secretary of State in relation to those countries. The commissioner would still be able to carry out inquiries into non-devolved matters throughout the UK, but he would be gravely weakened. He would be left with no

1417
formal inquiry powers to back him up, only the hope that goodwill will prevail and witnesses will co-operate.
As I explained earlier, government amendment No. 14 removes Clause 6(1) and (2) as those provisions are consequential on the new Clause 2 England-only arrangements. By also removing Clause 6(3) and (4), however, Amendment No. 15 would remove the measures that we have currently set down in Clause 6 to reflect the realities of devolution and which prevent the commissioner carrying out his own inquiries into devolved matters. This will allow the commissioner to carry out inquiries, albeit without any formal powers, into devolved matters in other parts of the UK. I am sure that that was not the intention of noble Lords. Amendment No. 15 would also replace the existing Clause 6 with a requirement on the commissioner to consult and work together with the other commissioners on matters concerning rights and interests throughout the UK.
So, the overall effect would be rather paradoxical. The commissioner would be unable to carry out effective inquiries into non-devolved matters because he would be stripped of his formal powers of inquiry. He would still be able to carry out inquiries but they would not be meaningful. Given that the other UK commissioners are prevented from doing so at all, we would create a situation where no commissioner is able to carry out robust, effective inquiries into cases of individual children across the UK where the case is a non-devolved matter. I would argue that that would leave an unacceptable gap in provision for children who are affected by non-devolved issues such as immigration. Again, I am sure that that was not an intentional outcome.
I understand what noble Lords have tried to do. They have tried to address the gap through Amendment No. 15, by requiring the commissioner to work closely with his UK counterparts. We do not believe that that goes far enough to replace what we have now, which is a commissioner who has the necessary powers to carry out effective, independent inquiries into non-devolved matters and to report back to Westminster where the decisions on those matters are made.
So, although I cannot accept the amendments, I would hope to reassure noble Lords, as I have done throughout the passage of the Bill at every stage, that the whole issue of the commissioner's role in the UK and his relationship with the other commissioners is something that we have taken, and continue to take, very seriously indeed.
I described our intentions at Report stage. We are currently urgently considering ways of paving the way for effective working between the commissioners so that they can be the first port of call and single initial point of contact for children in those countries. Officials at the Department for Education and Skills are working extremely hard with colleagues across the UK to find a way forward to which all four nations can agree, and we hope to be able to offer something to
1418
that end when the Bill reaches another place. As I said on Report, that is the point that we have reached. I hope that noble Lords will think that that is sufficient.
I am grateful to noble Lords who have contributed. There has been relevant debate on these aspects of the Bill at all stages and we have certainly enjoyed contributing to that. With those assurances, I hope that noble Lords will not press their amendments.
On Question, amendment agreed to.
Lord Northbournemoved Amendment No. 2:
Page 2, line 24, at end insert—
() In carrying out his functions under this section the Commissioner must have regard to the importance of parents and other persons caring for children in improving the wellbeing of children.
The noble Lord saidMy Lords, I am moving this amendment at Third Reading because I was unable to move it on Report due to the success of a major opposition amendment to Clause 2. This House and indeed many of the children's charities have, on various grounds, been seriously concerned about the powers and duties which the Government plan for the commissioner. One of those grounds for concern was that he has no obligation to work with or to take into account the views of parents and others caring for children.
On Report the Government introduced an extremely helpful and important amendment to Clause 7. It may be helpful if I quote it. It stated:
In making arrangements under this section a children's services authority in England must have regard to the importance of parents and other persons caring for children in improving the well-being of children.
Many noble Lords welcomed that amendment. I am grateful to the noble Baroness for the way in which she has obviously persuaded her colleagues that it was a good idea. However, it does not touch on the work of the commissioner. Surely, what is sauce for the goose is sauce for the gander. I believe that the same clause or one slightly adapted as it must be, as in my amendment, should appear in the directions for the commissioner in Clause 2.
Before we pass the Bill on to another place, I should like to hear the Minister either accept the amendment in principle or give the House a convincing reason why it should not be accepted. I beg to move.
Baroness Howe of IdlicoteMy Lords, I support the amendment of my noble friend Lord Northbourne. He has consistently argued that the Bill should have a greater recognition of the important role of parents. Indeed, it was fairly amazing that there was no mention of parents when it first appeared. As he has acknowledged, the Government have made a concession in Clause 7.
I have read the extremely helpful letter sent to the noble Earl, Lord Howe, explaining some of the background to the establishment of the various objectives and a copy of the conclusions of Aim High: Stay Real. I could not help but notice the groups which were consulted. The children's own views identified

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friends and family, parents and carers. They would be expected to identify them and they did so. The importance for children was family and home. The practitioners' views were health and emotional well-being. I would interpret—and we will come to it later—emotional well-being as very much a role for parents and carers. So I quickly but heartedly support my noble friend's amendment and hope that we can ensure that the children's commissioner will have that duty.
Baroness WalmsleyMy Lords, we on these Benches also support the amendment in the name of the noble Lord, Lord Northbourne. We are of course aware of the importance of parents and families to the emotional well-being of children. We think that it would be a good signal of the Government's intent for the commissioner and his or her obligation to consult and involve parents at every stage of his or her work if such a phrase were to be put into the Bill.
Lord HyltonMy Lords, I support my noble friend's amendment. If this form of words, which we welcome very much, in Clause 7 is the right one for co-operation between agencies, I cannot see why it should not be equally important in the general function of the commissioner.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland)My Lords, I share noble Lords' respect for the noble Lord, Lord Northbourne, in consistently reminding us and, as the noble Baroness, Lady Howe, said, ensuring that the Government take seriously the question of parents. I am grateful for noble Lords' support and endorsement of our amendment.
I have to say that I disagree with what the noble Lord seeks to do for a very straightforward and simple reason. We have set up the commissioner with your Lordships' assistance in helping us to refine the post—and perhaps sometimes taking us in slightly different directions—in such a way that the commissioner is clearly focused around children and focused as an independent body looking to support and protect children in all the right ways in order to make sure their voices are heard.
I was particularly struck when the noble Baroness, Lady Walmsley, talked about involving parents at each and every stage. That might not always be the best way forward for children and young people. Young people need to feel that the commissioner is for them; mum and dad or their carer or foster parents are important people, but not so important in the commissioner's eyes as they are. That is the way it should be.
The reason I do not want the provision on the face of the Bill is not in any way to detract from the critical importance of parents, carers and family—far from it—but to say that the focus for the commissioner is around children and young children. To have even one very important group added as one to which the commissioner must have particular regard, changes the focus. So, with all respect and with an absolute understanding of the critical role of parents and carers,
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I just want the Bill to be crystal clear that the commissioner's job and responsibilities are around children and young people.
I am sure that part and parcel of the work of the commissioner will be that he or she will be talking to organisations and to parents and carers. But I would not want that on the face of the Bill for the reasons that I have given.
I hope that the noble Lord will accept that in the spirit in which it is given. I think the amendment changes the focus and that would be a pity. On that basis, I hope he will withdraw it.
Lord NorthbourneMy Lords, I am most grateful to the noble Baroness for that explanation. I asked for an explanation and I got one, although I am not wholly happy about it. I recognise the Government's intention is to put children at the very centre of the commissioner's work, but I think that when talking about children they are thinking of teenagers in particular. I know that younger children have opinions. But in varying degrees as they get younger and younger their opinions are perhaps influenced by short-term considerations and a lack of knowledge of the world around them; and parents and carers have a role to play in interpreting the needs and wishes of younger children. I should like to draw to the attention of the House the fact that half the nation's children are under the age of 13.
We must not think that teenagers represent children. Indeed, teenagers often have a special agenda which is different from that of younger children. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Walmsleymoved Amendment No. 3:
Page 2, line 26, leave out "section" and insert "Part"
The noble Baroness saidMy Lords, I rise to move Amendment No. 3 and to speak to Amendment No. 4. They also tidy up Clause 2. Amendment No. 3 to subsection (5) of Clause 2 proposes that the power to enter institutional premises and interview children, if necessary in private, should not only apply to the commissioner's general functions under Clause 2, but to the whole of Part 1.
The purpose is to ensure that the commissioner has this power when carrying out a formal inquiry under either Clauses 4 or 5. While we understand that the powers given to the commissioner in relation to formal inquiries include the right to summon witnesses and so on—and that is very welcome—they may not always be appropriate for children, and it may be necessary to enter premises and interview children in the course of an inquiry. So, we need this amendment to ensure that the commissioner has the full range of powers he needs to carry out the job.
Amendment No. 4 amends Clause 2(10) in a similar way. It would ensure that the extended definition of children, which we put into Clause 2 to include care leavers, young people in custody to the age of 22 and young people with disabilities to the age of 21, applies not only to the commissioner's general functions

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under Clause 2, but to the whole of Part 1, thus including the power to carry out formal inquiries under either Clauses 4 or 5 and the relationship with the other commissioners under Clause 6. I beg to move.
Baroness Ashton of UphollandMy Lords, I am grateful to the noble Baroness. I have listened carefully to the arguments put forward as we have debated these issues. As noble Lords know, we agree with the need for the power of entry in Clause 2 and that the commissioner's remit should be extended to include certain vulnerable groups of young children over the age of 18.
Looking specifically at Amendment No. 3, the reason that the Government sought to include the power of entry in Clause 2 was to ensure that under the more manageable general role that the Government still want to see for the commissioner, he or she would have the power to make sure he could seek the views of all children. Should the commissioner be carrying out an inquiry under Clauses 4 or 5, it would be in a more formal context. He or she would be able to summon witnesses and to take evidence under oath. There is simply no need to make the extension that the noble Baroness is seeking under the provisions of Clause 2(5), as it is already covered. Therefore, it is unnecessary. I have taken advice to ensure that is correct. If there is anything further to add, I will get the note now.
Baroness WalmsleyMy Lords, the Minister will have noticed from my face that I am rather puzzled. Is she confirming that there is no need to give a special power to enter premises under these circumstances because that is already covered in what we have done to the Bill? If she is, I am satisfied; if not, I am not satisfied.
Baroness Ashton of UphollandIndeed, my Lords. The noble Baroness would be right not to be satisfied. My understanding is that because we moved from a general power, which is about how to ensure that the commissioner can talk to all children, as we discussed on Report to the more formal powers of conducting an inquiry, the rules around formal powers come into being. Therefore, it is unnecessary to have both. He does not need to have those powers because he has the power to summon people to him in any event, so it is not an issue.
I have checked with the officials, and I understand why the noble Baroness is looking puzzled. If I discover that I have in any way misled the House by saying that, we will correct it in another place. My understanding is that we simply do not need it, because the nature of the formal powers means that the commissioner does not have the problem—which we sought to address under the other part—that he could not get access to children. Because he has formal powers under the inquiry, he does have access to children. The two merge to meet the same end.
It may not look like that, but I am reassured that that is the effect. Of course, if that is wrong I will correct it. There is no difference between us; that is
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what we both seek to achieve. I understand why the noble Baroness has brought this forward and I am grateful, but the effect is the same; the commissioner can reach the children that he needs to reach, because the powers enable him to do that. I will confirm that in another way, but the House can be reassured that is right.
I can see the logic behind Amendment No. 4, but I must resist it, partly for reasons of principle and partly on pragmatic grounds. The Government do not accept that when young offenders reach the age of 18 they are still "children". In the judicial system they are adults. Although I understand completely that noble Lords who have concerns about young offenders in our institutions would wish the commissioner to have some role, we have strong views about making sure that the commissioner is focused in the right way. The concerns about young adults in institutions need to be addressed in a different way by those who have responsibility for them. There is no desire on my part to run away or move away from resolving those issues. We simply do not believe that the commissioner can resolve all noble Lords' concerns.
I accept that there may be a stronger case in relation to care leavers and young people with learning disabilities, but the amendment as worded is defective, and I must oppose it for that reason. I made a commitment to widening the scope of the commissioner's remit to include young adults leaving care and those with learning disabilities. As noble Lords will know, I was not able to do that because of the adoption of the revised Clause 2 on a non-government amendment, which had more far-reaching provisions than those we were contemplating. I stand by that commitment, and I indicated on Report that there were issues about making the drafting more effective. Another place must look at Clause 2 and determine what it wishes to do. I stand by our commitment to ensure that the commissioner's remit is extended in an appropriate and legally accurate manner to cover those groups. I apologise to the House that I cannot do that now, but it must go to another place to ensure that the legal drafting is correct.
I hope that I have reassured the noble Baroness in respect of Amendment No. 3 that the commissioner can do what the noble Baroness wishes him to do. Our commitment to take forward learning disabilities and young people leaving care shows that we wish to do what the House wants us to do. I hope that the noble Baroness will withdraw her amendment.
The Earl of ListowelMy Lords, before the Minister sits down, there is the Children (Leaving Care) Act, which applies to children in care, and 30 to 40 per cent of young people in young offenders' institutions have come through care. I recently visited a young offenders' institution, and the governor had no idea that the Children (Leaving Care) Act applied to young people in her prison. There is a danger that if we do not include young offenders we will miss out a whole bunch of care leavers simply because the system is rather chaotic. Is it not safer to include them?
2.15 p.m.
Baroness Ashton of UphollandMy Lords, as I have indicated, we wish to do something in respect of care leavers. I have already indicated that we would do that. That would cover care leavers regardless of setting. The difference relates to the specific group that I have indicated of young adults in institutions. We want to ensure that they are classified as adults and that the system is able to support them and care for them in the most appropriate way.
Baroness WalmsleyMy Lords, I am grateful to the Minister for her reassurances on the subject of Amendment No. 3. On Amendment No. 4, I am disappointed that she is still resisting putting in young offenders. The logic of our amendment to include young people up to age 22 is that that is the age at which they move from young offenders' institutions into the adult penal system. I also welcome what the Minister said about putting right the extension of the definition of "children" in the other two respects in another place. Despite my disappointment, I hope that colleagues at the other end of the building will take up that point again. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 5:
Page 3, line 3, leave out paragraph (b) and insert—
(b) young people in respect of whom a children's services authority has duties under sections 23C to 24D of the Children Act 1989 (c. 41); and
On Question, amendment agreed to.
The Earl of Northesk The Earl of Northesk moved Amendment No. 6:
After Clause 3, insert the following new clause—
"FUNCTIONS OF THE SECRETARY OF STATE AS TO SHARING OF INFORMATION

The Secretary of State has the following specific functions in respect of the sharing of information—

to draw up and disseminate to the persons and bodies to whom this section applies guidance as to the sharing of information between and amongst themselves;

to draw up and disseminate to the persons and bodies to whom this section applies guidance as to the circumstances in which it is appropriate for those persons and bodies to share information between and amongst themselves;

to maintain under review the guidance set out in paragraphs (a) and (b) above.

In drawing up the guidance set out at subsection (1)(a) and (b) above, and in reviewing such guidance under subsection (1)(c) the Secretary of State shall consult with—

the Children's Commissioner;

the Information Commissioner;

such other interested persons and bodies with statutory responsibility for children as the Children's Commissioner sees fit.

The guidance under subsection (1)(a) and (b) above shall in particular make provision—

as to the nature of the information that, in the circumstances of the case, must or may be shared;

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as to procedures designed to ensure the accuracy and security of information shared;

as to procedures designed to ensure, where appropriate, the co-ordination of the sharing of information between and amongst relevant agencies and persons;

as to procedures designed to govern the circumstances in which information can be lawfully shared notwithstanding any rule of law which prohibits or restricts the disclosure of information;

as to procedures designed to guarantee, as appropriate, the rights of data subjects in respect of any information about them that may be shared;

as to procedures designed to govern the period for which it is appropriate that information should be shared and to ensure appropriate deletion of any information shared in compliance with the Data Protection Principles.

This section applies to the persons and bodies identified at section 7(1) and any agencies, companies or individuals who may be contracted to work for them or to supply goods and services to them.

The information for which provision may be made under this section may include—

information as to services provided to, or activities carried out in relation to, an individual child to whom arrangements referred to in section 8(1) relate; and

information which gives reasonable cause to suspect that a child is suffering or is likely to suffer significant harm.

The Secretary of State may by regulations subject to affirmative resolutions in each House of Parliament, proscribe and penalise contravention of any guidance under this section as to the collection, sharing, use, holding and disclosure of information."

The noble Earl saidMy Lords, at the outset, I offer my sincere thanks to the Minister for meeting me and my noble friend Lord Campbell yesterday. I can only hope that she found the occasion as fruitful and helpful as we did. Indeed, on the basis of our discussion, we have redrafted our amendment in an attempt to seek common ground with the Government's position. I will turn to that matter in due course.
First, for the sake of clarity, I will explain our principal objective in the amendment, namely to make provision for legally effective and enforceable statutory guidance in respect of the sharing of information among and between agencies working with children. We should be under no illusions as to the importance of that. It has been a recurrent theme in recent years. Sir Ronald Waterhouse's report Lost in Care states:
Guidance is required to social services departments and police forces now in relation to…the sharing of information generally for criminal investigation and child protection purposes".
Paragraph 23 of the introduction to Sir Michael Bichard's inquiry report states:
I suggest … that better guidance is needed on the collection, retention, deletion, use and sharing of information, so that police officers, social workers and other professionals can feel more confident in using information properly".
Clearly, there is an urgent requirement for improved systems to facilitate the sharing of information. That was the case four and a half years ago when the Lost in Care report was published; and it continues to be the case now. I concede that the Government have sought to strengthen the guidance in the intervening period and have come forward with the Bill. None the less, as

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evidenced by the Richard report, the problems associated with information sharing continue to be deeply acute.
The Government's preferred solution to that conundrum, referred to by the noble Lord, Lord Laming, as "an organisational malaise", is at least in part what is now Clause 9. It is important to recognise that our amendment is complementary, rather than antagonistic to this provision. Certainly, it does not in any way proscribe the use of databases. Indeed, in many respects, notably subsections (3)(e) and (3)(f), it implicitly promotes them. Moreover, the insertion of the amendment would go a long way to allaying most, if not all, of my concerns about Clause 9.
As I have consistently said, it is crucial to draw the distinction between the practical and technical problem of what sort of mechanisms should be put in place to ensure the appropriate recording of information about children and the cultural problem of how to ensure that the sharing of information—actually talking and communicating—is to be established between the various bodies, agencies and persons concerned with children's welfare. In my judgment Clause 9 is aimed at the first, but not the second. To that extent it is limited in scope, and our amendment would plug the gap.
In addition, while I pay due tribute to the Minister for striving to draw some of the sting of the original drafting of Clause 9, I continue to have deep-seated reservations about it, not least in respect of its potential cost-effectiveness, let alone whether it will actually inspire better and more co-ordinated sharing of information. More fundamentally, in the absence of any meaningful provision for enforcement in its drafting, I would be very hesitant about the prospect of it standing part of the Bill without the buttress of our amendment to qualify it.
I am also aware of certain misgivings about the original structure of our amendment, particularly the way in which it may have conferred too much responsibility and power on the commissioner. Indeed, the Minister expressed that as a concern at our meeting yesterday. In response, we have recast the amendment, so that the Secretary of State has the responsibility of preparing the relevant guidance in consultation with the commissioner and the other consultees listed in subsection (2), rather than the other way round. I should explain that, in the first instance, we felt that in so far as the commissioner is intended to be a children's champion—a point that the noble Baroness reinforced again today—it was more appropriate for him or her to have, as it were, ownership of the guidance, as a means of ensuring that it would be prepared from the perspective of children. In the event, the point is adequately covered in our redraft, on the basis that the commissioner is one of the consultees listed in subsection (2). Moreover, in terms of one of our primary aims for the amendment—giving legal effect to the guidance—there are not inconsiderable advantages in the Secretary of State being responsible for its preparation.
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I should acknowledge the view of the Minister that no single measure will address all the problems and difficulties associated with the sharing of information. What is required is a kaleidoscope of appropriate measures. I agree with that. Indeed, it should be self-evident that this has been part of the inspiration for our amendment and that we see it as a crucial element of this kaleidoscope.
I hope that I do not misrepresent the position of the noble Baroness here if I say that in reality she and the Government support what we are trying to achieve, but there may be residual nervousness about our drafting. With that in mind, I wonder whether, even if the noble Baroness cannot accept the amendment as it stands, she might be prepared to give an undertaking that the Government would be prepared to revisit the issue as the Bill goes through another place.
I also suspect that the Minister shares my view that for too long inter- and intra-agency guidance on the sharing of information in the field of child welfare has been too disparate, almost to the point of incoherence. That has acted as a spur to our efforts to draft the amendment. It is a regrettable but inescapable fact that in so far as we rely on the current themes in the report of Sir Ronald Waterhouse, the noble Lord, Lord Laming, and of Sir Michael Bichard, there continues to be a gap here. As I say, our aim is to draw the guidance together into a coherent whole and with legal effect, as a means of facilitating the appropriate sharing of information by professionals in the field and of instilling an improved culture of information sharing.
I close with this thought. The Government's response to Sir Ronald Waterhouse's report states:
The Government is determined to learn the lessons contained in Lost in Care. We must use it as a catalyst for meaningful and radical change in children's services.
I applaud that sentiment. Moreover, I hope that the Minister might feel able to offer some sympathy to our proposition in order to back it up. I beg to move.
Lord LamingMy Lords, I strongly support the general thrust of the amendment so ably outlined by the noble Earl, Lord Northesk. I am particularly grateful that he and his co-supporters have recast the amendment to meet some of the concerns expressed at an earlier stage of the proceedings.
The sharing of information is crucial and complex. It is important that as the Bill progresses towards becoming an Act it strikes the right note to ensure that the way in which information is shared commands the support not only of the general public, parents, children and young people but of the many professional people in the different organisation who will have responsibility in this field.
I believe that great progress has been made. Like other Members of the House, I was very impressed by the meetings we had with those carrying out pathfinding work in this area. I hope that the House will support the thrust of this amendment and that as the Bill progresses the amendment will be reshaped. In other words, I hope that the House will support the

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thrust of the amendment without signing up to the exact wording. I hope that is not too disappointing or too confusing.
Lord Campbell of AllowayMy Lords, the purpose of this speech is to seek to establish at this stage common ground on two assumptions. The first is that another place shall restore Clause 2 and not accept the amendments to it. The second assumption is that Clause 9, which is declaratory and supplemental to this amendment, shall stand part, if Amendment No. 6 commends itself in principle.
On that basis and on those assumptions, there are four matters of fundamental principle on which I seek common ground. The first is that the respective functions of the Children's Commissioner and of the Secretary of State should be clearly defined on the face of any clause. Secondly, on sharing information, the Secretary of State should have functions relating to the drawing up of guidance in consultation with the Children's Commissioner. Thirdly, the parameters and purposes of such guidance should be clearly defined in the Bill. Lastly, the Secretary of State should be enabled to make regulations to proscribe and penalise the contravention of any such guidance—in other words, the trigger clause of the Bill for secondary legislation.
If such be common ground, the fly in the ointment is the drafting, for which I take total responsibility. A parliamentary draftsman who had the requisite expertise could remove the fly from the ointment before the Bill reaches another place. In such circumstances, if the Minister could give a wholly satisfactory undertaking, there would be no need to divide on this amendment, and the House would no doubt wish to accept the undertaking.
My noble friend Lord Northesk will attend with unusual care to what the noble Baroness may say in the hope of not having to divide your Lordships' House.
2.30 p.m.
The Countess of MarMy Lords, I have added my name to this amendment because for many years the noble Earl, Lord Northesk, and I have discussed my concerns about mothers, in the main, who have had the wrong information entered into the current Samson computer. The noble Baroness knows that I have asked many times why it is that false information cannot be expunged from that computer, and I have been given a variety of reasons in response.
The amendment covers many of my concerns, especially about the accuracy and security of information to be shared, as well as the appropriate deletion of information shared in compliance with data protection principles. It will give a great deal of hope to many people. I should say that I have received many letters from mothers who have been falsely accused of Munchausen syndrome by proxy just on the word of someone en passant. That goes on to the record where it remains for ever. Such mothers are never able to work with children again. If we can prevent that happening, I would be absolutely delighted.
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I recognise that it may be necessary to brush up the amendment a little, but I would be extremely grateful to the Minister if she were prepared to accept it in spirit.
Lord Lester of Herne HillMy Lords, I have considerable sympathy with the object of the amendment, but I shall be extremely boring and pedantic as a lawyer. I hope that noble Lords will also forgive me for the fact that I have a terrible cold and therefore it is a pain to listen to me at all.
I simply do not understand why it should be a proper function of the Secretary of State to give such guidance rather than the Information Commissioner. Under our data protection legislation, which is comprehensive, the Information Commissioner normally gives guidance to all bodies in all circumstances about how to comply. Therefore it seems strange that one should write very detailed provisions into this Bill, including that the Secretary of State, in consultation with the Children's Commissioner, the Information Commissioner and many other bodies, should give guidance. I may be wrong about that, but I wanted to make the point.
My second point is more substantial than one simply of drafting, and it may be that the noble Lord, Lord Campbell of Alloway, will be able to explain it to me. Turning to subsection (3)(d) of the proposed new clause, I do not understand how the Secretary of State could give guidance,
as to procedures designed to govern the circumstances in which information can be lawfully shared notwithstanding any rule of law which prohibits or restricts the disclosure of information.
The rules of law which prohibit or restrict the disclosure of information are rules of law. Those rules are embodied in the European directive on data protection and in our data protection legislation. I do not understand how any Secretary of State could effectively lay down guidance that is contrary to rules of law. These points probably can all be answered, but I am puzzled.
Lord Campbell of AllowayMy Lords, I would be delighted to intervene, but we have reached Third Reading and an intervention in response would be complicated and take up much time. Since we are not in Committee, I decline to entertain the intervention.
Earl HoweMy Lords, I should like to add my support to the amendment tabled in the names of my noble friends. It addresses an issue of fundamental importance quite distinct from the debate that we have had about databases and the rules surrounding them. With the arrival of statutory joint working between agencies of many descriptions, governmental and non-governmental, we are entering territory in which one thing is depressingly predictable; that is, huge incertainty as regards what information it is legally permissible for one agency to share with another. There is enormous scope for confusion about what is legal and permissible under the Data Protection Act.
Where a child is at serious risk of harm, there is perhaps less confusion about information sharing—although the Soham case makes me hesitant about

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saying that. However, if a child is not at risk of immediate or serious harm, what are the rules then? What information is it permissible for a professional to share, and with whom? What principle determines whether information can be shared? The medical profession, to name but one example, is extremely exercised about this.
Equally, I suspect that there are many professionals who have no measurement tool by which to analyse and balance risk. Many are simply not trained to do this kind of thing. One has to ask how they are expected to adhere to the obligations set out in the Bill without some sort of clear guidance, and how can the public be confident that there is a real imperative for such guidance to be followed unless it is laid down in regulations that people have to do so—regulations that will, if necessary, provide the basis for judicial review in the event that they are not followed? Moreover, the procedures that are followed and the interpretation put on the legal duty of co-operation as it relates to information sharing need, as far as possible, to be consistent and uniform throughout the country. Only statutory guidance will achieve this, which is why, with some hesitation, I take issue with the noble Lord, Lord Lester of Herne Hill—which I do not do lightly—in his suggestion that it should be the Information Commissioner who draws up this guidance. If the guidance is to be statutory, a Minister of the Crown should be the one to draw it up.
I believe that my noble friends are to be congratulated on having pinpointed this very important issue and on having pursued it so tenaciously throughout the passage of the Bill. I support them.
Baroness BarkerMy Lords, throughout our debates on information sharing, noble Lords who have considered this Bill will know that I have worked quite closely with the noble Earl, Lord Northesk, and the noble Lord, Lord Campbell of Alloway. As I have said on many occasions, I believe that we stand on one side of a line and the noble Baroness stands on the other. We take very different views of the extent to which information sharing should be set within a tight framework.
Both noble Lords are to be congratulated on doing what this Bill singularly fails to achieve in Clause 9, which is to set out coherently and in one place all the points that professionals who need to share information about children need to know and observe. It is quite clear, from all the cases and reports cited by noble Lords, that perhaps more than ever before there is now deep confusion on the part of statutory agencies about exactly what information they may share and how they may do so. I agree with the comment that this matter will have to be returned to when this Bill is sent to another place, and I am sure that it will. However, the issue of information sharing between statutory bodies goes far wider and perhaps should be the subject of a whole new piece of legislation, which I suspect may well happen in the next Parliament.
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In the mean time, I hope that when the Minister returns to us with the regulations and guidance, having consulted the trailblazers and so forth, they will bear a greater resemblance to the amendment tabled by the noble Earl, Lord Northesk, than to Clause 9.
Baroness Ashton of UphollandMy Lords, I begin by saying to the noble Lord, Lord Lester, that the Information Commissioner has a role in providing general guidance around the Data Protection Act, but the specific guidance in such matters is addressed by the Secretary of State. In this case no one is either right or wrong; it is just different in terms of the guidance we are issuing.
I, too, express my thanks to the noble Earl, Lord Northesk, and the noble Lord, Lord Campbell of Alloway, for their time yesterday. I thought that we had an extremely useful and fruitful discussion around many of these issues. I am extremely grateful to both noble Lords for recasting their amendment.
It will come as no surprise that I do not intend to accept the amendment as it stands, for a number of different reasons. However, I hope that the reasons for which I will not accept it will find favour, particularly with those who tabled the amendment and with all noble Lords who have spoken. I hope one day to stand on the same side of the line as the noble Baroness, Lady Barker. I do not think that there is such a line in the sand—we seek the same thing, but as the noble Baroness, Lady Barker, will know, it is more complex to get there.
I also wish to reassure the noble Countess, Lady Mar, that there is no case information of any kind on the database. I understand the noble Countess's concerns. She has explained them to me and I continue to consider them, but in this context I hope that what I have said is of some assurance.
I am pleased that we have reached the point of recognising that the Secretary of State is responsible for bringing together the guidance. I am also pleased that the importance of the guidance has been well recognised in your Lordships' House in the way in which the amendment has been framed. I am also pleased that we have not lost sight of the role that the commissioner might play in that. Indeed, yesterday we reversed the amendments slightly, because it is important that as the commissioner develops expertise and talks to children and so on, he is able to feed into the guidance what he knows and what he believes to be right. I would want that to be part and parcel of the function. Without imposing an obligation on the commissioner, I would hope that it would be a natural part of the role.
The fundamental fly in the ointment, to borrow the phrase of the noble Lord, Lord Campbell, is that we do not need the amendment for the Secretary of State to issue the guidance that the noble Earl, Lord Howe and the noble Lord, Lord Campbell, seek. Under the Children Act 1989, the powers already exist. The noble Lords will remember that I went off to see the lawyers after we met yesterday to confirm and check. It is right and proper that one of the ways in which we are

1431
supported by parliamentary counsel and by legal opinion is by them ensuring that we do not duplicate existing law or make laws that are difficult to interpret. In this case, the 1989 Act already provides the powers.
As noble Lords will know, under Clauses 7, 8 and 9, the Secretary of State can issue guidance to which the recipient must have regard. We are clear that comprehensive statutory guidance is needed for the reasons given by noble Lords and not least because of what the noble Baroness, Lady Barker. said about taking away the lack of certainty around what sort of information should or should not be shared. Being clearer about the ways in which we want people to work together is important. Clarity, as the noble Earl, Lord Howe, said is important if we are to ensure that we safeguard children and protect them well. We must do so effectively and efficiently to ensure that our actions do not lead to the sort of negative outcome about which the noble Countess, Lady Mar, is so concerned.
I can also reassure the noble Earl, Lord Howe and the noble Lord, Lord Campbell, that almost all the issues that are mentioned in the amendment as needing to be supported by guidance will be covered by guidance under our proposals. I am grateful for the suggestions that have been made to me. In relation to (3)(a) in the amendment, we do not think it is right to set out a detailed list of information that practitioners must share because as the noble Lord, Lord Laming, said, we do not want to cut across the important general duty to share information. We might run the risk of information being excluded because people feel that it is not included in a list.
The noble Earl, Lord Howe, talked about the training needs of those involved. It is important that the work to do with guidance, support and information sharing is backed up by the kind of training and support that the professions need. Noble Lords who had the benefit of meeting the Trailblazers may remember that the vast majority of the £1 million given for each project had been spent on training, to very good effect. I do not underestimate for one moment the importance of that in ensuring that things work.
2.45 p.m.
The duties in Clauses 8, 21 and 23 involve an implied responsibility to share information when it is judged to be in the best interests of the child. We want this to be part and parcel of the way in which organisations and the professionals employed in them meet their duty under the clauses. The guidance that we are intending to produce under Clauses 7 and 8 will provide greater clarity on the circumstances under which information may be shared to promote the welfare, safety and well-being of children. We will make it clear how practitioners will be able to share information appropriately in compliance with the data protection principles in the Data Protection Act 1994. As the noble Lord, Lord Lester indicated, the Information Commissioner's guidance will come into play at this point.
1432
On the issue of the databases and new Clause 9, we will specify through regulations how they will operate and guidance and directions will set out what practitioners and those managing the databases should and must do. We plan to issue draft guidance in the autumn of this year and the guidance will be available before the duties are commenced next year, assuming that the Bill passes through this House and through another place. It will include guidance on information sharing as well.
We hope that we have covered as noble Lords would wish the areas of information sharing in both the guidance and the regulations, and how the implementation will be undertaken in the context of the training regime.
We are not in favour of regulations that will penalise contravention of the guidance. We want to rely on the traditional application of statutory guidance. We do not think that we should institute a separate regime for information issues. We must ensure that good information sharing practice is embedded in the overall approach to the planning and delivery of services. That is why we intend to cover information sharing in the statutory guidance under Clauses 7 and 8. Good practice in information sharing should be part of the overall good practice in the established inspection framework, and will form part of the professional development for the workforce as a whole. We want to ensure that we disseminate good practice as we identify it and work with professionals in so doing. We also want to ensure that all this is in place. The funding for any databases will be partly based upon whether all of this is in place, to ensure that there is appropriate use of the database.
Our general approach will be to use our existing powers under the Children Act, to use effectively the role of the Children's Commissioner and of the Information Commissioner and to deal with contravention using the Data Protection Act 1994. We want to ensure that statutory guidance is followed in the way in which it has traditionally been followed by professionals who understand its importance and relevance—who know that it cannot be ignored without good reason and good cause. We do not want to specify too rigidly on the face of the Bill the provisions on information sharing for fear of excluding elements of information sharing, which could be dangerous and would certainly be unsatisfactory. We do not want to move away from that principle.
I can say to the noble Earl, Lord Howe and the noble Lord, Lord Campbell, that we are continuing to discuss this area. I have no doubt, though I cannot predict, that it will be discussed in another place. We will continue to keep those who tabled the amendment in touch with what we are doing. As we develop the regulations and guidance we will ensure that noble Lords who have been part of the debate are aware of what is happening.

1433
[BARONESS ASHTON OF UPHOLLAND]
We are grateful for the points that have been raised. On the basis that we have covered with legislation, guidance and regulations all of those points, I hope that the noble Lords will feel able to withdraw their amendment.
The Earl of NortheskMy Lords, I am grateful to the Minister for her response. I am also grateful for the support offered by many of your Lordships to the amendment—particularly that offered by the noble Countess, Lady Mar, the noble Baroness, Lady Barker and my noble friends Lord Howe and Lord Campbell. As I must, I pay due heed to the strictures of the noble Lord, Lord Laming. He may rest assured that I draw a great deal of comfort from his support, qualified though it may be. Indeed, I favour his recommendation, namely that the underlying principles of the amendment should be supported on the basis that it would be knocked into shape in another place. Indeed, my noble friend Lord Campbell's remarks followed the same vein. However, it is a source of regret to me that the Minister chose not to pick up on the point.
The Minister assures me that the powers exist already under the Children Act 1989. However, this is the crucial point—the mere existence of the powers has not given rise since 1989 to any improvement to the culture of information sharing.
It strikes me as idiotic to continue to rely on the extant powers when the reports of Sir Ronald Waterhouse, the noble Lord, Lord Laming, and Sir Michael Bichard continue to demonstrate that a problem exists. Moreover, guidance issued under later clauses in the Bill, to our judgment, lack sufficient legal efficacy to ensure that it will be paid attention to.
For those two reasons—and with a deep sense of regret, in truth, because I do not believe that our position is very much removed from that of the Government—I think that I have no option other than to test the opinion of the House.
2.51 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
*Their Lordships divided: Contents, 109; Not-Contents, 122.

Division No. 1

CONTENTS

Addington, L.

Carnegy of Lour, B.

Alderdice, L.

Chadlington, L.

Allenby of Megiddo, V.

Chan, L.

Avebury, L.

Chorley, L.

Barker, B.

Clement-Jones, L.

Beaumont of Whitley, L.

Colwyn, L.

Biffen, L.

Cope of Berkeley, L.

Blatch, B.

Craig of Radley, L.

Bowness, L.

Craigavon, V.

Bradshaw, L.

Crickhowell, L.

Brooke of Sutton Mandeville, L.

Dean of Harptree, L.

Brougham and Vaux, L.

Dholakia, L.

Byford, B.

Dixon-Smith, L.

Campbell of Alloway, L. [Teller]

Dundee, E.

1434

Dykes, L.

Northbourne, L.

Eden of Winton, L.

Northesk, E. [Teller]

Elliott of Morpeth, L.

Northover, B.

Elton, L.

Oakeshott of Seagrove Bay, L.

Falkner of Margravine, B.

Park of Monmouth, B.

Ferrers, E.

Peel, E.

Fowler, L.

Perry of Southwark. B.

Garden, L.

Plummer of St. Marylebone, L.

Geddes, L.

Rawlings, B.

Greaves, L.

Redesdale, L.

Hamwee, B.

Rees, L.

Harris of Richmond, B.

Renton, L.

Hayhoe, L.

Roberts of Llandudno, L.

Hooson, L.

Rodgers of Quarry Bank, L.

Howe, E.

Roper, L.

Howe of Aberavon, L.

Rotherwick, L.

Hylton, L.

Russell-Johnston, L.

Jenkin of Roding, L.

Saatchi, L.

Jopling, L.

Seccombe, B.

King of Bridgwater, L.

Sharp of Guildford, B.

Knight of Collingtree, B.

Shaw of Northstead, L.

Lamont of Lerwick, L.

Shrewsbury, E.

Lawson of Blaby, L.

Shutt of Greetland, L.

Linklater of Butterstone, B.

Skelmersdale, L.

Livsey of Talgarth, L.

Smith of Clifton, L.

Lucas, L.

Steel of Aikwood, L.

McNally, L.

Taverne, L.

Maddock, B.

Tebbit, L.

Mar, C.

Thomas of Gresford, L.

Mar and Kellie, E.

Thomas of Walliswood, B.

Marlesford, L.

Thomson of Monifieth, L.

Masham of Ilton, B.

Tordoff, L.

Mayhew of Twysden, L.

Trenchard, V.

Methuen, L.

Wallace of Saltaire, L.

Miller of Chilthorne Domer, B.

Walmsley, B.

Miller of Hendon, B.

Walpole, L.

Montrose, D.

Wilcox, B.

Mowbray and Stourton, L.

Williams of Crosby, B.

Naseby, L.

Williamson of Horton, L.

Noakes, B.

Windlesham, L.

Worcester, Bp.

NOT-CONTENTS

Acton, L.

Drayson, L.

Ahmed, L.

Dubs, L.

Amos, B. (Lord President of the Council)

Elder, L.

Evans of Parkside, L.

Ampthill, L.

Evans of Temple Guiting, L.

Andrews, B.

Falconer of Thoroton, L. (Lord Chancellor)

Archer of Sandwell, L.

Ashton of Upholland, B.

Falkender, B.

Bassam of Brighton, L.

Farrington of Ribbleton, B.

Berkeley, L.

Faulkner of Worcester, L.

Bernstein of Craigweil, L.

Filkin, L.

Billingham, B.

Gale, B.

Blackstone, B.

Gibson of Market Rasen, B.

Bledisloe, V.

Golding. B.

Blood, B.

Goldsmith, L.

Borrie, L.

Gould of Potternewton, B.

Brooke of Alverthorpe, L.

Graham of Edmonton, L.

Brookman, L.

Greengross, B.

Campbell-Savours, L.

Grocott, L. [Teller]

Carter, L.

Harris of Haringey, L.

Christopher, L.

Harrison, L.

Clarke of Hampstead, L.

Hart of Chilton, L.

Clinton-Davis, L.

Hayman, B.

Cohen of Pimlico, B.

Henig, B.

Corbett of Castle Vale, L.

Hilton of Eggardon, B.

Crawley, B.

Hogg of Cumbemauld, L.

Darcy de Knayth, B.

Hollis of Heigham, B.

David, B.

Howarth of Breckland, B.

Davies of Coity, L.

Howells of St. Davids, B.

Davies of Oldham, L. [Teller]

Hoyle, L.

Dean of Thornton-le-Fylde, B.

Hughes of Woodside, L.

Dixon, L.

Hunt of Kings Heath, L.

1435

Irvine of Lairg, L.

Richard, L.

Joffe, L.

Rogan, L.

Jordan, L.

Roll of Ipsden, L.

Judd, L.

Rosser, L.

Kirkhill, L.

Sainsbury of Turville, L.

Laming, L.

Sandwich, E.

Lea of Crondall, L.

Sawyer, L.

Lipsey, L.

Sheldon, L.

Listowel, E.

Simon, V.

Macdonald of Tradeston, L.

Slim, V.

McIntosh of Haringey, L.

Stone of Blackheath, L.

MacKenzie of Culkein, L.

Strabolgi, L.

Mackenzie of Framwellgate, L.

Symons of Vernham Dean, B.

McKenzie of Luton, L.

Temple-Morris, L.

Maginnis of Drumglass, L.

Thornton, B.

Massey of Darwen, B.

Tomlinson, L.

Merlyn-Rees, L.

Triesman, L.

Mitchell, L.

Truscott, L.

Molyneaux of Killead, L.

Tunnicliffe, L.

Morgan of Drefelin, B.

Turner of Camden, B.

Morris of Aberavon, L.

Uddin, B.

Moser, L.

Wall of New Barnet, B.

Ouseley, L.

Warner, L.

Parekh, L.

Watson of Invergowrie, L.

Pitkeathley, B.

Weatherill, L.

Ponsonby of Shulbrede, L.

Whitaker, B.

Prosser, B.

Whitty, L.

Ramsay of Cartvale, B.

Williams of Elvel, L.

Randall of St. Budeaux, L.

Woolmer of Leeds, L.

Rea, L.

[*See col. 1442]
Resolved in the negative, and amendment disagreed to accordingly.
3.1 p.m.
Clause 4 [Inquiries initiated by Commissioner]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 7:
Page 4, line 5, leave out "and Wales"
The noble Lord saidMy Lords, I move this amendment for the purpose of replying to the observations of the noble Baroness, Lady Andrews, when we discussed the first group.
She suggested that the amendments that are grouped together in my name and the names of others were defective. If that is so I will not press them to a vote. We will no doubt—both here and in another place—look very carefully at these amendments and at the observations made by the noble Baroness.
She indicated that there was still work going on to resolve the particular issue that has developed between the powers and functions of the Welsh commissioner and the English commissioner. Helpfully, she said that the Welsh commissioner would be the first stop for children in Wales on all issues, devolved or non-devolved. I welcome that.
She also said that the work is considering where the Welsh commissioner should report. I had a feeling that she was suggesting that the English commissioner in non-devolved matters would act as a valve or barrier or conduit between the findings of the Welsh commissioner and the government departments with which he is concerned. A specific example would be the Home Office, where most of the issues are non-devolved. I hope that that is not the situation. We have urged that the Bill should be used to extend the powers
1436
of the commissioners in Wales, Scotland and Northern Ireland so that they can investigate, review and report on all matters, regardless of whether they are devolved or non-devolved.
As I have said at earlier stages of the Bill, we should not get tied up in the devolved/non-devolved division. It is nothing to do with the powers of the Welsh commissioner. The Welsh commissioner can act independently if Parliament says that he can, whatever the position between the National Assembly for Wales and Westminster.
If work is continuing along these lines, I ask that these principles be borne in mind. They are, after all, principles to which all parties in the National Assembly ascribe, including the Labour Party, which presumably has some communication with the Labour Government at Westminster. I beg to move.
Baroness AndrewsMy Lords, the noble Lord has taken slight advantage of the House at Third Reading. I stand by what I said. I will not pursue it.
Lord Thomas of GresfordMy Lords, as I have indicated, I do not seek to press this to a vote. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
Clause 5 [Other inquiries held by Commissioner]:
Baroness Howe of Idlicotemoved Amendment No. 9:
Page 4, line 22, leave out "direct" and insert "request"
The noble Baroness saidMy Lords the purpose of this amendment is to ensure that the Children's Commissioner has the necessary independence of action: to replace in the Bill the power of the Secretary of State to "direct" the commissioner to carry out a formal inquiry with a power to "request".
Your Lordships will, I am sure, welcome and pay tribute to the Government for the addition of what is now Clause 4 of the Bill. At Report stage the Government conceded very positively that the commissioner must be able to carry out formal inquiries on his or her own initiative. The requirement in Clause 4 to consult the Secretary of State is reasonable. But the Government have resisted removing the power of Ministers to "direct" the commissioner to carry out an inquiry under Clause 5, despite very strong criticism from children and young people, from children's organisations and from noble Lords in all parts of the House.
The supporters of the amendment—there is considerable support from all sides of the House as well as from many children's organisations—argue that ministerial direction in this context is a fundamental violation of independence. Unlike my amendment at Report stage, I am not proposing the deletion of the whole clause—that would probably not be proper—but merely to substitute the word "direction" with "request". My hope remains that in the fullness of time the Government will recognise that Clause 5 is unnecessary and inappropriate.

1437
We all of course hope for a close and constructive relationship between the commissioner and Ministers. Within such a relationship—and given the existence of Clause 4—it is plainly possible for the government of the day to encourage the commissioner, both informally and formally, to carry out formal inquiries which are in line with the office's general function.
So in effect the only purpose now of Clause 5 is to enable the Secretary of State to force the commissioner to undertake a formal inquiry when it is not perceived by the commissioner to be a priority in the light of the general function of the office.
The commissioner will inevitably have limited resources and it seems wrong that a Minister should be able in this way to impose on the office one or more very substantial inquiries when these may not, in the eyes of the commissioner, form an appropriate and necessary priority. Even if, as Ministers have suggested, additional funds come with such a direction—which can by no means regarded as a certainty—the demands on the commissioner's own time, on human resources, would be enormous.
The power of the Secretary of State to "direct" the commissioner in this way was highlighted as of particular concern in the letter sent by the president of the European Network of Ombudspeople for Children to the Joint Committee on Human Rights. It is plainly incompatible with the standards adopted by the UN General Assembly for independent human rights institutions and with the standards developed by ENOC. None of the ombudsman-like offices established for children across the UK and Europe can be directed in this way.
The Government have made much of the views of children being one of the foundations for the Bill and the design of the commissioner. Those of us who have met children and young people to discuss the proposal for a commissioner will know that their greatest concern is that the commissioner should be a powerful and independent champion. Clause 5—symbolically and in fact—contradicts that necessary independence. This power to direct the commissioner has been of particular concern to the many organisations that have come together to campaign for a powerful and independent commissioner which the Government also want.
I hope that the Minister will be able to accept what is proposed in the amendment. I beg to move.
Baroness WalmsleyMy Lords, I vehemently support this amendment. In the months during which we have been considering the Bill in your Lordships' House—many of whose measures are very welcome many of us have talked to hundreds of young people in various contexts. The common factor in relation to the commissioner's powers and functions that I have heard from right across the board is that young people want him or her to be powerful and independent of government. So if we are genuinely to listen to children, it is fundamental that the commissioner should be as independent of Government as the other
1438
commissioners in the UK and other parts of Europe who do their job in the interests of children so very well. It really is a vital part of the changes and improvements that we are trying to make to the powers and functions of the commissioner. I urge your Lordships to support the amendment.
Baroness DavidMy Lords, throughout all the stages of the Bill, I have very strongly supported making the commissioner entirely independent. I therefore support the amendment. It is not appropriate for Ministers to be able to direct an independent champion for children. It is as simple as that.
The Government, who deserve huge credit for bringing forward the proposal for a commissioner for England's children, accepted on Report, as the noble Baroness, Lady Howe, said, that the commissioner must be able to initiate formal inquiries, and added Clause 4 to the Bill. That shows that we have a listening Minister, and I hope that she will also be listening to this amendment.
Clause 4, reasonably enough, requires the commissioner to consult the Secretary of State before initiating an inquiry. The only possible reason for keeping Clause 5 as well as Clause 4 must be to enable the Minister to force the commissioner, against his or her will, to carry out an inquiry in circumstances in which the commissioner has decided it should not be a priority. We must all hope for a positive and collaborative relationship between the commissioner and Ministers, and there will be ample room for Ministers to propose an inquiry. But the relationship must be one of respect for the essential independence of such an office.
The ultimate decision on whether to carry out an inquiry, which would take up a huge amount of the officer's time and resources, must be the commissioner's. The Government have ample powers to establish independent inquiries in other ways. The power of direction is in direct conflict with the concept of an independent commissioner, and we should send the Bill to the other place without it.
Lord NorthbourneMy Lords, as a matter of clarification, can the Minister say whether the cost of an inquiry required by the Secretary of State would be met by the Secretary of State?
Earl HoweMy Lords, I do not think I can add to the case that has been very well made already, but it strikes me that the power of direction in this clause looks even more out of place now than it did when the Bill first reached us.
It is not just that the power of direction fetters the commissioner's independence—of course it does, and I am only one of many who thinks that that is wrong and inappropriate—it is that a power of direction really seems pretty pointless now that the commissioner is able to undertake formal inquiries on his own initiative. Are we really to imagine that the commissioner would refuse a request from the Secretary of State to instigate an

1439
inquiry? If a request came from that quarter, and there was money to go with it, I cannot envisage the commissioner ignoring it.
Apart from that, as the noble Baroness, Lady David, has said, Ministers already have all kinds of powers in other statutes to set up official inquiries if they choose to do so. Why create a power of direction in this Bill so as to force the Children's Commissioner to take up large amounts of his time doing the Government's bidding? If the matter were that pertinent to his remit, he would be doing it anyway.
I put it to the Minister that the existence of the power looks wrong. I really hope that she will think again about it.
3.15 p.m.
Lord LamingMy Lords, can the Minister give some reassurance on the point raised by the noble Lord, Lord Northbourne? I recognise the arguments that have been well advanced in the House in favour of the amendment. Nobody wishes to have the position of the commissioner compromised in any way. However, it was my hope that in establishing the post of commissioner, one of the benefits would be to avoid further inquiries of the kind and scale of the Victoria Climbié inquiry.
The reality is that when a case such as that comes along, it captures the concern—indeed, the horror—of the nation. The Secretaries of State—there was more than one, in this case—had not only to report to Parliament but to indicate to Parliament that they would take action. They established, under the authority of Parliament, an inquiry. The power of the inquiry meant that there was no fixed budget—the cost of the additional burden of having an inquiry was met 100 per cent.
I recognise the point that we can continue having inquiries of this kind. However, I hope that the Minister might be able to indicate whether the ability of the Secretary of State to give a direction in what would be exceptional circumstances would not only meet the concerns of Parliament and the public in matters of the kind to which I have referred, but, importantly, would also guarantee that a commissioner taking on an important and costly task of this kind would have that guarantee of additional funding. In other words, it would not weaken the commissioner's position to pursue other matters.
Baroness Ashton of UphollandMy Lords, in responding to Amendment No. 9, I should like to speak also to Amendment No. 10.

Amendment No. 10 would remove from Clause 5(5)(a) the words "amend the report" and replace them with the words,
make such amendments to the report as are necessary to protect the identity of the child.
The amendment would make it clear beyond any doubt that my right honourable friend the Secretary of State may amend a report solely for the purpose of protecting a child's identity, and for no other reason. This has always been the Government's intention, as I
1440
have made clear during previous debates in your Lordships' House. None the less, noble Lords expressed concern that the existing wording was not tight enough and could allow the Secretary of State to make more wide-ranging amendments. I am happy to remove any such possibility, however remote.
On Amendment No. 9, I understand everything that noble Lords have said, and the wish to ensure that the commissioner is independent. It is for that reason that we introduced Clause 4, to give the commissioner the autonomy to launch inquiries. I stress that Clause 5, as it stands, does not cut across those autonomous powers.
We hope, and I think that noble Lords would expect, that any such direction power would be used very rarely, if at all, and only as a result of a serious failure in services which the rest of the Bill is aiming to prevent. But there could be such a case. The noble Lord, Lord Laming, raised the case of Victoria Climbié, which could well have been a case where the issue was so serious that it was only appropriate for the commissioner to inquire into it. Setting up the office of Children's Commissioner is an important step. There may be very exceptional circumstances in which the decision will rest with the commissioner.
We do not envisage forcing the commissioner to do something against his or her will. Of course there would be discussion, debate and dialogue before any such direction was issued.
As the noble Lord, Lord Laming, said, when Parliament and the public express horror and concern, as they rightly did over what happened to Victoria Climbié, it is important that the Government are seen to respond on behalf of us all in a strong and measured way. The issuing of a direction is, at least in part for me, symbolic and signifies real gravity. The Secretary of State has given the amendment considerable thought. The word "direct" reflects the gravity and the weight with which the Secretary of State would have wished the inquiry to be undertaken.
I also believe that it is right that the Secretary of State should ensure that there is sufficient money, staff and expertise to carry out such an inquiry. I believe that the essential requirements for conducting such an inquiry, as the noble Lord, Lord Laming, would testify from his own experiences, are linked to the direction. Indeed, those resources would generally be beyond the commissioner's standard resources. That is why we have left it in. There is no desire to move away from independence; we want to give it serious gravitas in those exceptional circumstances and to ensure that such matters are properly resourced. With that clarification, I hope that noble Lords will feel able to withdraw the amendment.
Baroness Howe of IdlicoteMy Lords, I thank the Minister for what she has said. I am still quite concerned about a number of issues. As regards the Victoria Climbié case, I cannot imagine any children's commissioner refusing to undertake such an inquiry and for an inquiry simply to be requested would certainly suffice in that respect. I do not regard the word "direct" as being essential for that.

1441
Of course, I am glad to hear that without any doubt whatever the funds will follow any request or direction that is made. That is an important reassurance. However, I return to the vitally important issue of the independence of the English Children's Commissioner and the parity of independence with the other commissioners of the United Kingdom. In those circumstances, I would like to test the opinion of the House.
3.22 p.m.
On Question, Whether the said amendment (No. 9) shall be agreed to?
Their Lordships divided: Contents, 102; Not-Contents, 112.

Division No. 2

CONTENTS

Addington, L.

Lamont of Lerwick, L.

Alderdice, L.

Lester of Herne Hill, L.

Allenby of Megiddo, V.

Livsey of Talgarth, L.

Ampthill, L.

Lucas, L.

Avebury, L.

Lyell, L.

Barker, B.

McNally, L.

Beaumont of Whitley, L.

Maddock, B.

Biffen, L.

Mar and Kellie, E.

Bradshaw, L.

Marlesford, L.

Brooke of Sutton Mandeville, L.

Mayhew of Twysden, L.

Brougham and Vaux, L.

Methuen, L.

Byford, B.

Molyneaux of Killead, L.

Campbell of Alloway, L.

Monson, L.

Chadlington, L.

Naseby, L.

Chalker of Wallasey, B.

Noakes, B.

Chan, L.

Northbourne, L.

Colwyn, L.

Northesk, E.

Cope of Berkeley, L.

Northover, B.

Courtown, E.

Oakeshott of Seagrove Bay, L.

Craig of Radley, L.

Park of Monmouth, B.

Crickhowell, L.

Peel, E.

David, B.

Plummer of St. Marylebone, L.

Dholakia, L.

Rawlings, B.

Dundee, E.

Redesdale, L.

Dykes, L.

Rees, L.

Eden of Winton, L.

Renton, L.

Elliott of Morpeth, L.

Roberts of Llandudno, L.

Elton, L.

Rodgers of Quarry Bank, L.

Falkner of Margravine, B.

Roper, L.

Ferrers, E.

Russell-Johnston, L.

Fookes, B.

Sharp of Guildford, B.

Fowler, L.

Shaw of Northstead, L.

Garden, L.

Shrewsbury, E.

Gardner of Parkes, B.

Shutt of Greetland, L.

Geddes, L.

Skelmersdale, L.

Glentoran, L.

Slim, V.

Goodhart, L.

Smith of Clifton, L.

Greaves, L.

Steel of Aikwood, L.

Griffiths of Fforestfach, L.

Stern, B.

Hamwee, B.

Stewartby, L.

Harris of Richmond, B.

Taverne, L.

Hayhoe, L.

Tebbit, L.

Higgins, L.

Thomas of Gresford, L.

Hooson, L.

Thomas of Walliswood, B.

Howe, E.

Thomson of Monifieth, L.

Howe of Aberavon, L.

Trenchard, V.

Howe of Idlicote, B. [TellerM]

Wallace of Saltaire, L.

Hylton, L.

Walmsley, B. [Teller]

King of Bridgwater, L.

Weatherill, L.

Kingsland, L.

Williams of Crosby, B.

1442

Williamson of Horton, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Hughes of Woodside. L.

Ahmed, L.

Hunt of Kings Heath, L.

Amos, B. (Lord President of the

Irvine of Lairg, L.

Council)

Joffe, L.

Andrews, B.

Jordan, L.

Archer of Sandwell, L.

Kirkhill, L.

Ashton of Upholland. B.

Laird, L.

Bassam of Brighton, L.

Laming, L.

Berkeley, L.

Lea of Crondall, L.

Bernstein of Craigweil, L.

Lipsey, L.

Billingham, B.

Listowel, E.

Blackstone, B.

McIntosh of Haringey, L.

Bledisloe, V.

MacKenzie of Culkein, L.

Borrie, L.

Mackenzie of Framwellgate, L.

Brooke of Alverthorpe, L.

McKenzie of Luton, L.

Brookman, L.

Marsh, L.

Campbell-Savours, L.

Massey of Darwen, B.

Carter, L.

Merlyn-Rees, L.

Christopher, L.

Mitchell, L.

Clarke of Hampstead, L.

Morgan of Drefelin, B.

Clinton-Davis, L.

Morris of Aberavon, L.

Cohen of Pimlico, B.

Moser, L.

Crawley, B.

Ouseley, L.

Darcy de Knayth, B.

Parekh, L.

Davies of Coity, L.

Pitkeathley, B.

Davies of Oldham, L. [Teller]

Ponsonby of Shulbrede, L.

Dean of Thornton-le-Fylde, B.

Prosser, B.

Dixon, L.

Ramsay of Cartvale, B.

Drayson, L.

Randall of St. Budeaux, L.

Dubs, L.

Rendell of Babergh, B.

Elder, L.

Richard, L.

Evans of Parkside, L.

Rogan, L.

Evans of Temple Guiting, L.

Roll of Ipsden, L.

Farrington of Ribbleton, B.

Rosser, L.

Faulkner of Worcester, L.

Sawyer, L.

Filkin, L.

Sheldon, L.

Fitt, L.

Simon, V.

Gale, B.

Stone of Blackheath, L.

Gibson of Market Rasen, B.

Strabolgi, L.

Golding, B.

Symons of Vernham Dean, B.

Goldsmith, L.

Temple-Morris, L.

Gordon of Strathblane, L.

Tomlinson, L.

Gould of Potternewton, B.

Triesman, L.

Graham of Edmonton, L.

Truscott, L.

Greengross, B.

Tunnicliffe, L.

Grocott, L. [Teller]

Turnberg, L.

Harris of Haringey, L.

Turner of Camden, B.

Harrison, L.

Wall of New Barnet, B.

Hart of Chilton, L.

Walpole, L.

Hayman, B.

Warner, L.

Henig, B.

Watson of Invergowrie, L.

Hilton of Eggardon, B.

Whitaker, B.

Hogg of Cumbernauld, L.

Whitty, L.

Howarth of Breckland, B.

Williams of Elvel, L.

Howells of St. Davids, B.

Winston, L.

Howie of Troon, L.

Woolmer of Leeds, L.

Hoyle, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.32 p.m.
The Deputy Speaker (Viscount Allenby of Megiddo)My Lords, I have to announce a correction to the figures for the first Division. The number voting "Not content" should have read 121 and not 122.
Baroness Ashton of Uphollandmoved Amendment No. 10:
Page 4, line 34, leave out "amend the report" and insert "make such amendments to the report as are necessary to protect the identity of the child"
On Question, amendment agreed to.
[Amendments Nos. 11 and 12 not moved.]
Baroness Walmsleymoved Amendment No. 13:
After Clause 5, insert the following new clause—
"FURTHER ACTION FOLLOWING REPORT BY COMMISSIONER

Where the Children's Commissioner has made a report which contains a recommendation as to action to be taken by a relevant body, the Commissioner may by notice require that body to provide the Commissioner within three months of the date of the notice with—

such information as will enable the Children's Commissioner to determine whether the body has complied with the recommendation or will be complying with it; or

a statement of the body's reason for not complying with the recommendation.

A notice under subsection (1) shall include a statement that a failure by the body to respond within the period mentioned in that paragraph may be published in such manner as the Children's Commissioner considers appropriate.

If, on receipt of a response from the body, the Children's Commissioner considers that—

the action taken or proposed to be taken by the body to comply with the recommendation is inadequate; or

the body's reasons for not complying with the recommendation is inadequate,

the Commissioner may send to the body concerned a further notice setting out the inadequacy and requiring the body to reconsider the matter and respond within one month of the date of the notice.

A notice under subsection (3) shall include a statement that a failure by the body—

to provide what the Children's Commissioner considers to be a satisfactory response; or

to provide any response within the period mentioned in that subsection,

may be published in such manner as the Children's Commissioner considers appropriate.

The Children's Commissioner shall maintain a register containing details of—

recommendations (together with the reasons for them) contained in reports;

action taken by the Children's Commissioner under subsections (1) and (3); and

the results of any such action.

Any register maintained under subsection (5) shall be open to inspection by any person at all reasonable times at the offices of the Children's Commissioner and the Commissioner may make arrangements for copies of the register to be available for inspection in such other place or places or by such other means as he considers appropriate.

The Children's Commissioner shall publish those arrangements in such a way as to bring them to the attention of persons likely to be interested."

The noble Baroness saidMy Lords, at present there is no requirement on bodies to which the commissioner addresses recommendations to make any kind of response. This new clause enables the commissioner to require a response to his or her recommendations and
1444
to publicise any failure to respond. There are, of course, similar provisions in legislation establishing commissioners in Wales and in Northern Ireland.
Responding to the amendment on Report, the Minister said:
I appreciate that it is important to look at what happens beyond, and to ensure that things are acted upon. As drafted the amendment would apply to all adult reports, annual reports and any reports of inquiry. There is no disagreement on the principle of what to do.
I am not sure whether I agree with the bureaucratic process proposed. Although I recognise that it reflects some of the work on the Northern Ireland commissioner—I do not want to suggest that that was a bureaucratic process—it goes a little further than required".—[Official Report, 17/6/04; cols. 947–8.]
The Minister went on to suggest that Parliament and regulatory bodies could follow up the commissioner's recommendations. I am afraid that that misses the point, which is to give the commissioner added authority and ensure that recommendations are taken seriously. Constitutionally independent, unelected commissioners cannot overturn government decisions, but it is reasonable to place formal requirements on such bodies to respond and to provide a process for recording and publicising failure to respond appropriately. Similar provisions apply for the Local Government Commissioner, so why not for the Children's Commissioner?
Another example of a response obligation can be found in the Patients' Forums (Functions) Regulations 2003, which, in paragraph 8, place a duty on the NHS trusts and primary care trusts to respond to reports or recommendations made by a forum and provide for further action where there is no satisfactory response. Although I humorously commented on Report that I was hurt that the Minister should suggest that our solution was bureaucratic, I have tabled the amendment again today in the hope that, given her generally sympathetic remarks, she will be able to reassure the House that a less bureaucratic, but no less effective, solution will be proposed by the Government when the Bill goes to another place. I beg to move.
Earl HoweMy Lords, the main point that I wish emphasise in relation to the amendment was touched on by the noble Baroness, Lady Walmsley; namely, that a requirement to respond to the commissioner's recommendations would give the commissioner a great deal more standing and authority. We had the same kind of debate while discussing patients' forums during the passage on the Health and Social Care (Community Health and Standards) Bill two years ago. When a patients' forum sends a report to a hospital trust, the trust has to reply. The very existence of that duty invests the forum with a great deal more authority than it might otherwise have. As the noble Baroness, Lady Walmsley, said, its recommendations have to be taken seriously. There are further provisions in regulations in case the response received is not satisfactory. While the Minister may look at the amendment and say that it is bureaucratic, as she did

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last time, this is not actually an exercise in bureaucracy; it is an attempt to give the commissioner some added clout. That cannot be a misplaced aim.
Lord Lester of Herne HillMy Lords, I shall speak to Amendment No. 47, which stands in my name. It is bizarre that it has been grouped with another amendment with which it has nothing whatever in common. I shall therefore speak about an entirely different matter. The good news is that if the Minister is able to respond at all positively to it in her reply, I shall not move the amendment and so the House will have to listen to me only once.
I raised the issue that is covered by the amendment on Report and received strong support from across the House. Amendment No. 47 would strike a fair balance in relation to the operation of three fundamental rights: first, the right of the public to receive information and opinions published by the Children's Commissioner; secondly, the right of the individual to a good reputation protected against publications made in bad faith or with reckless disregard for the truth of the allegations; and thirdly, the individual's right of access to the courts to vindicate his reputation using defamation law where reports have been made that are unfair or irresponsible.
That balance and sense of proportion are required under the European Convention on Human Rights, as the Strasbourg court made clear in the Fayed case in which I acted as counsel. A fair balance is required also under English law. Thanks to the Human Rights Act 1998, the convention rights involved are part of our law. The questions before the House are twofold. First, what in principle is the nature and scope of the privilege to be accorded to the commissioner? Secondly, does the protection given in Schedule 1 (10) sweep too broadly?
Paragraph 10 of Schedule 1 states:
For the purposes of the law of defamation—

(a) any statement made by the Children's Commissioner in a report published under this Part has absolute privilege; and

(b) any other statement made by the Children's Commissioner or a member of his staff for the purposes of this Part has qualified privilege".

Sub-paragraph (b) is not controversial, though I doubt whether it is necessary. It is well established at common law that, on grounds of public policy, defamation law gives protection to a person, such as the commissioner or his staff, acting in good faith and without an improper motive, who makes an untrue and defamatory statement about an individual in performing his public functions. At common law, the commissioner would have the defence of qualified privilege in communicating to the public information and opinions of legitimate public interest and concern. The defence is available even though the publication contains defamatory false statements, provided that the commissioner has not acted for an improper purpose, or with reckless disregard for the truth, or unfairly.
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Paragraph (b) makes it clear that this defence of qualified privilege applies to statements by the commissioner or her staff, and that is entirely unobjectionable. But, as it stands, paragraph (a) gives absolute privilege to any statement made by the commissioner in any report under Part 1. According to well established doctrine, absolute privilege applies and should apply only to occasions and reports of high public importance. Where absolute privilege applies, it operates as a complete immunity from libel proceedings, even if the commissioner was actuated by express malice. It completely denies the victim of a defamatory statement the right to vindicate his or her reputation through the legal process.
Because of the high public interest in the due administration of justice, absolute privilege applies, for example, to protect judges, advocates, jury members, witnesses, parties to legal proceedings and reports of court proceedings. It also applies to parliamentary reports and papers, to affairs of state and to some limited statutory instances, where public bodies or officers, such as the Civil Aviation Authority or the Financial Services Authority, perform quasi-judicial or law enforcement functions and are given absolute privilege. The Parliamentary Commissioner for Administration has absolute privilege for her reports to Parliament and other matters relating to her investigations, as part of the protection for parliamentary proceedings and reports. My Amendment No. 47 reflects that position by applying absolute privilege to the commissioner's annual reports to Parliament under Clause 3.
However, paragraph (b) as it stands sweeps much more broadly. It confers an absolute immunity from defamation proceedings for any report made by the commissioner under any provision in Part 1. That includes a report under Clause 2(2)(d), a report under Clause 4(5)(a) or a report under Clause 5(3).
I submit that there is no objective and reasonable justification for such a far-reaching immunity. No such protection is given to the Equal Opportunities Commission, the Commission for Racial Equality or the Disability Rights Commission, even though they have law enforcement powers that are not vested in the Children's Commissioner. Why should the commissioner be in this absolutely privileged position to harm personal reputations for improper reasons or recklessly with no possibility of legal redress for the victim? The commissioner's reports made under these provisions do not concern parliamentary proceedings, affairs of state, judicial or quasi-judicial functions or law enforcement functions. What we have here are reports on matters relating to the rights, views and interests of children (that is, subsection (2)(d)); or reports of the commissioner's recommendations following an inquiry into a case raising issues of public policy relevant to other children (that is, Clause 4(5)); or a report of an inquiry into an individual case (that is, Clause 5(3)).
By conferring an absolute immunity against defamation proceedings for any of those reports, Parliament would be removing an important incentive

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for the commissioner to seek to ensure that her or his reports under Part 1 are fair and accurate and not made recklessly or irresponsibly.
The only reason for including such a broad and absolute immunity is not one of principle; it involves matching the immunities conferred upon the Scottish, Northern Irish and Welsh Commissioners. Section 25 of the Commissioner for Children and Young People (Northern Ireland) Order 2003 extends absolute privilege to,
publication by the Commissioner or any matter which the Commissioner is required or authorised to publish,
under the order. Section 76(7) of the Care Standards Act 2000 provides that the,
publication of any matter by the Commissioner [for Wales] in a report is absolutely privileged.
Section 15(1) of the Commissioner for Children and Young People (Scotland) Act 2003 confers absolute privilege not only on the commissioner but also on any of the commissioner's staff: first, in conducting an investigation under the Act; secondly, in communicating with any person for the purposes of such an investigation; or, thirdly, in a report published under the Scottish Act.
When those immunities were conferred for the three devolved commissioners, no one apparently considered whether they were compatible with the European convention or the Human Rights Act. There was an attempt to check but the main issue was not thought about; that appears to be the position. In my view, it is very strongly arguable that those immunities are not necessary and proportionate in the context of Scotland, Wales or Northern Ireland, and would not pass muster in the event of a legal challenge under the Human Rights Act or the convention.
That fact that unnecessary and disproportionate absolute immunities have been given to the Scottish, Welsh and Northern Irish commissioners does not make the legislation compatible, or justify our following this model in the present Bill. I look forward to the Minister's explanation as to the justification for such a sweepingly broad absolute immunity.
The Joint Committee on Human Rights, of which I am a member, is yet to report on the Bill. It will do so when it leaves this House, and its report on this issue—I cannot say what the report will contain—may be influential one way or the other. As I said, speaking entirely for myself, I would be surprised if the absolute immunities would pass muster if challenged in the courts. Qualified privilege is surely sufficient, except for parliamentary proceedings and, as I have said, it will provide an important incentive for fair and responsible reporting by the commissioner. In other words, there is a lack of proportionality in this regard and the absolute immunity is not carefully tailored to the commissioners' wholly legitimate needs in performing his or her important public functions.
3.45 p.m.
Baroness DavidMy Lords, I return to Amendment No. 13, which I strongly support, as I have done at previous stages. It was good to hear the Minister say
1448
on Report that she accepted the principle. I hope that we will hear that acceptance of the principle turns into acceptance of the provision.
Recommendations from the commissioners in Wales and Northern Ireland must be taken seriously because of similar provisions in the legislation establishing their posts. Why not have a similar arrangement in England? The Minister also suggested that Parliament and government departments would need to ensure that commissioners' recommendations were taken seriously. But that is beside the point and assumes that they are on the same side as the commissioner, which inevitably they sometimes may not be. These are entirely appropriate powers for an independent champion for children and I hope that the Government will agree to them.
Lord EltonMy Lords, when the Minister replies to the noble Lord, Lord Lester, will she please bear in mind the great vulnerability of workers in this field and the existing law? We must ensure that they have some remedy when there is a miscarriage of judgment by the reporting person.
Lord HyltonMy Lords, I rise to support Amendment No. 13, which appears to give some teeth to reports by the Children's Commissioner and will, I hope, ensure that his recommendations do not remain so much paper that is simply disregarded by all concerned. On those grounds, I hope that the amendment commends itself to the Government.
Lord LamingMy Lords, like the noble Lord, Lord Lester, I have difficulties with the fact that Amendments Nos. 13 and 47 have been grouped together. They do not bear much relation to each other. I completely support Amendment No. 47, which was proposed very ably indeed by the noble Lord, Lord Lester. As the House knows, at an earlier stage I raised doubts about giving absolute privilege to the commissioner. All that the noble Lord said simply reinforces my belief that giving absolute privilege should be done only in exceptional circumstances. The case has not been made at all for the commissioner for England.
Lord NorthbourneMy Lords, I want briefly to support the noble Lord, Lord Lester of Herne Hill. I listened with interest and alarm as he outlined the scenario. We already have sufficient problems with people—including parents—working with children who feel under threat of being sued for one reason or another. The commissioner's ability to make totally irresponsible statements—he may not do so, but he might—is yet another threat to those people who mean well and who want to work with children but who are becoming increasingly frightened of doing so.
Baroness Howarth of BrecklandMy Lords, I support the amendment moved by the noble Baroness, Lady Walmsley. It is crucial that the commissioner receives responses to the recommendations that he or she makes.

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When we have a Minister like the noble Baroness, Lady Ashton, where reasonableness seems to prevail, we forget that situations can become unreasonable. The statute or regulation should be clear about setting expectations for all situations.
Baroness Ashton of UphollandMy Lords, I understand that the reason these two amendments are yoked together, as I think the noble Lord, Lord Lester, put it, is that they address the broad issue—we can believe this or not—of the commissioner's authority and freedom to act in order to help achieve change. I hope that that has enlightened noble Lords.
Amendment No. 13 has found a great deal of support in the House. As the noble Baroness, Lady Walmsley, indicated, it is a replica of the amendment that was tabled on Report. I stand by what I said then: in principle, I have a great deal of sympathy with what the noble Baroness sought to do, but I feel the measure constituted an over-bureaucratic process. I am sorry to see it back for that reason alone.
I shall not reiterate all the points that I made at previous stages about the importance of the commissioner being able to use other means, not least publicity and embarrassment to ensure that people respond. However, I understand the issues that have been raised. My right honourable friend the Minister of State for Children, Young People and Families has asked me to inform your Lordships that she is considering this issue. She will consider whether we need to make further provision regarding this matter and is minded to consider introducing an amendment in another place to take it forward. I shall endeavour to ensure that all noble Lords who have taken part in this debate are kept in touch with her deliberations. It will be a different amendment as she does not want to go so far as the noble Baroness in terms of bureaucracy, although I know that that is not what the noble Baroness sought. I shall keep noble Lords informed on that matter. I do not have final confirmation of what the measure might look like, but it is her intention to introduce such a provision in another place. I hope that it will address noble Lords' concerns and that they will feel able to withdraw the amendment.
Amendment No. 47 was ably spoken to by the noble Lord, Lord Lester. It would take away the protection of absolute privilege that we brought in. Noble Lords will remember that I introduced a government amendment in response to concerns raised by the noble Earl, Lord Howe, and the noble Baroness, Lady Byford, who felt that the commissioner should be free to carry out his duties without the fear of having to spend time and resources defending himself in lawsuits. As noble Lords have indicated, irrespective of whether they supported the measure, we need to ensure balance regarding the way in which the different commissioners operate. Noble Lords have made it clear that they want to see that balance as regards other aspects of the Bill. However, the noble Lords, Lord Lester and Lord Laming, and the noble Lord, Lord Campbell of Alloway, who is not present, expressed reservations about that.
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We all want the commissioner to be independent and to act fairly in an inquiry. I believe that we are also searching for ways to ensure that the commissioner is not deterred from taking action due to fear of a defamation case. That is why we considered it important to grant absolute privilege to statements made by the commissioner in inquiry reports. We considered that that met a legitimate aim.
The noble Lord, Lord Lester, cited the Fayed case in the European Court of Human Rights. I have a copy of the Fayed judgment. I wish to quote a tiny part of it:
The defence of privilege of immunity in defamation cases rests upon the idea that conduct which would otherwise be actionable escapes liability because the defendant is acting in furtherance of some interest of social importance which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation. If the interest is one of paramount importance, considerations of policy may require that the defendant's immunity for false statements be absolute without regard to his purpose or motive for the reasonableness of his conduct".
Having said that, we are concerned—
Lord Lester of Herne HillMy Lords, I am very grateful. I think I am also right in saying that they went on to say that that was a case where the Secretary of State had an absolute privilege when he damnified Mr Al Fayed—indeed, he was disqualified as a director. But did not the court also say that any restriction on the right of access to courts in a context of defamation had to be proportionate, had to meet the test of necessity and that it should not sweep too broadly?
Baroness Ashton of UphollandMy Lords, indeed. The noble Lord will know that far better than I. It is always dangerous to quote a case in which any noble Lord is involved. My point in quoting that extract was not to detract from what the court said later but to extend our consideration of how best we ensure that the commissioner is able to carry out his functions. We are concerned by the anxiety expressed on the matter by a number of noble Lords, not least the noble Lord, Lord Lester. That convinces me that we need to reconsider the matter carefully.
Some noble Lords will be aware that the Department for Constitutional Affairs is consulting on proposals for conducting effective inquiries, including the level of protection needed by inquiry panels to enable them to act freely for the purposes of the inquiry. I understand that that consultation will close at the end of July. I want to consider the matter in relation to the outcome of that consultation. Yesterday, members of my department's legal team spoke to members of the legal team of the Department for Constitutional Affairs. They discussed what we might do following the consultation. We want to consider the outcome of the consultation, to consider further not least the Fayed case but also the other issues that have been raised and to make any necessary amendments when the Bill is debated in another place. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness WalmsleyMy Lords, I thank noble Lords who supported the amendment. I also thank the Minister for her response.
I found one of her comments quite extraordinary. She suggested that in order to ensure that something happens as the result of recommendations that he or she makes, the commissioner might use publicity and embarrassment. In other areas of child protection, we do not believe that publicity and embarrassment are sufficient deterrents. We rely on the full weight of statute in those areas. Therefore, I particularly welcomed the Minister's reassurance that her colleague in another place will bring forward a measure to ensure that people have to respond appropriately to the commissioner's recommendations.
Baroness Ashton of UphollandMy Lords, I should not want the noble Baroness to think for one moment that I was trying to suggest that publicity and embarrassment are sufficient deterrents in the area of child protection. I referred to those factors in terms of making agencies respond. The noble Baroness is absolutely right on that point.
Baroness WalmsleyMy Lords, I am very grateful for those comments. It can be a part of getting people to respond, but it is certainly not enough. That is why I await with great interest the measure that the Minister in another place will bring forward. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Relationship with other Commissioners]:
Baroness Ashton of Uphollandmoved Amendment No. 14:
Page 5, line 9, leave out subsections (1) and (2).
On Question, amendment agreed to.
The Deputy SpeakerMy Lords, before I call Amendment No. 15, I have to inform the House that if this amendment were to be agreed to, I would not be able to call Amendments Nos. 16 and 17.
[Amendment No. 15 not moved.]
Baroness Ashton of Uphollandmoved Amendment No. 16:
Page 5, line 30, leave out from second "to" to end of line 31 and insert—

" any matter falling within the remit of the Children's Commissioner for Wales under section 72B, 73 or 74 of the Care Standards Act 2000 (c. 14) in relation to children to whom Part 5 of that Act applies;

any matter relating to children in Scotland which is not a reserved matter (within the meaning of the Scotland Act 1998 (c. 46)); or

any matter relating to children in Northern Ireland which is a transferred or reserved matter (within the meaning of the Northern Ireland Act 1998 (c. 47))."

On Question, amendment agreed to.
Baroness Ashton of Uphollandmoved Amendment No. 17:
Page 5, line 34, leave out "(1)(a) to (c)" and insert "(3)(a) to (c)"
On Question, amendment agreed to.
Clause 7 [Co-operation to improve well-being]:
Lord Northbournemoved Amendment No. 18:
Page 6, line 6, at end insert—
() the provision of a secure and supportive home environment;"
The noble Lord saidMy Lords, these amendments relate to the list of five objectives that originally appeared in both Clause 2 and Clause 7 but now remain only in Clause 7(2). Because of the importance of the issues, I have to take a few minutes of the House's time to set out the background.
In Committee, there was an extensive debate on amendments tabled by the noble Lord, Lord Lucas, and myself, which would have included—alas, the noble Lord, Lord Lucas, is no longer in his place—the family or family life as an additional objective in this list.
here was very strong support from both sides of the House for there being some reference to the importance of family life at this point in the Bill, as shown at cols. 1089–96 of the Official Report for 4 May. The noble Baroness rejected all that pressure on the grounds that the five objectives were cast in stone because they were derived from the wishes of children, as expressed during the consultations that the Government held before publicising the Bill.
4 p.m.
I have carefully studied the reports of those consultations, and of the research project by the Children and Young People's Unit. In those consultations, children were not asked directly whether the quality of their family life was important to them or had a high priority in their lives. However, out of the nine questions that they were asked, two—questions 4 and 7—related to families. The children's replies show clearly what a high priority they place on families and family life and support. The research project carried out by the CYPU also strongly and repeatedly confirmed the high priority placed by child and adult consultees on the value of family life. The question is why those aspects of children's replies were ignored by the Government when they drafted the five objectives that we find in Clause 7(2).
In a recent letter to the noble Earl, Lord Howe, which was copied to me, the noble Baroness explained that after careful consideration the Government had decided to write the Bill in terms of objectives rather than processes. I entirely support that decision. However, it emphasises the importance of getting the objectives right. That is particularly the case because, no fewer than twice in her reply in Committee, she described the five objectives as the definition of well-being. We all know that, when a list is included in legislation, the courts assume that things left out are excluded. The list is therefore very important. It defines, for the purposes of the law, the well-being of

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children. It would be serious if stability, security and home life were excluded from the definition of children's well-being. It would be even more serious if emotional well-being were excluded.
In the noble Baroness's letter to the noble Earl, she tells us that the Government regard family life as part of the process, rather than as an objective or good in itself. The reality is that family life is both a process and an objective. The quality of family life is an objective in itself, because it affects not only the child's future chances in life, but also its happiness and well-being while it is a child.
I am guessing, but I believe that the Government are so reluctant to include a reference to family life among the objectives of the Bill for a political reason. They are rightly reluctant to seem to suggest interference in private family life. I respect that concern, although I believe that supporting family life need not be intrusive, provided that it is based on listening to what families, children and parents want rather than imposing solutions on them. I respect the Government's concerns, and have therefore crafted the two amendments. They go some way towards addressing two of the most important aspects of a child's well-being that family life normally delivers. Neither mentions "family" or "family life". I hope that the noble Baroness will be grateful for that change in the direction of my amendment.
Amendment No. 18 would introduce the additional objective of,
the provision of a secure and supportive home environment.
That is a key good for all children, especially young children, so should be one of the objectives that defines the welfare of children in the Bill. Amendment No. 19 would add "emotional" well-being to the list of well-beings in Clause 7(2)(e). It may be the most important well-being of all for children. It affects their current life as children, their ability to relate to others, and their prospects for the future. To say that it should be excluded because it is simply part of the process is as absurd as saying that health should be excluded because it is also part of the process, which it is. Emotional well-being is a good in itself for children, and should be included in the definition of targets for children's well-being in the Bill.
I have had a great deal of support from both sides of the House for the amendment, and I regard it as particularly important. I beg to move.
Baroness Howe of IdlicoteMy Lords, I support the amendment. I have already mentioned the report, Aim High: Stay Real, which clearly underlines the importance that children give to a secure and happy home environment. The amendment is a way of emphasising that in the Bill. I differ slightly from my noble friend in not thinking that the motives of the noble Baroness are political. If they are, it is with only a small "p". There is recognition of the importance of family.
Lord NorthbourneMy Lords, I accept the small "p".
Baroness Howe of IdlicoteMy Lords, it is important to get the two matters into the list in the Bill of what a
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child would aim to have for itself. I emphasise emotional as well as social and economic well-being. It would give much greater weight to everything that needs to be rounded for children to come through into adulthood successfully.
The one real area that, sadly, illustrates the importance of what we are trying to achieve here is that which concerns the most deprived children and also looked-after children—an area that I am sure we shall come to in a later amendment. Again and again, there is evidence of a disturbed background and a lack of emotional well-being. As a result of that, again and again other aspects of the "wished-for" inclusion that the Government and all of us in this House would like to see fail. Therefore, I support my noble friend's amendment.
Lord ChanMy Lords, I also support my noble friend's amendment. I remind noble Lords that the Government have invested a great deal of resources in, for example, Sure Start. That particularly important investment provides a secure and supportive home environment. Therefore, it seems a pity not to mention it clearly here. As we begin to see the benefits of the Sure Start programme, we see that it also strengthens the emotional well-being of children. Therefore, I should have thought that it would be an advantage if all that were spelt out on the face of the Bill.
Lord EltonMy Lords, having followed the debate on this matter only at a distance through circumstances beyond my control, I speak with great diffidence and briefly. However, the omission of the mention of "family" from a Bill of this kind and from a part of the Bill of such critical importance is little short of astonishing. Therefore, I endorse everything that the noble Lord, Lord Northbourne, said about the desirability of its inclusion.
It is not possible to argue that what he is advocating is a process and that it should be excluded on that basis because education, which is included, is also—I believe unarguably—a process. Therefore, that argument fails.
The purpose of putting the "family", or the "supportive home environment", as it is now being expressed, on the face of the Bill is not merely to emphasise its overall importance; surely it is also to prevent the pursuit of other objectives at the expense of that objective. If that objective is excluded, other objectives will take precedence over it and it will be possible to pursue physical health or recreation in a way that militates against a supportive and secure home environment.
I would say much the same about "emotional well-being". If we are trying to describe what we wish to achieve for a child, and that is how the Minister recently described these paragraphs, the description must surely include the most secure home life possible and the most secure emotional well-being possible. Therefore, it is difficult to see on what grounds the noble Baroness will

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try to resist the amendments. I shall listen with great interest and, if she does so, I shall be disposed to follow the noble Lord, Lord Northbourne, through the Lobby.
Baroness Sharp of GuildfordMy Lords, from these Benches I give our support to the two amendments tabled by the noble Lord, Lord Northbourne. In earlier discussions on the same issue, the Minister made it clear that in the list in Clause 7(2) the Government were trying to distil the results of the consultations that took place with children about what they felt was good about their well-being. Certainly, one issue that came out of those consultations was a sense of security. It seems that an attempt has been made to capture that within the context of this subsection by the use of the words,
protection from harm and neglect,
and,
social and economic well-being.
But neither really captures the sense of security within the family or the sense of a secure environment. I believe that that is the great advantage of including within the list the wording proposed by the noble Lord, Lord Northbourne.
For exactly the same reason, I think that adding the word "emotional" to "social and economic well-being" so that it reads,
emotional, social and economic well-being,
has a great deal to be said for it. I think that it reflects what the children wanted, and I urge the Minister to be persuaded by these arguments.
Lord LucasMy Lords, it is unarguable that "home environment" and "emotional well-being" are vitally important for the well-being of children and, indeed, they come first in the list that a child will put if asked these questions in a straightforward way. Surely the difficulty arises from the question: are they things that the authorities should be promoting or things in which they should be involving themselves? I think that that was answered by the noble Lord, Lord Chan. What else is Sure Start?
I do not know how the noble Baroness spends her Wednesday evenings, but I would thoroughly recommend that she watches "Supernanny", which is a most extraordinary programme on Channel 4. It starts off with total chaos in a household, and with a little intervention, all is happiness and peace, which is just technique. It is astonishing to see the transformation. That is just the kind of parenting education which the noble Lord, Lord Northbourne, has been advocating for many years, and which should be provided by local authorities.
We live in such isolated little families now that we have no access to those sort of skills. We do not even know that they exist. We think that what we are doing is the best that can be done. The provision of that sort of resource by authorities should be central to what they do. That is, to my mind, what the noble Lord's amendments would achieve.
4.15 p.m.
Lord DearingMy Lords, I had not intended to take part in the debates on the Bill and apologise for intervening at this late stage. However, the emotional wellbeing of a child is so central that I felt compelled to raise my voice in support of the noble Lord, Lord Northbourne. The ability of a child to love and to accept love, to have compassion and empathy and to cope with anger and fear is absolutely central to the development of that human being, especially for looked-after children who face so many handicaps. I think that it is right that we should press this issue. I have not referred to home life, but it is in the framework of the home that those emotions are nourished and developed.
Earl HoweMy Lords, the arguments in favour of the amendments have been extremely well put and I shall be brief, but I want to support them very warmly. It seems to me that the noble Lord, Lord Northbourne, in his Amendment No. 19, has encapsulated a very important concept that is not encapsulated elsewhere in the subsection.
Emotional well-being is surely quite distinct from mental health and social well-being. It is different from protection from harm and neglect, which is a negative, not a positive, concept. If there has to be a choice between the noble Lord's two amendments, Amendments Nos. 18 and 19, I prefer Amendment No. 19, first, because it is neater and, secondly, because it is an outcome which does not in any way presuppose any kind of official intrusion into the home. That is not, I am sure, what the noble Lord wants to see but it could be thought to be a consequence of making the provision of a secure and supportive home environment a specific target for local authorities and their partners. With that mild caveat, I hope that the Minister will be receptive to these amendments.
Lord LamingMy Lords, the noble Lord, Lord Northbourne, deserves the congratulations of the House on the way in which he has concentrated our minds on the importance of family in the well-being of children. The difficulty that I suspect many of us have—this certainly applies to me—is that when I read a draft Bill I read into it things which I assume everyone else reads into it, and obviously that may not be right. So, when I think of something which improves the well-being of children, I automatically think of the family, because the family is the basis from which the well-being of children springs. Therefore, I assume things that perhaps, given the experience of the noble Lord, Lord Northbourne, I would have been better not to have assumed.
It seems to me that the House is in support of the thrust of the amendments. I am sure that we all agree, first, on the importance of the family and, secondly, on the importance of wellbeing of children.
Baroness Ashton of UphollandMy Lords, I am grateful to all noble Lords who have spoken, particularly to the noble Lord, Lord Northbourne, for introducing these important debates. I shall begin by

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saying a few words about Amendment No. 18. Noble Lords will not be surprised that I start from a slightly different viewpoint. In seeking to do everything we have done around the Bill we have tried to involve children in the most appropriate way. Clearly, for some noble Lords that has not been enough. However, we really do feel that we have tried to base a lot of our work on what we believe is the right approach, having talked to children and those involved with children, in different ways.
I understand that the noble Lord wants to see a new outcome; that is, the provision of a secure and supportive home environment. I reiterate what was said by the noble Baroness, Lady Howarth, really on my behalf, that there is no political motivation in this, not even with a small "p". It matters hugely that children have the kind of secure environment, preferably with their family but if not, provided by those who can, that enables them to be nurtured and to grow. Everyone involved in the Government, and even in your Lordships' House, would support that. The question is, where do you put the provision? As I said to the noble Lord, Lord Elton, when he re-examines this clause he will see that we have inserted the issue of family life and parents and carers precisely because the noble Lord, Lord Northbourne, and others appropriately took me to task at an earlier stage for its omission. The provision has now been included. We have, I hope, as the noble Lord indicated, moved some way in that direction.
I cannot accept Amendment No. 18 because of the way in which it raises various issues. There are real difficulties when one tries to focus services on the territory of family life, in a clause that is actually about the activities that we expect statutory agencies to undertake. We want the children's services authority and its partners to ensure they are addressing all aspects of children's well-being. That is partly why the five outcomes are there to help them do it; not on their own, but as a really big chunk of what we expect them to do.
Our previous amendment ensures that the bodies must take proper account of the importance of parents and carers. I am not sure that the noble Lord would want us to go further and suggest that the co-operation arrangements and activities of services should encroach on and—dare I say it—possibly interfere with what happens in a child's life. The way the amendment is phrased runs the risk of being misinterpreted in the sense of how we expect our services to offer such provision. For that reason—and that reason alone; it is not a political reason regarding family life—I am resisting the amendment.
When thinking about a secure family environment, it is important to ensure that provision is made in the right place. This amendment would not put it in the right place. That does not mean that we do not recognise that a stable family life is one of the underpinning features of how children develop and grow and are nurtured. That is why, when we think about looked-after children, the word "stability" has become such an important part of the PSA target. My
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right honourable friend the Secretary of State feels very passionately about stability, which for some children is so badly lacking.
We have no will to move away from that. However, I fear that, by making this amendment in the proposed place, we would run the risk of asking our services to look at family life more carefully, but in a way that the noble Lord does not want. I have, however, listened very carefully. I shall therefore ignore my speaking note and accept Amendment No. 19.
Lord NorthbourneMy Lords, I am very grateful indeed to the noble Baroness for her reply. I accept the points that she makes on Amendment No. 18. The difficulty is always to try to craft support and Acts for families in such a way that they do not encroach or interfere, but rather are related to listening. responding and empowering. However, in view of what the noble Baroness has said about Amendment No. 19, I am very happy to seek to withdraw Amendment No. 18. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Northbournemoved Amendment No. 19:
Page 6, line 10, at beginning insert "emotional,"
On Question, amendment agreed to.
Lord Northbournemoved Amendment No. 20:
Page 6, line 12, after "England" insert "and its relevant partners"
The noble Lord saidMy Lords, I shall be very brief. Amendments Nos. 20, 22 and 32 would respectively extend the application of Clause 7(3), which is the Government's amendment about paying attention to the family and to parents, to three other groups: to the relevant partners of a children's services authority as well as to the authority itself; to the bodies which will be responsible for making arrangements for safeguarding and promoting the welfare of children under Clause 8; and to any person or body carrying out an inspection or making a report under Clause 16 of the Bill. This is another group of amendments which relates to the concept that what is sauce for the goose should be sauce for the gander. If Clause 7(3) is desirable in relation to a children's services authority, why is it not also important that it should apply with equal force to those other bodies concerned with the well being of children in the Bill? I beg to move.
Baroness Howe of IdlicoteMy Lords, in the briefest possible way, I support the amendments. I do not think that we need say any more than that, because we have had these arguments out so many times. They are all important, and if they apply to one group or authority with those responsibilities, they should apply across the board. I hope that we do not need a debate and we can accept what is proposed.
Earl HoweMy Lords, on Amendment No. 22, I sympathise totally with the intentions of the noble Lord, Lord Northbourne. However, it is important

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that where a child is at risk of harm from his own parents or carers, nothing in the wording of the Bill should get in the way of the local authority being able to take the action that it needs to take to remove a child from harm's way.
I do not know whether the amendment poses that sort of a risk, but expressed as it is, I am a little concerned that it might. I am prepared to stand corrected. I want the noble Lord to know how much I support the general thrust of Amendment No. 22, particularly as it relates to the promotion, as opposed to the safeguarding, of children's welfare.
Baroness Ashton of UphollandMy Lords, on Amendment No. 20, the noble Lord sought clarification that what was sauce for the goose was sauce for the gander. I reassure him that that is the case. The duty to have regard to the importance of parents is placed on the children's services authority because that is the body required to make arrangements for co-operation. The relevant partners are under a duty to co-operate in the making of those arrangements. Therefore, they are covered by what is already in the Bill. I hope that reassures the noble Lord.
The noble Earl, Lord Howe, has indicated the problem that we have with Amendment No. 22. It would make the duty to have regard to the importance of parents equal to, but completely separate from, the duty they already have to have regard to the need to safeguard and promote the welfare of children in exercising the normal functions. Amendment No. 22 would weaken rather than strengthen the duty, and it dilutes the focus of Clause 8. I am sure that is not the noble Lord's intention. It really matters that we have a single, stand alone duty in relation to safeguarding. It emphasises to the agencies involved the crucial importance of safeguarding and promoting the welfare of children. That is why I do not wish to accept the amendment, because it is too important to risk diluting.
Amendment No. 32 is unnecessary. The job of the inspectorate is to inspect the provision of services. We do not want—and we do not think that the noble Lord wants—the inspectorate to be inspecting the contribution of parents to their children's well being by intruding on their privacy and their domestic premises. We cannot work out how to fulfil such a duty other than by inspection activity, and I am sure that the noble Lord is not seeking that. The new arrangements for the inspection of children's services will ensure that the views of parents and carers on services will be taken into account. It is covered in the Every Child Matters: Inspecting Services for Children and Young People discussion paper. One of the principles of the framework for inspections will be that inspections should seek the views of children and young people, and that their perspective on services will be taken as part of the evidence of the availability, quality and impact of provision.
The discussion paper explicitly states that the consultation with children, young people, their parents and carers will be a key part of the process of
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joint area reviews. On the basis that it is unnecessary, and it would lead to something that the noble Lord does not want, I hope that he will withdraw his amendment.
Lord NorthbourneMy Lords, all three of the answers were satisfactory and convincing. I am most grateful to the noble Baroness. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.30 p.m.
Clause 8 [Arrangements to safeguard and promote welfare]:
Earl Howemoved Amendment No 21:
Page 7, line 20, at end insert—
( ) a regional office of the National Asylum Support Service;
( ) the centre manager of an immigration removal centre;
( ) the Chief Immigration Officer at a port of entry;"
The noble Earl saidMy Lords, the arguments for this amendment have been well rehearsed at earlier stages and I shall not weary the House by repeating them at length. We have what appears to many, including me, a giant lacuna in the Bill. In the Green Paper Every Child Matters refugee children are specifically mentioned as being children in the greatest need, yet the agencies which are charged with looking after them are excluded from the duty in Clause 8 to safeguard and promote children's welfare. I have read what the Minister said about the amendment on Report. I still find the omission incomprehensible. Why on earth should refugee children be denied the same rights and protection as other children in the UK? The Minister argued that,
a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control.—[Official Report, 17/6/04; col. 996.]
She went on to argue that in undertaking its primary functions it would be unavoidable that the IND would do things that would be judged as inconsistent with a duty to safeguard and promote welfare.
We need to unpack this a bit. The first point is that Clause 8 is not an absolute duty, but simply requires agencies to make arrangements to have regard to the need to safeguard children and promote their welfare in the discharge of their functions.
As the Minister said on Report,
We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions.—[Official Report, 17/6/04; col. 995.]
Nobody would argue that the primary function of the Immigration Service is not to ensure effective immigration control, just as nobody would dispute that the primary function of the police is to ensure public order and prevent crime. Yet the chief officer of police is included in the new duty in Clause 8(1)(g).

1461
We might do well to look at the Explanatory Notes to the Bill which state:
This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of exercising their normal functions.
The Government have failed to explain how this duty would interfere with the normal functions of the agencies listed in the amendment.
It is important to look at the wording of the amendment because it does not ask that the whole of the IND service be included in the duty, only the relevant bodies and personnel who come into contact directly with children at key points in the system.
Perhaps I may say a few words about detention. On Report the Minister restated the concerns of the Immigration Service that the amendment,
would provide another basis for exploiting the appellate and judicial review systems by arguing that the detention of asylum-seeking families with children is not compatible with safeguarding children or promoting their welfare.—[Official Report, 20/5/04: col. 977.]
It is a little hard to reconcile the Minister's position with the recent assertion by her noble friend Lord Bassam in debates on the Asylum and Immigration (Treatment of Claimants Etc.) Bill. When resisting an amendment to ensure that assessments of children's needs while in detention are undertaken the noble Lord argued:
I hope that noble Lords are reassured that the current provision for the care and welfare of children detained in immigration removal centres is of a very high standard. We will never be complacent about the issue, and we will ensure that we are aware of the need to maintain—and, where necessary, improve—the standard of care for children.—[Official Report, 18/5/04; col. 748]
Despite the noble Lord's assertions, we still have reports by Her Majesty's Inspectorate of Prisons on inspections of five immigration removal centres in 2002. Those reports have been mentioned at earlier stages of the Bill. They highlight the inappropriateness of detaining children and concerns about their treatment.
Similar concerns about the treatment of children in Prison Service establishments has led to their inclusion under the new duty in Clause 8, so we have to ask why a different approach is being taken here. We need to remember that detention is without limit of time. In fact it can be for prolonged periods. Recent figures given by the noble Lord, Lord Bassam, in debates indicate that between March and April 2004, 323 people were taken into detention, 63 of whom were held for more than a week. The Refugee Children's Consortium considers the measures for ministerial authorisation referenced by the Minister on Report to be woefully inadequate. One particular case illustrates that: the Konan case. Miss Konan, who fled the Ivory Coast, was detained for more than six months with her young child. The period of detention was subsequently ruled to be unlawful for all but the initial two-week period, despite repeated authorisation by the Minister.
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If the Minister considers it appropriate to detain children and that the care for children in detention is of a high quality, will she explain why those directly responsible for the care of children should not fall under the duty in the Bill? I beg to move.
The Lord Bishop of WorcesterMy Lords, I have to say that I find it quite difficult to speak in a suitably measured way about what I see as quite unwarranted resistance to the terms of the noble Earl's amendment. I am assuming, of course, that the Minister will continue to resist the proposal, as has been the case at earlier stages. I hope that she will not and thus prove me wrong. The reason I find it difficult to express myself in a measured way is that a clause and debate of this kind puts to the test the ultimate purpose of the Bill.
It is my feeling that putting children first cannot apply only when it is naturally convenient to do so and does not interfere with obligations and duties. The test of the Government putting children first and of the nation putting children first arises precisely at the point at which it is rather inconvenient and difficult. "Inconvenient and difficult" means when there is the possibility—I do not hear the noble Earl denying it—that it could get in the way of our current arrangements for dealing with the children of asylum seekers.
By any stretch of the imagination, the children of asylum seekers are the most vulnerable children among children because they are in a position where their very existence as people entitled to be here is in question. It is precisely because of that high level of vulnerability that I find it really does put the will of this House and of the nation to the test when we are invited to believe that we have a duty that must be placed above our care for those children. I urge the Government to understand that, for many of us, an issue of this kind poses ultimate questions about the seriousness of our intentions.
This is an excellent, really important and courageous Bill. However, it places upon us the requirement that we take its purpose seriously precisely at the point when it is difficult to do so. I urge the Minister to allow the amendment to proceed. If she will not, I seriously urge noble Lords to register their wish that it should.
Baroness WalmsleyMy Lords, the arguments in favour of the amendment have been well put and I will not repeat them all. However, in supporting the amendment I would like to repeat two short points. First, this is a modest measure. The duty to safeguard and promote the welfare of children is a modest one. As it says in the Explanatory Notes:
This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of exercising their normal functions.

1463
Is it too much to ask that when agencies are involved with children they are conscious of the need to safeguard them? It is a very modest measure indeed.
Secondly, the Minister said on Report that
a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control.—[Official Report, 17/6/04; col. 996.]
If that is the case, there is something wrong with the way in which refugee children are being treated, and it must be addressed.
Lord HyltonMy Lords, the noble Earl, Lord Howe, explained the amendment so well and went into all the necessary detail so that it is difficult to add anything of substance to what he said. However, I supported him on a previous occasion and I support him again today. If he is minded to divide the House I shall certainly support him in the Lobby.
Baroness Howe of IdlicoteMy Lords, I, too, would like to support this important amendment. It is clear that this particular group of children need the protection and understanding of all the agencies. They are undergoing a particularly stressful process. Their well-being, in that now well-used phrase, is almost certain to be under extreme pressure. I hope that we will be able to accept what is proposed.
Baroness Howarth of BrecklandMy Lords, I would like to apologise to the noble Earl, Lord Howe, for not being here for the whole of his speech. I rise to support the amendment. I have in the past spoken to the Minister about the position of these children. I did so in relation to the Asylum Bill and the concerns carry through into this Bill. One thing that has been said to me—not by the Minister—is that unless we carry out actions like this, we will not send a message to the other end of the supply chain. I find that an abhorrent concept—that children should be involved in sending such messages.
I have said this before. We used to say this about children in bed and breakfast hotels. We used to say that because their parents deserved to be treated in a certain way because of the consequences of their rent arrears and their fecklessness—not that I necessarily agree with that, but this was the argument—the children should be placed in bed and breakfasts. The Government have worked enormously hard to ensure that those children are now more appropriately—maybe not perfectly, but more appropriately—accommodated.
This group of children are still children. I recognise the difficulty in relation to the policies that the Minister is under an obligation to support and that she may well be in difficulties in terms of her party's policy. However, were the noble Earl, Lord Howe, to divide the House I would certainly vote for the amendment.
4.45 p.m.
Baroness Ashton of UphollandMy Lords, as always when we discuss this issue, I recognise the strength of feeling and the passion with which noble Lords—not least the right reverend Prelate—have spoken. I
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recognise and understand completely that we are referring to a very vulnerable group of children, to whom we have a responsibility. I have never said—it would be completely wrong to suggest it—that our services do not have a role to play in safeguarding the welfare of children. The question is: how do we make sure that that happens appropriately; and what are the consequences of what we might do in a particular Bill for those services on the ground?
Noble Lords will recognise—certainly it is my experience—that the Immigration Service and NASS encounter many children in extremely difficult circumstances and are aware of the need to ensure that such children are referred to the proper agencies and receive support. I said on Report I shall not repeat it—that arrangements have been established to ensure that such concerns are dealt with as swiftly as possible. I can assure noble Lords that both organisations understand their responsibilities and are strongly supportive of the need to safeguard children and promote their welfare.
I shall not take up your Lordships' time by again going through the measures that I and Ministers from the Home Office have indicated before; I do not believe that there is a contradiction in where my noble friend Lord Bassam and I stand on this issue. We are both of the view that children and their families need to be supported effectively and that there are real issues relating to asylum and immigration.
Throughout the different stages of the Bill, I have worked closely with colleagues, ministerial and official, in both departments to examine what the consequences would be if the amendment were to be made. I am completely of the view that there would be consequences for our asylum and immigration policy. Noble Lords may feel that that is OK, that it is appropriate and that it is what they want to happen, but we are sure that the amendment would have an impact on what we would be able to do in terms of removals and the ability of people to use the Bill for judicial review. It is for those reasons—and those reasons alone—that I cannot accept the amendment. That in no way suggests that we think there are not duties and responsibilities which rest with the services; indeed, I have outlined them. I worry that sometimes we take the view that our services are not mindful of children and families in the work they do, whereas I think they do an amazing job with them in often quite difficult and tragic circumstances. But, ultimately, we have an asylum and immigration policy designed to support people in the best possible way—and that includes removing families on occasion and resettling them. It could be argued that that is appropriate and in the best interests of the children. Refusal of the right to stay on occasion could also be in their best interests.
It is because we believe that the amendment would directly affect this policy that I urge the noble Earl to think carefully about pressing his amendment to a vote. I can reassure noble Lords that this is in no way counter to saying that this is not a responsibility we

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would wish to see for our services to treat these vulnerable children properly. Indeed, they already have one.
Earl HoweMy Lords, I am grateful to all noble Lords who have spoken in favour of the amendment. The right reverend Prelate was right to emphasise the high level of vulnerability of this group of refugee children. I found the speech of the noble Baroness, Lady Howarth, particularly compelling.
I cannot counter the Minister's essential pragmatic point. It is a disappointing argument in the context of a Bill with such high principles, with which we all identify. She has repeated often that the Bill is intended to cover all children, without exception. It is an issue of principle on which it would be right for me to test the opinion of the House.
4.50 p.m.
On Question, Whether the said amendment (No. 21) shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 99.

Division No. 3

CONTENTS

Alderdice, L.

Jenkin of Roding, L.

Ampthill, L.

Joffe, L.

Astor of Hever, L.

Kingsland, L.

Barker, B.

Laird, L.

Beaumont of Whitley, L.

Laming, L.

Blackwell, L.

Lang of Monkton, L.

Brooke of Sutton Mandeville, L.

Listowel, E.

Brougham and Vaux, L.

Livsey of Talgarth, L.

Byford, B.

Luke, L.

Campbell of Alloway, L.

Lyell, L.

Chadlington, L.

Maclennan of Rogart, L.

Colwyn, L.

McNally, L.

Cope of Berkeley, L. [Teller]

Maddock, B.

Cox, B.

Maginnis of Drumglass, L.

Craig of Radley, L.

Marlesford, L.

Craigavon, V.

Methuen, L.

Crathorne, L.

Neuberger, B.

Cumberlege, B.

Northesk, E.

Dholakia, L.

Northover, B.

Dundee, E.

Park of Monmouth, B.

Dykes, L.

Parkinson, L.

Eden of Winton, L.

Rawlings, B.

Elton, L.

Redesdale, L.

Falkner of Margravine, B.

Rees, L.

Ferrers, E.

Renfrew of Kaimsthorn, L.

Finlay of Llandaff, B.

Renton, L.

Fowler, L.

Rodgers of Quarry Bank, L.

Garden, L.

Rogan, L.

Gardner of Parkes, B.

Roper, L.

Greaves, L.

Rotherwick, L.

Greengross, B.

Russell-Johnston, L.

Griffiths of Fforestfach, L.

St. John of Bletso, L.

Hamwee, B.

Seccombe, B. [Teller]

Harris of Richmond, B.

Sharp of Guildford, B.

Higgins, L.

Shrewsbury, E.

Hooson, L.

Shutt of Greetland, L.

Howarth of Breckland, B.

Skelmersdale, L.

Howe, E.

Slynn of Hadley, L.

Howe of Aberavon, L.

Smith of Clifton, L.

Howe of Idlicote, B.

Steel of Aikwood, L.

Hylton, L.

Strathclyde, L.

1466

Thomas of Gresford, L.

Walmsley, B.

Thomas of Walliswood, B.

Weatherill, L.

Tope, L.

Williams of Crosby, B.

Wallace of Saltaire, L.

Worcester, Bp.

NOT-CONTENTS

Acton, L.

Howells of St. Davids, B.

Amos, B. (Lord President of the

Howie of Troon, L.

Council)

Hoyle, L.

Andrews, B.

Hughes of Woodside, L.

Archer of Sandwell, L.

Irvine of Lairg, L.

Ashton of Upholland, B.

Judd, L.

Bassam of Brighton, L.

Kirkhill, L.

Berkeley, L.

Lea of Crondall, L.

Bernstein of Craigweil, L.

Lipsey, L.

Bhatia, L.

McIntosh of Haringey, L.

Blackstone, B.

MacKenzie of Culkein, L.

Boothroyd, B.

Mackenzie of Framwellgate, L.

Borrie, L.

McKenzie of Luton, L.

Brennan, L.

Massey of Darwen, B.

Brooke of Alverthorpe, L.

May of Oxford, L.

Brookman, L.

Mishcon, L.

Campbell-Savours, L.

Mitchell, L.

Carter, L.

Morgan, L.

Christopher, L.

Morgan of Drefelin, B.

Clarke of Hampstead, L.

O'Neill of Bengarve, B.

Clinton-Davis, L.

Pitkeathley, B.

Cohen of Pimlico. B.

Prosser, B.

Crawley, B.

Ramsay of Cartvale, B.

David, B.

Randall of St. Budeaux, L.

Davies of Coity, L.

Rendell of Babergh, B.

Dean of Thornton-le-Fylde, B.

Richard, L.

Drayson, L.

Rooker, L.

Dubs, L.

Rosser, L.

Elder, L.

Sainsbury of Turville, L.

Evans of Parkside, L.

Sawyer, L.

Evans of Temple Guiting, L.

Scotland of Asthal, B.

Falconer of Thoroton, L. (Lord Chancellor)

Sheldon, L.

Farrington of Ribbleton, B. [Teller]

Simon, V.

Stone of Blackheath, L.

Faulkner of Worcester, L.

Strabolgi, L.

Filkin, L.

Symons of Vernham Dean, B.

Gale, B.

Temple-Morris, L.

Gibson of Market Rasen, B.

Tomlinson, L.

Golding, B.

Triesman, L.

Goldsmith, L.

Truscott, L.

Gordon of Strathblane, L.

Tunnicliffe, L.

Gould of Potternewton, B.

Turnberg, L.

Graham of Edmonton, L.

Turner of Camden, B.

Grocott, L. [Teller]

Wall of New Barnet, B.

Harris of Haringey, L.

Warner, L.

Harrison, L.

Watson of Invergowrie, L.

Hart of Chilton, L.

Whitty, L.

Hayman, B.

Williams of Elvel, L.

Henig, B.

Winston, L.

Hilton of Eggardon, B.

Woolmer of Leeds, L.

Hogg of Cumbernauld, L.

Resolved in the negative, and amendment disagreed to accordingly.
5 p.m.
[Amendment No. 22 not moved.]
Clause 9 [Information databases]:
Baroness Ashton of Uphollandmoved Amendment No. 23:
Page 7, line 39, leave out "or"
The noble Baroness saidMy Lords, in moving Amendment No. 23, I shall speak also to Amendments Nos. 27 to 29, 31, 33, and 36 to 39. This group of

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government amendments relates to the information databases to be established under Clauses 9 and 24 and fulfils the commitment I signalled at Report stage to examine whether further reassurance could be given to noble Lords on a number of points.
Before turning to the amendments, I thank noble Lords for their contributions during our debates on information databases and for being willing to meet outside the Chamber to discuss a range of issues. The arguments that have been put forward have been serious and considered. I have listened to them carefully and recognised their force through government amendments and the announcement of public consultation on the key issues of recording concerns and the involvement of sensitive services.
Amendments Nos. 23 and 33 make a drafting correction to subsection (1) of Clauses 9 and 24. I made it clear that we wanted flexibility on whether databases would be established on a national, regional or local basis. As noble Lords have pointed out, it is important that we take such decisions carefully. Noble Lords know that we have commissioned independent advice. We have been advised that the wording of subsection (1) might preclude a combination of local, regional or national elements to the solution. Deleting the word "or" apparently retains the flexibility.
Amendments Nos. 27 and 36 put beyond doubt that the databases are not to contain case records. I have already given reassurances to that effect, but noble Lords expressed concern on Report that the wording of subsection (4)(h) would give the power for such details to be included in the future. We are clear that there must be flexibility to set out new data requirements in regulations, subject to approval of both Houses of Parliament, rather than in primary legislation. I hope that noble Lords will now be reassured that such flexibility may not be used to change the nature of the database from what we have set out, by turning it into a case record for the child.
Amendments Nos. 28 and 37 add to the list of matters that may in particular be covered by regulations the issue of how long information must or may be held on the database. I have agreed with noble Lords in earlier debates that we shall need to be clear about the standards governing the length of time that individual pieces of information and a child's record as a whole should be kept on the database. On Report, I indicated in response to the noble Earl, Lord Howe, that I would bring forward an amendment reflecting his proposal that this matter should be set out on the face of the Bill as one to be covered in regulations. I am grateful to the noble Earl for his suggestion. I hope that I have succeeded.
Amendments Nos. 29 and 38 add to the list of matters that may in particular be covered by regulations the issue of procedures to ensure accuracy. I have agreed with noble Lords in earlier debates the importance of this matter too. For the databases to be effective tools, the information must be up-to-date and accurate. In Committee, I indicated in response to the noble Earl, Lord Howe, that I would consider whether there was more that we could do to reassure noble
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Lords that we share their concern that information should be accurate. The amendment reflects the proposal of the noble Earl in Committee that this matter should be set out on the face of the Bill as one to be covered in regulations. Again, I am grateful to the noble Earl for his suggestion.
Amendments Nos. 31 and 39 provide that guidance or directions under subsection (13) may cover the provision of advice about existing rights under the Data Protection Act. As I have stressed to noble Lords in Committee and on Report, the databases will operate in accordance with the provisions of the Data Protection Act. In response to points made on Report about appeal procedures by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, I reiterated that we do not intend to create new arrangements of this kind, especially for these databases. But I undertook to consider what we might do to reassure noble Lords. I believe that it is very important that people are made aware of their rights under the Data Protection Act. The amendment, therefore, adds the provision of such advice to the list of matters that may in particular be covered by guidance and directions under Clauses 9 and 24. I hope that noble Lords are reassured by this. I beg to move.
Earl HoweMy Lords, first, I thank the Minister for tabling the Government's amendments to this clause, all of which I welcome greatly. She has responded positively to the specific concerns that I and other noble Lords raised at earlier stages.
On Amendment No. 31, it is good news that the rights of the citizen under the Data Protection Act are to be highlighted automatically. That will do much to dispel any idea that secret things are being said and done behind the back of citizens. I am not quite so sure about the extent to which the Data Protection Act allows someone to lodge a formal objection against something and to be certain that it will be dealt with fairly and promptly. The rights conferred by the Act appear to me to fall short of that, but perhaps the Minister will be kind enough to clarify them.
I am concerned that the power of the citizen for getting things done is actually quite limited. In this context, that could be very damaging because, if there is a practitioner's name or a flag of concern that is inaccurate or misleading, it might serve to disadvantage the person whom it concerns if a professional were to happen upon it.
I shall speak briefly to Amendments Nos. 24 and 34. I do not expect the Minister to seize on them as the answer to her prayers, but they are intended as a helpful suggestion which I hope she will consider. It was the Minister who mentioned on Report that there was nothing in Clause 9 to allow the sex of a child to be entered on to a database. As she knows, I am very much a minimalist in my approach to these provisions, but I went away and realised that she had a point. Some names tell you clearly whether you are dealing with a boy or a girl, but other names do not, particularly non-English names. Knowing the gender

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of a child is an essential matter. That is why I felt that the Minister might consider including the word "gender" in the Bill.
Baroness BarkerMy Lords, I too welcome the Government's amendments. Like many other noble Lords, I have pointed out repeatedly the deficiencies of what is now Clause 9. I take heart from the fact that the Minister has listened to a number of the points that have been made.
I welcome particularly the provisions about the Data Protection Act. I share the concerns of the noble Earl, Lord Howe, about whether the Act is a satisfactory instrument by which individuals can seek redress. None the less, it is the law. As I have also said on many occasions, and as the noble Lord, Lord Laming, pointed out early on in his report, the lack of knowledge and understanding among professionals of their scope to share information under the Data Protection Act has had horrible consequences for children. It is therefore important that the Data Protection Act is firmly set in Clause 9.
We support Amendment No. 24. My notes on that state simply "Lindsay, Lesley, Daljit" and there they stop.
Unsurprisingly, I shall concentrate on Amendment No. 30. I am relieved that the Government tabled Amendment No. 28, which deals with the length of time that information should stay on the database. We have said at previous stages of the Bill that it appeared that once information or a flag was on the database, it would stay there until the child's whole record left that database, which would presumably be when the child reached the age of majority.
There is a strong case for including in the Bill annual reviews of data. Events happen through children's lives in the process of growing up that it may be right to have recorded at some point. Equally, it may be important in terms of that child's well being that the continued inclusion of information should be subject to review. There should be a mechanism by which practitioners are encouraged—I would perhaps say "forced"—to review the data that they hold on people.
I, too, shall give the Minister a mythical example. It involves an area containing a number of statutory agencies. Once a year, they might look at all the information they hold on children and, from that, identify the small number—it always is a comparatively small number—who are in receipt of multiple services from different agencies. We should bear in mind that a universal database is involved. It would be advantageous to them and the children to have to undertake an annual review of the information in the database. Much could flow from that, not least because it would enable authorities to see trends and patterns within individual agencies and to examine resources for children's welfare.
At a previous stage, the Minister held out great hope for the consultation that will take place on flags of concern. I remain deeply opposed to flags of concern, as she knows. I make no secret of the fact that my
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perspective involves protecting people who are wrongly adjudged to be worthy of inclusion on practitioners' databases as a cause for concern, and I seek to strengthen their rights. The annual review process would do so. Organisationally, that is a commendable part of good practice. I should prefer it if that provision were in the Bill and then consulted on; it should not emerge from a process of consultation.
Those of us who have argued most vigorously about Clauses 8 and 9 have been very generous to the Government in terms of the promise of forthcoming consultation. Perhaps we have been too generous. On reflection, noble Lords may conclude that we have set a bad precedent. As I said, we were faced with a clause whose drafting was unacceptable to begin with. It is marginally better as a result of additions and it is greatly improved by the noble Baroness's amendments, which we considered today. Such amendments should have been in the Bill in the first place because they contain absolute tenets of basic good practice. For all those reasons it would be advantageous to have an annual review and for that to be specified in the Bill rather than left to regulation.
5.15 p.m.
Baroness Ashton of UphollandMy Lords, I thank noble Lords for the welcome that they have given to the government amendments, albeit with the caveats mentioned by the noble Baroness, Lady Barker.
I say to the noble Earl, Lord Howe, that the DfES lawyers prefer "sex".
Baroness BarkerMy Lords, will the noble Baroness tell us what they think about the Bill?
Baroness Ashton of UphollandMy Lords, there can now be a car sticker—with a Hansard reference no doubt—on this point. Despite the fact that the DfES lawyers prefer the word "sex", they are very happy to accept "gender". We are very pleased to accept Amendments Nos. 24 and 34.
The noble Earl asked me about the data protection principles. As I understand from reading the information that I have been given—I shall ensure that the noble Earl is given a copy—individuals apply in writing to find out what information is on the database. They can apply in writing to have something removed. Ultimately, the matter is for the courts to decide. I do not have available details of the process that the individual goes through in that regard. I shall, of course, write to the noble Earl to clarify that.
Baroness Howarth of BrecklandMy Lords, I apologise for interrupting the noble Baroness but it has just occurred to me that there is a circular regarding access to records which may conflict with what we are discussing. We may need to consider that. I have tried to consult with my noble friend Lord Laming on that, but perhaps I should discuss it outside the Chamber as it might constitute an added complication.
Baroness Ashton of UphollandMy Lords, I should be grateful to know about any added complications. I

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am sure that between them the noble Lord, Lord Laming, and the noble Baroness, Lady Howarth, will be able to track down the circular; in fact, I shall hold them to that, if I may.
On Amendment No. 30 the difference between the noble Baroness and myself is very small. I am not sure that an annual review is sufficient. It is important that a constant review is conducted of the information that is being held. People should be aware of what information is being held in terms of names, contact points and any flags of concern. We want to see something that is unnecessary removed immediately. We want to ensure that we make it clear that where it is obvious that a flag is no longer necessary it should be removed immediately. We want to ensure that regular reviews of the whole process take place. As I say, I am not certain that a year is the most appropriate length of time.
I know that the noble Baroness considers that the consultation exercise is perhaps a bit woolly—I do not know what word she might use—but it is important that we talk to professionals about their experience and consider the experience of the trailblazers. We need to consider carefully the detail of what will be included in guidance and regulations. My job is to ensure that I have put on the record that the regulations will cover the rules on deleting concerns after they have been addressed or when new information is obtained that states that the concern is ill-founded. Furthermore, the guidance and directions that we shall issue on the management and operation of the database should make it clear that one of the functions of anyone operating the database will be to monitor the use of the recording of concerns.
We want to discuss and take views on the regularity of formal reviews. However, we consider that it is important that where there is no need to have a flag of concern on the database—or whatever terminology we end up with as we are consulting on that—it should not sit there. The critical point is that information that is irrelevant should not sit there. I believe that we are all agreed on that. Our method of achieving that is through consultation, the regulations and the guidance. I hope that the noble Baroness will accept that our objectives are not dissimilar to hers and that on that basis she will feel able not to press the amendment.
Baroness BarkerMy Lords, I thank the Minister for that reply. I do not believe that the consultation process is woolly. I do not believe that I have ever said that. I believe that the order of events is wrong in that Parliament ought to determine the principles and the main headlines and then consultation should take place rather than the other way round. However, perhaps the noble Baroness will accept that I was trying to be mindful of the advice of those who seem to prefer the word "sex". They also seem to prefer wording that is as loose as possible. I did not want to hold people to having constant reviews. It was a de minimis measure. However, I take the noble Baroness's point in that regard.
On Question, amendment agreed to.
Earl Howemoved Amendment No. 24:
Page 8, line 6, after "address" insert ", gender
The noble Earl saidMy Lords, I thank the noble Baroness for accepting the amendment. Also, I signal my complete acquiescence if, in another place, the Government choose to change "gender" to "sex". I beg to move.
On Question, amendment agreed to.
Baroness Barkermoved Amendment No. 25:
Page 8, line 18, leave out from "information" to end of line 19 and insert "which gives the reporter cause to suspect that the child in question is suffering or likely to suffer significant harm
The noble Baroness saidMy Lords, I return, for a reason, to debates that we had at an earlier stage of the Bill. I remain deeply sceptical about flags of concern and the basis for them. The noble Earl, Lord Howe, seeks in another amendment in the group to express his concerns in a different way. The point that we have discussed before, but not to any great satisfaction, is what the threshold for a flag of concern will be. We are also concerned that there should be a common threshold across all those who enter information or flags of concern on to the database.
We have already discussed the phrase "cause for concern". I want to take the Minister to task for a particular point. She said:
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.—[Official Report, 5/7/04; col. 593.]
We take exactly the opposite view: it is precisely because of the multi-agency focus, and because there is therefore far greater scope for mistakes in information to be compounded, that there should be a common threshold.
The noble Baroness has argued that Section 17 of the Children Act, which is what the wording is taken from, sets the threshold too high. I have looked at that section and its definition of children who would come under its auspices. It talks about children in need and the standard of health or development, with "development" meaning,
physical, intellectual, emotional, social or behavioural development,
and "health" meaning "physical or mental health". When one compares that to this Bill's list of physical and mental health, protection from harm and neglect and so on, there is very little difference.
I return to a point that I made at an earlier stage. At the moment, children who have Section 17 needs as opposed to Section 47 needs still do not receive help from social services. Therefore, I do not see why, in seeking to establish the level for the flags of concern, Section 17 should not be it. I believe that it is better to build on something that has common currency and understanding among professionals who work with children than to go through what I imagine would be

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a long process of defining "cause for concern" with all the organisations that are going to work with children coming to a general understanding of it. That may not be in the best interests of children. As there is already an answer within Section 17 of the Children Act, I believe that we would be advised to use it in this context. I beg to move.
The Deputy Speaker (Baroness Ramsay of Cartvale)My Lords, I have to inform your Lordships that if Amendment No. 25 is agreed to, I cannot call Amendment No. 26.
Earl HoweMy Lords, I was somewhat tentative in proposing Amendment No. 24. I should not have been, but I am even more tentative as regards Amendments Nos. 26 and 35, which are grouped here.
The Minister will know my worry, which I believe she shares—that is, that the expression "cause for concern" has inbuilt overtones of child protection which are inappropriate. We need an expression that is more value-neutral. I suggested "special attention" but there may be a better phrase.
However, the real reason that I am tentative is that I recognise that what appears on the face of the Bill is in many ways less important than what appears in the subsequent regulations and guidance. I believe we all know and understand the point that we are trying to reach, and it would be nice—even if it is not essential—for the face of the Bill to give precise expression to that. I hope that the Government will continue to reflect on that point when the Bill is debated in another place.
The worry that I have here is somewhat broader and, in some ways, it was reflected in the remarks of the noble Baroness, Lady Barker. We should not assume or take it as read that flags of concern are needed in the first place. I shall not go over all the arguments again but perhaps I may say one or two things.
If flags of concern denote low as well as high levels of concern, quite a lot of them will appear. If databases are intended to act as predictive screening tools, we need to remember that even the most accurate predictive screening techniques available have an unavoidable margin of inaccuracy. One cannot avoid that. Even a 5 per cent margin of inaccuracy in flags of concern will lead to a large number of children being wrongly singled out for attention. The implications of that for resources are a worry to me.
Secondly, if flags are to be generated as a result of a low threshold of concern—by which I mean lower than the threshold which applies when a child is at risk of significant harm—they are bound to lead to an expectation of receiving services. But we all know that the threshold for receiving services is quite high. In those circumstances, one has to ask what would be the point of setting the threshold for flags of concern at a relatively low level and, indeed, what would be the point of having them at all.
According to the report from Royal Holloway college, the best trailblazer pilots are those where concerns are not logged on the database. We have
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returned to the point that we covered previously—that is, that logging something on to a database can never be a substitute for making a professional judgment. It is people and not databases that make those judgments.
Therefore, I hope that, despite the appearance of being wedded to the notion of flags, Ministers will nevertheless allow themselves to keep an open mind on whether flags of concern are likely to be a help or a hindrance in achieving the end result of better outcomes for all children—a result that we all want to see.
Baroness Ashton of UphollandMy Lords, I am very grateful to the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, for their amendments. The noble Baroness talked about Section 17, but her amendment mirrors the wording of Section 47. Therefore, my immediate difficulty with it is that it is not about the threshold that the noble Baroness described; it is about child protection issues, which I do not think is where the noble Baroness was seeking to place it. So, although I reject the amendment because it takes us to a place that I do think the noble Baroness would want us to go, I believe that it is worth saying that.
5.30 p.m.
What we are all searching for is a system that enables us to get the professionals talking to each other; to note that there are professionals involved in the process and that they have some kind of concern—I will come to the phraseology in a moment—long before we are currently able to support children. The noble Earl talked about resource issues, and on those I could not agree more. I made quite a few presentations in the regions on the Green Paper, Every Child Matters, and saw how the graphs are skewed because of how resources are used to deal with crises long after those situations should have been recognised and sorted. That is a real tragedy, which is twofold. First, children do not get the support early enough to prevent a situation becoming a crisis. Secondly, we are not using resources effectively because sorting out crises can often be more difficult.
We want to start lower down the scale in terms of recognising that support might be needed, not to single out children in a negative way, but to recognise the services that work with children and ensure that they are given the support they need. We are all grappling with that to some degree. So I reject the amendment tabled by the noble Baroness. Not only is the point covered in Section 47, but, even taking Section 17 into account, we are trying to start the identification earlier.
I turn to the amendment moved by the noble Earl, Lord Howe. I understand what he is seeking to do, and I am grateful to him for discussing it with me. He will not be surprised to hear that "special attention" contains issues, not least that you need a concern before giving special attention. So, in a sense, it slightly alters the threshold in any event.

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However, I hope that noble Lords will take comfort from the fact that all of the work that has gone into the Bill in deliberating on what we might do has been incredibly helpful to us. It has meant that we are looking carefully to consult properly and effectively. I specifically ensured that the trailblazers, who came to talk to noble Lords, were a representative group with differing views. As we begin to develop the phraseology, it is important that this is not seen as a substitute for action. The noble Earl is right, and the point has been made many times also by the noble Baroness, Lady Barker. I could not agree more that putting something on a database is not a substitute for doing something else. However, if you are trying to find who else you need to talk to or who else is involved with a family, it is critical to have at least an address. We would argue that it is important also to know who to go to first after a matter has been flagged up. The trailblazers have tried different systems. Some have decided not to do that at all.
There is much to be done. However, I would not want noble Lords to think for one moment that their concerns have not been reflected back to my ministerial colleagues or that we do not understand noble Lords' desire to avoid terminology that leads only to child protection or to people thinking that that is the issue. It would not be a preventive system if it failed to achieve what I have just set out.
We are concerned to ensure that public consultation involves practitioners and families—parents, children and young people—and that we learn from the trailblazers while continuing to talk to others who are considering issues about how one practitioner can signal to another their concerns that a child is not thriving in any sense of the word. We are concerned also with mechanisms to signal that concern.
We recognise that it is important to get this right for all the reasons that have been stated both in your Lordships' House and outside. We shall carefully consider thresholds and terminology. I very much look forward to bringing back to your Lordships' House the results of those deliberations, which I have already indicated I shall make available not only to noble Lords who have spoken but also in the Library of the House. I look forward to the opportunity to debate those issues.
On that basis I hope that noble Lords will withdraw or not press their amendments.
Baroness BarkerMy Lords, the luck of the noble Lord, Lord Northbourne, has not rubbed off on this side of the House. I take heart from what the noble Baroness has said and we will be extremely vigilant when the regulations arrive. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
Baroness Ashton of Uphollandmoved Amendments Nos. 27 to 29.
Page 8, line 20, after "description" insert ", not including medical records or other personal records,"
Page 8, line 35, at end insert—
( ) as to the length of time for which information must or may be retained;
Page 8, line 35, at end insert—
( ) as to procedures for ensuring the accuracy of information included in any such database;
On Question, amendments agreed to.
[Amendment No. 30 not moved.]
Baroness Ashton of Uphollandmoved Amendment No. 31:
Page 9, line 29, at end insert—
( ) the giving of advice in relation to rights under the Data Protection Act 1998 (c. 29);
On Question, amendment agreed to.
Clause 16 [Joint area reviews]:
[Amendment No. 32 not moved.]
Clause 24 [Information databases: Wales]:
Baroness Ashton of Uphollandmoved Amendment No. 33:
Page 18, line 38, leave out "or"
On Question, amendment agreed to.
Earl Howemoved Amendment No. 34:
Page 19, line 6, after "address" insert ", gender"
On Question, amendment agreed to.
[Amendment No. 35 not moved.]
Baroness Ashton of Uphollandmoved Amendments Nos. 36 to 39:
Page 19, line 20, after "description" insert ", not including medical records or other personal records,"
Page 19, line 35, at end insert—
( ) as to the length of time for which information must or may be retained;
Page 19, line 35, at end insert—
( ) as to procedures for ensuring the accuracy of information included in any such database;
Page 20, line 29, at end insert—
( ) the giving of advice in relation to rights under the Data Protection Act 1998 (c. 29);
On Question, amendments agreed to.
Clause 45 [Ascertaining children's wishes]:
Earl Howemoved Amendment No. 40:
Page 31, line 38, after "wishes" insert "and feelings"
The noble Earl saidMy Lords, in moving Amendment No. 40, I shall speak also to Amendments Nos. 41 and 42. I was extremely appreciative that on Report the Minister tabled what is now Clause 45 to ensure that children's wishes will be taken account of whenever a local authority is considering providing services to a child.
I should like to press the Minister further. Ascertaining a child's wishes lies at the centre of good practice for all the reasons the Minister gave when introducing her amendment. Indeed, it is a concept that underpins a great deal of what is in the Bill. Wishes though are often only a part of what a child has to tell us. Young children and disabled children in

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particular may not be able to articulate their wishes in a measured and coherent way. Sometimes even older children will not be able to do so.
On the other hand, virtually all children will invariably be able to say how they feel. Feelings of anxiety, fear, anger, love, loathing and uncertainty in a child are quite different from a wish that a child may express for this or that particular thing. General feelings of this sort are often just as relevant in arriving at a decision on how a child might best be helped. It is no surprise that the conjunction of feelings with wishes features in a great deal of legislation relating to children. I think particularly of the Adoption and Children Act 2002, but there are a number of other important examples; for instance, Sections 1 and 22(4) of the Children Act 1989.
The reason for that is perfectly straightforward. In many situations it is simply not possible to reach a conclusion about what may be in a child's best interests until you find out what the child is feeling. This is far from being a semantic point; feelings and wishes are distinct, not only in ordinary language but in legal terms as well. I believe that it is right to add the word "feelings" into Clause 45 if we are going to do justice to the intention behind it.
I turn to the remaining amendment in this group. On Report, a number of noble Lords tried to press the Minister to carry forward the principle she very helpfully recognised in relation to Section 17 of the Children Act 1989 to Section 47 of that Act. I should like to do so again because, unusually with the Minister, I was not and am not convinced by the arguments that she put forward for resisting the proposal, either when she spoke on Report or in her subsequent letter to me, for which I was very grateful.
In her letter, the Minister explained that she did not think it appropriate to create a statutory duty to seek the wishes of the child when a local authority is considering whether to take action to safeguard a child's welfare. She argued that the time to consult a child is not when a local authority is considering whether to take action, but after that when it is considering what action to take. At that point, one of three possible sections of the Act might apply, including Section 17, and in all of those situations ascertaining the child's wishes would be mandatory.
We need to be careful in discussions of this kind that the larger picture and the larger issues are not buried by somewhat rarefied arguments. If you ask most people why Victoria Climbié was not rescued by the authorities, I suspect one reason would feature more than any other, which was that no one actually spoke to her. Let us be clear: Victoria Climbié fell squarely into Section 47 territory. The bruises and burns on her body had been noticed, and a number of people were debating what ought to be done. When Victoria's carers were approached, the questioners were fobbed off, and no action of any kind was taken. Nearly all the high profile child death inquiries of the past few years concern children under the age of 10. One of the most consistent themes in inquiry reports is the complete invisibility of the child's wishes and feelings.
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It simply is not right to say that whenever a local authority goes through the Section 47 process and then decides to take action, Section 17 will be triggered or may already have been triggered. Frequently, an assessment under Section 17 is bypassed altogether. It is certainly bypassed in many instances when a child is thought to be seriously and imminently at risk. Even in that circumstance, are we really going to say that when a child is about to be removed from his family home, that child should not be part of the decision making? Of course we do not say that, other than in exceptional circumstances. All the literature emphasises how important it is that the child is spoken to, yet time and again when it really matters, that does not happen.
I know that the Minister is concerned that there should be some discretion open to a local authority. The amendment that I have tabled allows for the possibility that it may be impracticable to speak to a child, in which case there would be no legal obligation to do so. In most cases, where a child's welfare is in question, we ought to be saying that it should be a sine qua non for the child himself to be seen and listened to. That is not a change to the guidance; it is a strengthening of the guidance. I hope that the Minister will reconsider the issue. Out there, I simply do not think that it would be understood if an amendment such as this was not made. I beg to move.
Lord EltonMy Lords, I speak only in order that my silence will not be taken as anything other than absolute agreement with everything that my noble friend has said.
Baroness WalmsleyMy Lords, I have added my name to all three of the amendments in this group. The Minister gave us the impression that she feels that the guidance is working well, when we spoke about that on Report. The noble Baroness, Lady Andrews, quoted research into the impact of the assessment framework introduced in 2000, and she said:
All the evidence suggests to us that the participation of children in that period has increased and is working well.—[Official Report, 24/5/04; col. 1059.]
Unfortunately, the research referred to and published last year only included the views of eight young people. The summary report noted,
Their views and experiences, however, mirror previous research findings and suggest that social workers continue to experience difficulty in ensuring children and young people fully participate in decisions that are likely to affect them.
The Minister also expressed concerns about situations in which a child might be in danger, and obviously we all support her in those concerns. She said:
Where there are urgent concerns we believe that the child's safety must remain the overriding and absolute consideration and social services, or whoever, need to act and act swiftly. We are concerned to ensure that that is paramount.—[Official Report, 22/6/04; col. 1223.]
Section 47 is not restricted to questions about the child's safety, but whether the child is suffering, or is likely to suffer, significant harm. Where the child's immediate safety is of concern, as the noble Earl, Lord Howe, has just mentioned, the amendment does not prevent a local authority taking immediate action

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to protect it. As regards Section 17, the Minister also argued on Report that it was likely that many children in those situations would be found to meet the Children Act 1989 definition of children in need and that the amended Section 17 would be applied to them in any case when immediate safety issues have been addressed. Section 17 provides for the provision of services to children in need. A child protection investigation is the decision-making process that comes before the provision of any services to the child. So children will be covered by the Clause 45 amendment to Section 17 only if they are seen to be in need of services. It does not cover the child protection investigatory process itself before the services are provided or help children who are deemed not to be in need. For those reasons, the noble Earl, Lord Howe, and I have retabled the amendment.
Lord HyltonMy Lords, earlier today the Minister pleased the whole House by accepting Amendment No. 19 concerning the emotional well-being of children. Having done so, she will have uphill work in resisting the insertion of the words "and feelings" at this stage.
I draw attention to Amendment No. 42 and subsection (4)(c) which seems to be intended to make sure that proper weight is given to a particular child's wishes and feelings in the light of his age and understanding. That is important, otherwise quite wrong conclusions may be reached. I support the amendments.
Baroness Howe of IdlicoteMy Lords, I support the amendments and particularly Amendment No. 42. I have listened to what has been said and read the careful detail in the amendment, and I believe a case is more than made. It has been proved, alas, that there has been failure to record the kind of detailed information from children to obtain their feelings and reactions in private. That is crucial in coming to the right conclusion. I hope that the Minister will be able to accept the proposals.
Lord LamingMy Lords, the problem I have with Amendment No. 42 is that prior to undertaking the Victoria Climbié inquiry I would have thought that this was the core of good practice and that every authority would have ascertained the wishes and feelings of the child in the circumstances and having access to the child unless, as the amendment says, that proves to be neither practicable nor urgent.
The Victoria Climbié inquiry had quite a devastating impact on me because I found it incomprehensible that a child could be referred to so many different services with clear indications of deliberate harm. Not only was the child not properly seen and discussed but she was placed under police protection without having been seen. Then the police protection order was removed without the child being seen. The child was taken to hospital and the person who took her there was not even interviewed. So we have to face the reality of what happens out there sometimes.
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I live in the hope that that case was the exception rather than the rule, but having gone around the country, I have to say that my level of confidence is not altogether high. Anything that can be done to reinforce what I am sure every Member of the House recognises are basic elements of addressing children's needs in these circumstances must be supported.
Baroness Ashton of UphollandMy Lords, let me begin by talking about Amendments Nos. 40 and 41. I recognise that accepting amendments on the hoof may lead to the noble Lord, Lord Hylton, taking me hostage somewhat for my own behaviour earlier on. That is probably the reason why I was warned against doing things like that. I shall have to face the music later.
As the noble Baroness, Lady Walmsley, indicated, the amendments would add the words "and feelings" to new Section 17. I am grateful for the welcome given to the amendments that we have put forward on "wishes" which I believe the noble Earl, Lord Howe, remarked was one of the four or five most important issues of principle raised when we considered the Bill in Committee.
I understand absolutely the sentiments that lie behind the proposal, and I understand fully that there will be Section 17 cases where a child cannot, or cannot be expected to, articulate his or her wishes. If a child is too young, is suffering from a disturbance or is coming under pressure from a division of loyalties, it may be very difficult for that child to express his or her wishes. As the noble Lord, Lord Laming, said, it is good practice and in accordance with the Framework for Assessment of Children in Need and their Families for an attempt to be made to ascertain a child's feelings.
We have also received legal opinion that is concerned to preserve the distinction between "wishes" and "feelings" as separate constructs, and to have them both expressed in Section 17. It would still be possible of course for a local authority in discharging its duties to consider to what extent it needs to ascertain a child's feelings, and to consider how to factor its conclusions into the decision-making process.
My concern, however, is that by accepting the amendments we would create an unplanned and unintentional inconsistency between Section 17 of the Children Act, which would refer to "wishes and feelings" and Section 20 of the Act, which requires a local authority to ascertain only a child's "wishes" about the accommodation provided for him.
Consistency between Section 20 and Section 17 is very important because they are sometimes considered together as alternative routes for assisting a child. They are both about providing services to children in need. Where a child or member of his family is provided with services under Section 17, which may include accommodation, he does not become a looked after child. By contrast, where the child is provided with accommodation under Section 20, he does become looked after.

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If we require feelings as well as wishes to be considered under Section 17, it seems to suggest that more investigation of the child's state of mind is required about providing services like home help, cash for beds or school uniforms than is required under Section 20. That is clearly not right.
It is clear to me, therefore, that we must consider carefully any changes to Section 17 because of their implications for Section 20. As noble Lords know, the words "wishes" and "feelings" have very different meanings legally. "Wishes" are what a child wants, or says he wants, while "feelings" are more complex—they are emotions which are not necessarily about what the child wants. At present, the Children Act 1989 refers only to the need to ascertain "feelings" in relation to the decisions made by a court or by local authorities in exercise of their corporate parenting role, but not in relation to specific issues around the provision of particular services.
We need to ensure that we do not upset the balance in the Children Act, which is an effective piece of legislation that has stood the test of time. So I am asking the noble Earl to withdraw his amendment on the basis that we will consider the issue it raises and bring it back in the Commons. We want to do two things: first, we want to find out why in 1989 the Act referred to "wishes" and not "wishes and feelings" because we do not know; and, secondly, we want to ensure that Section 17 and Section 20 do the same. I hope, on that basis, the noble Earl will feel comfortable about withdrawing his amendment. We just have not had time to establish the exact circumstances and we do not want to have two pieces of legislation in the same Bill that do not equate to the same thing.
I turn to Amendment No. 42, which would amend Section 47. Only last week I spent a considerable time talking to representatives of children's organisations who are concerned about this.
I have also spent a significant amount of time talking to our legal team about this, because I know how strongly noble Lords feel about it. Noble Lords know that under Section 47, a local authority is required to make inquiries where there is reason to believe that a child is suffering or likely to suffer significant harm, in order to ascertain whether it is necessary to take action.
Clearly the child concerned should be involved in the decision about what action is taken, and this is made clear in Government guidance. In any case, any action as a result of Section 47 inquiries is likely to be taken under local authority powers in Sections 17, 31 or 20 of the Children Act 1989.
I will not go into all the detail, although I have it all here, but under Section 17 there is a requirement that the child's wishes be taken into account. Under Section 31, a child's wishes and feelings are crucial to any decision that is taken. Under Section 20, a looked-after child's wishes and feelings would have to enter into every decision. We have covered the issue in those three different areas.
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I have looked carefully at Section 47 and we are certain that this is a potential difficulty for us. Section 47 covers a range of circumstances where we believe that social services and others might—as I said on Report—have to take action without ascertaining the child's wishes and feelings. I recognise that the amendment is not the same as the original provision, which required the child's views to be ascertained unless sufficient information has already been obtained about the child's circumstances, wishes and feelings, and not just about the child.
It may well still be the case that social services or others might take action to secure the child's safety without having any information about their wishes and feelings. We believe strongly—I rarely feel as strongly as I do about these issues—that we have to be clear on this. They must be able to act immediately in these circumstances. I take the point about the tragedy of Victoria Climbié, but she was a Section 17 child before she was a Section 47 child. That was such a dreadful example of systemic failure that nobody asked her at any point. There are lots of points in the process at which she would be asked under the amendments and changes that have already been raised. It is important that we are clear what allowing the amendment to Section 47 would do.
The other example that I discussed with the legal team concerned some of the work being done by the social services as a result of the Government guidance Achieving Best Evidence—for example, as concerns sexual abuse cases. People oeed to take enormous care about interviewing children before the instigation of proceedings which may be criminal proceedings. I should like to give noble Lords an example, although I rarely do so as examples are always difficult. If there were a family of four girls and there was clear evidence of abuse of three of them by a family member, we would argue—I am sure that noble Lords would all agree—that we should take action to secure the safety of the fourth child without interviewing that child about their wishes and feelings in advance.
When legal proceedings are possible great care has to be taken that any interviews are not inappropriate. They must be done at the right time, in a way that does not traumatise the child and by well trained people who know exactly what to do, particularly where criminal proceedings are involved.
I know that those two examples are in extremis, but they are real examples that would be covered by the amendment. That is why we should not pass the amendment. I accept that in all the other parts—Sections 17, 20 and 31—the issue is important, and I also agree that wherever possible it is still important that we do this in advance and that we certainly do it once a child is removed from danger. However, the amendment would affect the two specific cases I have described and I urge great caution because I believe that that could lead to something that no noble Lord wants.
My final point is about the phrase "in writing". We do not believe that it is sensible to put that provision on the face of the Bill. Most social services

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departments are moving to electronic recording systems for recording the child's wishes and such a system would not count as writing. Also, social workers and others involved with children might be visually impaired and would not record a child's wishes in writing. We should not put that kind of absolute requirement on the face of the Bill.
I hope that with what I have said about wishes and feelings and my undertaking to take that back, and the strength of my feelings about Amendment No. 42, noble Lords will feel able to withdraw the amendments.
6 p.m.
Earl HoweMy Lords, I thank all noble Lords who have spoken in this important debate. As regards Amendments Nos. 40 and 41, I hope the Minister will forgive me for saying that the explanation she gave for resisting them might to many people seem technical and legalistic. But, having said that, I welcome her assurance that she will take steps to investigate the apparent disparity in the Children Act and ensure that the issue will be debated in another place when the Bill reaches there.
I understand that one possible reason for the disparity is that under Section 20 of the Children Act a child automatically becomes looked after, and under Section 22(4) the scope of that provision relates to all looked after children. There is a point to that difference because Section 22(4) refers to "wishes and feelings".
As to Amendment No. 42, I am still troubled that, in an active process of inquiry involving social workers going around and talking to as many relevant people as possible about a child before reaching a conclusion, the one person lying at the centre of the whole exercise will not be consulted. I return to what I said earlier about how critical it is in the vast majority of cases to ensure that children are involved in decisions about whether or not action is taken. Seeing them and listening to them may result in a very different outcome from the one that the professionals would otherwise have in mind. The amendment allows for the discretion referred to in the examples given by the noble Baroness because it contains the words "reasonably practicable".
Perhaps I can press the Minister to go as far as she did with Amendments Nos. 40 and 41. Even if she cannot accept the amendment as it stands—I recognise that the requirement to record in writing a child's wishes may be a defect, but it is a point of detail—more important is the point of principle. I am grateful to the noble Lord, Lord Laming, for supporting that point of principle. If the noble Baroness is able to say to me that she and her colleagues will look again at the principle of putting something on the face of the Bill, with the exceptions and with the discretion that she feels appropriate—I understand the examples that she gave
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in hard cases—I will know better what to do with the amendment. With the leave of the House, perhaps I may ask the Minister to comment on that.
Baroness Ashton of UphollandMy Lords, we have no difficulty with the principle behind what the noble Earl, supported by the noble Baroness, Lady Walmsley, seeks to do. As far as possible, we want children always to have their wishes, feelings and views taken into account. The difficulty is that if we translate that into law on the face of the Bill we have to take care that there is not an unintended consequence.
I am more than happy to take the matter away, look at it again and pass the views expressed back to my right honourable friends the Secretary of State and the Minister for Children. I merely add the caveat that we were not able to find a suitable vehicle with which to do this, but we shall look again with great pleasure.
Earl HoweMy Lords, I am grateful to the Minister. In the circumstances, I do not believe that I can ask her to do more. It would not be appropriate to press the amendment in this form. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 41 and 42 not moved.]
The Earl of Listowelmoved Amendment No. 43:
After Clause 46, insert the following new clause—
"DUTY OF SCHOOL GOVERNING BODY IN RELATION TO PUPILS WHO ARE IN PUBLIC CARE
The governing body of a community, foundation or voluntary school or a maintained nursery school shall secure that the teachers in the school are aware of the importance of identifying, and providing for, those registered pupils who are in public care."
The noble Lord saidMy Lords, first, I thank the Minister for her earlier assurance that there will be an amendment relating to the commissioner's responsibility for children in care and care leavers. That matter requires more thought at the current stage. I take comfort from the fact that, although young offenders will not be included in his remit, at least he will be able to look at the 30 to 40 per cent of young offenders who come out of care and decide to make a report about their experiences.
My amendment would put a duty on the governing body of a school to ensure that the teachers in the school were aware of the importance of identifying and providing for registered pupils in public care. The role of the designated teacher was established in the guidance published in 2000. It is the designated teacher's duty to liaise with the local authority and support other teachers in the school. I would like to quote from the guidance. On page iii, it states:
Primary legislation will be needed to place complementary duties on LEAs and schools, and to give statutory force to paragraph 5.34.
Paragraph 5.34 states:
To summarise, schools should designate a teacher to act as a resource and advocate for children and young people in public care
The Government made a commitment at that time to put the role of the designated teacher into statute: that commitment has not yet been fulfilled. The point

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was raised at the last stage of the Bill, but no answer was made. I hope that the Minister will explain what has become of that commitment.
The role of the designated teacher is important but, unfortunately, in the Government's report A better education for children in care, evidence about the impact that they have is mixed. Some schools allow non-contact time for designated teachers to liaise with other agencies and attend planning and review meetings. Elsewhere, designated teachers have few or no additional resources and can struggle to reconcile their different roles, particularly where they have to combine teaching and advocacy functions. There is an inconsistency in practice in this vital role.
Noble Lords who attended a meeting last week with practitioners and a researcher who has just published research after three years working in this area will have been impressed by the concern about the inconsistency in practice of designated teachers and personal education plans. This is a serious concern. The noble Baroness, Lady Byford, has expressed a concern that we must not single out one group of children in the Bill. It is a Bill for all children. But this is a special group of children, and it is allowable to single them out. Even so, I urge her to consider that the Government have made a commitment here already. I hope that she will be able to think about that matter. I welcome the sympathetic tone of the response given to a similar amendment in Committee. I recognise the difficulty with this matter.
The designated teacher—what a role it is! The designated teacher is told that a child is in foster care or a children's home; her job is to advise other teachers in the school of that information. That is such sensitive information. How would a child in care feel if it was not used sensitively? One of the concerns is that designated teachers should be senior teachers, but often they are not. They should be well trained, but often they are not. They should have time to meet with local authority representatives, but often they do not.
From my own small experience of assisting a teacher in a school, I remember a young man who kept on sticking his hand up every time a question was asked, and shouting out before any other child answered. It was very frustrating and annoying. Perhaps if it had continued, I would have grown increasingly frustrated and thought how to move the child out of my class. But I met the boy's family, and what came through at our meeting was quite clear. He had grown up without much contact with his father and was rather keen to get my attention, as one of the few men in the school. Later on he started making gifts to me, which was very charming.
It is so important to understand the other side of the equation. That is the role of the designated teacher—to ensure that there is good communication between the local authority and the school. It is a crucial role.
The number of exclusions of children in public care is 10 times higher than for other children. But for a child who has been in care briefly, the number of exclusions is 20 times higher. It is so important to intervene early to prevent such experiences.
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I draw noble Lords' attention to a recent report from Her Majesty's Inspectorate of Prisons, Juveniles in Custody. This is the first time a representative sample of the under-18 prisoner population has been systematically consulted concerning their treatment in England and Wales. Some 83 per cent of boys and 65 per cent of girls had been previously excluded from school. Furthermore, 37 per cent of boys and 43 per cent of girls had previously spent time in either a care or foster home, or both.
I shall not go into the Social Exclusion Unit report, as I recognise the time constraints upon us. I am very concerned, however, that the Government are moving in this direction. Over the last four or five years that performance targets for looked-after children have been issued, quite specific bench-marks have been set for how we will improve the educational attainment of those children. For instance, the proportion of those aged 16 who get qualifications equivalent to five GCSEs grade A to C should have risen, on average, by four percentage points each year since 2002. In all authorities, at least 15 per cent of young people in care achieve this level of qualification.
Just this week, a new performance target has been issued to narrow the gap in educational achievement between looked after children and that of their peers,
and improve their educational support and the stability of their lives so that by 2008, 80% of children under 16 who have been looked after for 2.5 years or more will have been living in the same placement for at least 2 years, or are placed for adoption.
That is a very laudable aim, which it is important to achieve. But I am reminded of what I used to come across when I visited children's homes. The staff would say that a child had so many problems that they could not expect that child to engage in school and would just look after him or her there. There is an awful lot of truth in that.
The Government have made a mistake in the past in terms of underestimating the difficulties that many of these children currently experience because of their past histories, and the instability in their lives. But it is not either-or, it is both-and. It is both providing the stability in their home environment and foster care environment and providing encouragement and support in school. In that regard I am very concerned that the Government are stepping back.
I am concerned to see the implementation take place of the tools that are so valuable. Placing a duty on the governors in this fashion would be the best way. We cannot make absolutely certain that it will happen, but it is the best way. I have spoken to many governors about this and they have been sympathetic on the matter. I have taken much advice from a governor of 18 years' experience, who is also a teacher.
We need to ensure that the educational experience of these children is the best. The Government should fulfil their commitment. I look forward to hearing from the Minister how they intend to achieve that. Such children are special, but their outcomes are appalling; we could do more to achieve better outcomes for them. The tools are there but we need to see that they are implemented. I beg to move.
6.15 p.m.
Baroness Sharp of GuildfordMy Lords, my name is attached to this amendment and Amendment No. 44 stands in my name and that of my noble friend Lady Walmsley. It is an alternative format for the same issue.
Briefly, I shall explain why we support one and propose the other amendment as a possible alternative. Section 21 of the Education Act 2002 requires each school governing body to conduct the school with a view to promoting high standards of educational achievement within the school. Governors already have a responsibility under Section 317 of the Education Act 1996 to make special educational provision available for students with special educational needs. That includes a duty to ensure that teachers in a school are aware of the importance of identifying and providing for pupils with special educational needs.
Recently governors have acquired a new duty under Section 175 of the Education Act 2002 which requires them to safeguard and to promote the welfare of children. Amendment No. 43, which we support, seeks to enhance that power in relation to children in public care because, as the noble Earl has explained, schools often fail to recognise their responsibilities to looked-after children under this section of the 2002 Education Act.
Amendment No. 44 goes one step further and asks that schools take account of the social needs of pupils by providing a non-inclusive list of social needs. An amendment similar to Amendment No. 43 was tabled at Report stage. The Minister correctly pointed out that children in public care come with a continuum of need and, therefore, the amendment could require schools to do something for children when at least some of them did not need such attention.
The Minister also pointed out that the Government's plans for individualised learning should meet the concerns that we expressed. She said that,

our concern is to ensure that we recognise that looked-after children in schools need additional support; that they get the support appropriate to their needs, not their category; and that we support all of our schools in developing, for their own governing bodies, the kind of policies appropriate to the population of children that they have.—[Official Report, 22/6/04; col. 1215.]
It is likely that children in public care who achieve the highest academic qualifications do so with a great deal of understanding and support from their schools. Most schools will attempt to provide that support without being told to. This amendment makes it clear that the few schools that do not do that will be told to do so.
The Minister also pointed out that it would be wrong to single out children in public care as in need of special attention. The amendment attempts to meet those concerns by including this non-inclusive list of social needs of which schools should take account. The Government claim to have brought together various support services to help children under the overall objective stated as follows in last week's five-year plan:
every child gets the best possible start in life—with integrated services focused on the needs of parents and children, not chopped up according to provider.
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Has Parliament, through legislation, backed that admirable objective? The amendment is needed to ensure that schools recognise all the needs, including the social needs of children. It would ask schools to recognise that a pupil's educational achievement can be affected not only by his special educational needs but by his special social needs.
Children often come to school frightened because they do not know when they are going to see their parents again. They come to school having just lost a beloved grandparent. They come to school from an overcrowded house. They come to school after having been in the country only a couple of weeks. Those children are not going to fulfil their potential. Schools can do much to help them, not least because they have more contact with the school than any other agency. Schools which are fully participating in the co-operation arrangements under Clause 7 will know how to get the additional services required to help those young people achieve and lead fulfilling lives. Those are the reasons why one or other of the two amendments is needed.
Baroness Howe of IdlicoteMy Lords, my noble friend Lord Listowel is almost in the same category as my noble friend Lord Northbourne in his dedication to looking after children. Many of us in your Lordships' House would pay great tribute to him for that.
In addition to supporting his amendment, I have great sympathy also with the more broadly based Amendment No. 44. Although I understand fully the concerns that have been expressed about overloading the teachers and the governing bodies, in the specific case of looked-after children, an important extra point should be made. In such cases, the local authority is the corporate parent of such children. Whether the children are in residential care or are looked after by a foster parent, it is still the local authority which is the parent. Therefore, since the children spend a great deal of their time in the school environment, a special, extra duty should be placed on the governors of that school to see that teaching and support bring the best out of such children and unleash their real talents.
We should not forget the appalling figures. Twenty-seven per cent of looked-after children have special education needs, in contrast to only 3 per cent of all other children. Only one in 100 children goes on to university, whereas one in three of the rest of the child population does so. That is a clear indication of the need for extra support for the emotional well-being of children who are inevitably under stress because of a broken home background or whatever.
There is great support for the amendment from the Local Government Association. It regards the issue as vital. Alison King, who chairs the social affairs and health executive of the Local Government Association, supports the amendment and regards the whole issue as vital. Although I gather that the National Governors' Council was a little concerned about over-burdening governors, it too acknowledges that many governors perhaps did not know about the lack of achievement of looked-after children.

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For all those reasons, I hope that it will be possible to do rather more. I fully acknowledge that the Government have the issue very much in mind and have set a number of initiatives well under way. However, to extend the duty to governors would spread the burden a little and move the process more quickly on.
Lord NorthbourneMy Lords, I shall be brief. We should ask two questions: first, is it right to single out children in care? In spite of the seductive reasons for including all kinds of other children, it probably is right that they are a very special case. The other question is whether schools wish to have that job imposed on them. My point is that responsibility for children in care lies with local authorities. Yes, they should work through schools but, yes, they should jolly well pay for it.
Baroness Howarth of BrecklandMy Lords, I have a different view. I pay real tribute to my noble friend Lord Listowel, who spoke so well for children in care. I want to make three brief points. First, talking to the director of children's services in CSCI has made it clear that not all children want to be identified in school as being in public care. If we are ascertaining the wishes and feelings of children, we must listen. I am rather concerned that this is a blanket arrangement.
On assessments, it is crucial that when a child is in need, the local authority should take proper action—it should currently be doing that—to talk to the school about the child's needs and to ensure that the proper, designated teacher takes the appropriate action. I understand absolutely what my noble friend Lord Listowel said.
A real issue is involved with Amendment No. 44; that is, how one would specify which children would be brought forward. Procedures are already in place but I am unsure whether they are being properly carried out. Will the Minister consider whether there are other ways in which that could be done? I have tremendous sympathy with the general thrust of the proposal but I am concerned that it will gather in children who would prefer not to be gathered in.
Lord EltonMy Lords, proposed new subsection (2) in Amendment No. 44 returns us to asylum seekers. I still have difficulty accepting the most unfortunate decision that the House made on Amendment No. 21 on the inclusion of the children of asylum seekers in the protection of certain parts of the legislation. Anything that we can extend to them at a later stage is to be welcomed.
I also want to leave a thought in the Minister's mind for her journey to the other end of the corridor, although it may not be a complete remedy to what we have so far decided in this regard. The Minister is looking very puzzled. I hope that when she reads Hansard she will understand what I am driving at. The exclusion could be limited. The argument that she advanced against the proposal of my noble friend Lord Howe was that judicial review under the provisions could be used by the parents of children to
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delay orders for their own repatriation. I want her to consider the possibility of making such proceedings subordinate, if that is the right word, to repatriation proceedings so that they could not be used in that case.
I see from the Minister's face that there will be no reply to that from the Dispatch Box this evening. I am quite content for her to reply later. I wanted to utter a friendly word on the amendments and I will leave that thought with her.
Lord DearingMy Lords, when the Minister spoke on Report on this amendment, the logic that she adduced for not accepting it was persuasive; that is, that we must care for every child as an individual and not by category. The noble Earl, Lord Listowel, referred to the fact that exclusion is 10 or 20 times more likely, and that 30 to 40 per cent of young offenders have been in care. We should also bear in mind the fact that the amendment seeks only to require governors to see that teachers are aware that such children are in their care. That is not asking a great deal. Given the damage that is done to their lives through insufficient care, there is a special case in this regard.
6.30 p.m.
Baroness Ashton of UphollandMy Lords, I am very grateful to everyone who has spoken on this matter. I agree with what noble Lords have said about the tenacity of the noble Earl, Lord Listowel. I believe that he and I have met 11 times outside the Chamber during the passage of the Bill to discuss this matter. I am enormously grateful for the amount of time that he has devoted to doing that.
The two amendments in this group try to address the needs of what we recognise is an extremely vulnerable group of children. The issue before us is twofold. First, is this the right way to tackle the matter? Secondly, is this the way to make a difference in those children's lives so that we can all go home and feel comfortable that we have achieved something? Alternatively, do we need to consider whether legislation is always the answer to some of the questions that have been raised? I argue that the way in which the Government approach the matter demonstrates our commitment to this very vulnerable group of children whose educational achievements and life chances constitute a scandal. What one puts on the face of legislation must constitute a crystal clear way of addressing the issue.
I shall not reiterate everything that I have said previously in the House or in discussions elsewhere. We take very seriously the report of the Social Exclusion Unit, which firmly stated that the critical relationship was with the corporate parent. The corporate parent needs to do what we hope every parent does for their child, which is to ensure that they get back-up and support in education. We all know that educational attainment and achievement are still too much determined by the kind of background that one has. If children do not have a supportive environment with opportunities to learn and to use computer equipment and so on, they can be

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disadvantaged. We believe it is critical that we make it absolutely clear where the responsibility lies and do not shirk it or shuffle it off elsewhere.
The noble Earl and I met with a group of young people who were either in care or leaving care. They mentioned the critical word that we have incorporated into our PSA target; namely, stability. What they really want is stability. Often that translated for the older ones into the kind of accommodation that they would obtain. As we have seen on some BBC programmes featuring looked-after children, stability for them constituted not carrying their possessions around in black plastic bags but having the stability that is their due. Stability is critical because without it children cannot acquire educational attainment. We can demonstrate that we have taken this issue extremely seriously.
I turn to Amendment No. 44 tabled by the noble Baroness, Lady Sharp. I know that she did so in a helpful spirit. However, we are back to my favourite word of "list" which I have not used yet on this Third Reading. I know that the noble Baroness will recognise the difficulties that a list engenders. Immediately I thought of Traveller children who constitute a very particular group of children who need additional support. They often have instability in their lives and often do not get the support that is needed to help their educational attainment, not least because they travel. I think also of young carers—a group that we have discussed previously in your Lordships' House—who have an average age of 11. They desperately need support. However, as I believe the noble Baroness, Lady Howarth, will recognise, young carers often do not want to be recognised as such. They fear bullying and being asked questions about their parents, perhaps because the parent has a mental health problem.
I do not want any list ever to appear in a piece of legislation that might make a disadvantaged child less likely to get the attention and support of a school. The only way for them to get that attention and support is to make sure that every child matters and that every child in every class in every school is important. That is the critical line that I cannot cross because I consider that it is so important. It is also important that we recognise a school's capacity, that we ensure that we support schools effectively and that we seek to do things as efficiently as we possibly can.
The noble Earl referred to designated teachers. I accept absolutely what he said about there being more work to be done in that regard. We want to make sure that designated teachers work effectively but that does not mean that we do something else instead; it means that we ensure that we give them the necessary support. I agree with much of what the noble Earl said in that regard. He introduced me to the gentleman who had done the relevant research who had much to say about ensuring that the training that is given is pitched at the right level and that appropriate support is given.
I undertake to ensure that the guidance we send out on the duty to promote the educational attainment of children will reinforce the importance of giving
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governors and teachers the right kind of advice and training to support looked-after children. That guidance will go to local authorities.
We are pursuing the recommendation to provide guidance on the kind of questions that governors could raise with their schools about the education of looked-after children. We will link that guidance with the guidance on Clause 44. We are taking forward the recommendation on the Teacher Training Agency for best-practice materials to help the education of looked-after children, making sure that all teachers are aware of how the care system operates and understand the particular needs of children in care. That work will build on the existing teacher training guidance, which already makes it clear that teachers,
are expected to have a professional commitment to raising the educational achievement of all their pupils, whatever their background.
I agree with what was said by the noble Baroness, Lady Sharp, about personalisation being critical. We believe that we have the position right. The corporate parent must take responsibility and do it properly. We will look at the guidance and do what I have undertaken to do. With that reassurance, I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of ListowelMy Lords, I thank the Minister for trying to assuage my concerns, and for spelling out how she will ensure that practice is reinforced in this area. That will clearly be helpful and improve what is being delivered currently.
My noble friend Lady Howarth raised a very important point about the sensitivity of the information and how children in care may not wish the school's people to know their background. When the department was working hard to develop the guidance, it thought about that issue carefully and came to its conclusions after a lot of consideration. The question is extremely difficult. I can tell her that an awful lot of thought has gone into preparing the guidance on the subject. A very careful balance has to be struck. The same is true of the information-sharing on the database. Partnership working between the school and the local authority is so sensitive and needs so much thought, but that thought was undertaken. The conclusion was that there should be a designated teacher, but a senior and well trained teacher. Unfortunately, that is not the case consistently enough. I recognise the significance of what she said, however.
I welcome what the Minister said, and will have to take it away; I detect that there might not be much progress if I sought to press the amendment. I absolutely agree with what she said about the corporate parent. It is the local authority, as my noble friend said, but there is a partnership also. We are discussing a Bill that enshrines new means to encourage partnership working. It is vital that schools and local authorities work together. One in four children is placed out of their local authority. It becomes very hard for the local authority to keep in touch with its child, so in practice what the school does is very important.

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I will continue to raise the issue with the Minister, and I am sure that she will continue to raise it with me. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Clause 52 [Interpretation]:
Baroness Ashton of Uphollandmoved Amendment No. 45:
Page 33, line 29, after "means" insert ", subject to section 2(10),"
On Question, amendment agreed to.
Clause 54 [Commencement]:
Baroness Ashton of Uphollandmoved Amendment No. 46:
Page 35, line 15, at end insert—
( ) section 49 comes into force at the end of the period of two months beginning with the day on which this Act is passed;
The noble Baroness said: My Lords, I shall be very brief. These are technical provisions consequential on the agreement of an amendment in your Lordships' House on Report. Section 49 is the new clause on reasonable punishment. Amendment No. 46 proposes that the section come into force two months after Royal Assent, in accordance with the accepted convention. Amendment No. 49 reflects the new clause in the Long Title. I beg to move.
On Question, amendment agreed to.
Schedule 1 [Children's Commissioner]:
[Amendment No. 47 not moved.]
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 48:
After Schedule 1, insert the following new schedule—

CHILDREN'S SERVICES AUTHORITY: CONSEQUENTIAL AMENDMENT
Education Act 2002 (c. 32)
In section 21 of the Education Act 2002 (general responsibility for conduct of school), in subsection (3), after sub-paragraph (i) insert—
"(ia) children's services authority,"
The noble Baronesssaid: My Lords, I fear that I shall detain your Lordships a little while with this amendment because it is fairly substantive. It seeks, again, to deal with the issue of schools being a partner in co-operation under Clause 7. However, on this occasion, because we have suggested an amendment to Schedule 1 and because at Third Reading Schedule 1 comes at the very end of the Bill, we are now moving this amendment at the end of the Bill.
What we are suggesting here affects Section 21 of the Education Act 2002. That section enables regulations to be made which define the respective roles and responsibilities of local education authorities, governing bodies and head teachers in relation to the conduct of the school either generally or in respect of particular matters. The Minister may remember that I have, from time to time, asked her when the draft
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regulations under this section are likely to be presented for consultation. By the look of it, she is waving them at me now. But that is a separate issue and I do not wish to pursue it at present.
The amendment would add the children's services authority to the list which includes the local education authority, governing body and head teacher. I admit that it is a further attempt to get schools bound into the co-operation arrangements provided under Clause 7 of this Bill.
Many of us were surprised, especially in view of the Government's wish to devolve local education responsibilities to individual schools, that schools are not mentioned explicitly in the Bill as having a duty to co-operate. Amendment No. 48 allows regulations to be made which will mutually define the roles of the children's services authority and the school governing body under the overriding principle that the conduct of the school shall be under the direction of the school governing body.
Perhaps all comment about school participation in the co-operation arrangements should be prefaced with the view that the vast majority—perhaps as many as 99 per cent—of schools will willingly participate in the arrangements. To use the words of the DfES Five Year Strategy for Children and Learners:
Every school—not just extended schools—should do their utmost to serve the needs of the whole child.
Indeed, the five-year strategy envisages a system of interlinked and interdependent schools, with children's services and education seen as part of one whole.
So far, the Minister has resisted amending Clause 7 to bring schools fully into the co-operation arrangements on the grounds that Clause 7 is about strategic partners and that schools, although important players in cooperation, are not strategic partners. In Committee, she said:
we do not believe that it is appropriate to expect every small primary school to be involved in detailed strategic decision making. That is the role of the local education authority, which is well placed to represent schools as a whole and, by keeping in contact with them, to ensure that their views are sought and passed back appropriately.—[Official Report. 20/5/04; col. 948.]
The Minister then went on to say that statutory guidance will make it clear that the children's services authority must engage with schools and colleges, including academies and city technology colleges. In turn, she suggested that the local education authority should issue tailored guidance which reflects the local arrangements that have been set up for co-operation. Earlier in the debate, she also pointed out that representative schools could be directly involved as relevant partners.
On Report, I moved Amendment No. 42, which asked that schools should take account of the guidance from the LEA in relation to the co-operation arrangements. The Minister rejected that amendment. She said that, as schools do not have a duty to participate in co-operation arrangements, they cannot be placed under a duty to take account of guidance

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about the co-operation arrangements. The Minister stated that the new framework enabled by the Bill provides for,
new inspections, area reviews, the new relationship we are seeking with schools and extended schools and our ambition to support … services and see the child in a broader way.—[Official Report, 17/6/04; col. 1002.]
The Minister reminded the House that schools are already judged by the extent and effectiveness of their partnership with others. In particular, inspectors must evaluate and report on the quality of links with local communities and other schools. She continued:
Using the framework of inspection and what we expect of schools without placing the burden—it would be resisted with good reason by this House—we can secure the cultural change and engage schools properly through the co-operation agenda.—[Official Report, 17/6/04; co1.1003]
6.45 p.m.
It would seem that a clear statement by Parliament that schools should participate in co-operation arrangements would be the simplest and most straightforward way of saying that schools should participate in co-operation arrangements. Schools which wish to become extended schools are most likely to want to participate in co-operation arrangements. Although the five-year plan has statements such as, "We want every secondary school to become an extended school", in reality that would mean, to paraphrase the plan, that they will provide some study support activities before and after school and at lunch times; let out rooms to enable community use of school facilities and encourage family learning.
That is not the sort of co-operation envisaged in the Bill. Indeed, these are not the services which are needed by students likely to fall through the gap. Services to support the hardest to reach young people are likely to be provided in the 240 "full service" extended schools, which we hope will be set up by 2006 as promised in the five-year plan. This amounts to barely more than 10 per cent of secondary schools and 1 per cent of the total number of schools.
The likelihood is that most children who need such services will not be attending such a school where the services they need are on site. The full co-operation of the home, non-extended school will be required if young people are to take advantage of the available services. If the schools do not want to co-operate, those children will continue to fall through the gap. It is for that reason that we should like to see the Bill amended and for it to be made clear that all schools should co-operate. Amending Schedule 1 in the way suggested would enable that to take place. I beg to move.
Baroness Ashton of UphollandMy Lords, as the noble Baroness indicated, we have had discussions on this both in Committee and on Report. I was grateful for her recap of what I said because it means that I do not have to repeat it.
It is the case that we want these arrangements to be strategic. This is about joint planning, joint commissioning, sharing resources and pooling
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budgets. That is why we have listed the relevant partners and placed them under a duty to co-operate with these arrangements at a strategic level because they are strategic level bodies.
However, as the noble Baroness indicated, I said that schools and other frontline delivery agents are central to the delivery of the outcomes for children and young people, and that children's services authorities and relevant partners will need to consider how schools and other providers can be effectively involved in the planning and delivery of services for children and young people.
Our approach to this is to make it clear in statutory guidance that schools should be involved in whatever way is most appropriate locally. That might be directly through a local partnership body or through existing collaborative and consultative mechanisms. We just do not believe that it is a matter for central prescription but rather something that should be left to local decision making as appropriate depending on the type of school, the way in which the schools are operated, and so forth.
I do not accept—I know that the noble Baroness did not say this but I feel that perhaps it is implied—that schools will be reluctant to engage with this. We can talk about extended schools. As she knows, I have a five-hour speech on extended schools ready at any point. I shall resist.
Schools have thought about how best to support not only the children within their own school community but the community at large, within their own resources; they have thought about the way in which they organise themselves to work collaboratively with other services and to recognise that children arrive with all the baggage from the day before, good or bad, and they have thought about how best to be able to support children in a broader way.
The information-sharing database and the common assessment framework will help to involve schools more appropriately. We are also considering other ways to encourage schools in effective partnership. This morning my right honourable friend Margaret Hodge made a speech to the inter-agency group, which looked at the way in which the inspection arrangements and the new arrangements we propose could perhaps be used to look at how schools contribute to the five outcomes that we have outlined as being important.
There are lots of different ways in which we want to involve schools. The difference is that we are not going the route of central prescription through legislation but rather allowing schools to do things collaboratively and recognising, as the noble Baroness does, that within the five-year strategy the ways in which schools might take on more functions, as, indeed, some schools already are by delegation from local authorities, gives us a really good opportunity to develop their role more fully.

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I hope the noble Baroness will see, if not this evening then as this rolls out, that the amendment is unnecessary. I completely agree with her that engaging schools is important. We just think that there is probably an easier and better way.
Baroness Sharp of GuildfordMy Lords, at this hour I certainly shall not press the amendment. I should like to leave two thoughts with the Minister. First, should not Section 21 of the Education Act 2002 be amended to take account of the existence of children's services authorities? Secondly, I would like her to ponder the changing role of schools within the community as envisaged by the Government. Many schools are being created as more independent and autonomous entities. It is very important that, as regards the Children Act and the setting up of children's services authorities, schools play a part.
When we argued the case, the Minister always argued, "Yes, but the local education authorities are there as the strategic partners. They are the corporate parents in relation to looked-after children and so on". In many cases, the local education authority is going to play a very small part, and sometimes no part whatever, in the government of the school. In such cases schools themselves will have to be brought in as partners. There is no mechanism within the Act for doing that. So I should like the Minister to ponder that as the Bill goes on to the other place and to think about whether it might not be appropriate.
We are suggesting a very minor change—one that the Government should, arguably, be making anyway. They have set up a new institution, the children's services authority, which should be accommodated within the framework of the Education Act 2002. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Uphollandmoved Amendment No. 49:
Line 6, after "panels," insert "the defence of reasonable punishment,"
On Question, amendment agreed to.
An amendment (privilege) made.
On Question, Bill passed, and sent to the Commons.

Student Fees (Amounts) (England) Regulations 2004
6.52 p.m.
Lord Triesmanrose to move, That the draft regulations laid before the House on 2 July be approved [24th Report from the Joint Committee].
The noble Lord said: My Lords, Section 24 of the Act makes provision for the Secretary of State to make regulations prescribing the basic and higher amounts which will apply from 2006–07. These regulations were
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made available in draft form during the passage of the Bill, so I believe that noble Lords will already be familiar with their content.
The regulations perform two functions. First, they set a basic and higher amount for the fees which may be charged to full-time undergraduate students. Secondly, they describe the courses to which lower limits apply in an academic year.
The process for agreeing the regulations is set out in Section 26 of the Act. In the case of a first set of regulations, the Act requires that the regulations are laid before and approved by each House. That is the purpose of today's debate.
Future increases in both the basic and higher amounts are restricted to inflation unless, in the case of the basic amount, approved by affirmative resolution, or, in the case of the higher amount, by an amendable resolution. Indeed, noble Lords will recall that that was one of the concessions we made during the passage of the Bill in order to strengthen the role of Parliament in this process and to reinforce our commitment that any debate on above-inflation rises in the higher amount should take place on the Floor of both Houses.
In any case, no such increases can take place before 2010 at the earliest. That, too, is written on the face of the Bill.
We have already spent a good deal of time discussing the principle of variability, and I am sure that noble Lords will not think it appropriate to go over that ground again this evening. The regulations simply set the fee levels that we discussed throughout the passage of the Bill and will apply to full-time, undergraduate courses from 2006–07. Only institutions with an agreed access plan will be able to charge up to the higher fee. Those without such a plan will be restricted to the basic fee. The framework for the sanctions regime, which will apply if an institution charges more than it should do, is set out in the Act. It was subject to considerable debate in your Lordships' House. That is in the condition of grant, which we intend to lay on the Higher Education Funding Council for England. We published a draft of the condition of grant when we debated the fees section of the Act in Committee. I hope that it goes without saying that we do not expect institutions to act in a way that would necessitate the use of those provisions, but as noble Lords will know, they offer important safeguards for students.
Ordinarily, the fee levels set out in Regulation 4 will apply: a basic amount of £1,200 and a higher amount of £3,000. There will be specific courses where a different basic and lower amount will apply, and those are set out in Regulation 5. Under that regulation, the basic and higher amounts are set at £600 and £1,500 respectively, half of the levels that would normally apply. Noble Lords will recognise that the courses listed in this section are essentially those for which students already pay half-rate fees under the current system. They include students on sandwich placements; students undertaking a year abroad; students on part-time ITT courses; and students whose final year lasts for 15 weeks or less.

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For those students, we are continuing the half-rate principle, but whereas the present institutions automatically charge the half-rate fee for those courses because that is the rule that has been set by the Government, in future they will have the discretion on what level to charge, up to those fee caps. They can charge very much less if they wish, and they will need to justify to their students charging at the level they propose for the year abroad and so on.
It is those regulations, backed by the Act's provisions, which give effect to our promise that fees will be no more than £3,000 in real terms. The regulations complete the set of undertakings about fees that we made when we took the Bill through both Houses of Parliament. As your Lordships will no doubt recall, there was some talk at the time that we would not stick to £3,000 as a cap. Fanciful figures of £10,000 and £15,000 were mentioned. Our intentions have always been clear, and these regulations deliver to the letter on the promises. Once made, the £3,000 cap cannot be lifted by more than inflation until 2010 at the earliest. That is due to Section 26 of the Act. By then, Parliament will have had the benefit of the report by the independent commission, which will report directly to Parliament in 2009 on the first three years of fee variability.
The content of these regulations and the principles that underlie them are already familiar to the House and have been subject to extremely painstaking and detailed debate. I remember it all with great affection. I beg to move.
Moved, That the draft regulations laid before the House on 2 July be approved [24th Report from the Joint Committee].—(Lord Triesman.)
Baroness SeccombeMy Lords, I thank the Minister for outlining the regulations. One listens to the pledges in the regulations and considers the hollow pledge that was made in the manifesto of 2001:
We will not introduce top-up fees and have legislated to prevent them.
It is disappointing that the Government broke those manifesto commitments. We can only hope that the pledges that they have given this time will not be broken as soon.
In the 1998 Act, the Treasury, having introduced fees when it said it would not, kept the cash that it received. Since that time, government funding per student has fallen by 10 per cent. Now students are to be saddled with debts of around £30,000. But as the Minister said, we have debated these issues at great length in recent days. Now is not the time to revisit the matter as I do not wish to waste your Lordships' time by repeating myself.
I shall make a few points. I am glad that eventually the Government did climb down over gap year fees. It will certainly help 28,000 students and their families. I particularly wish to thank the noble Baroness, Lady Ashton of Upholland, for all her efforts in achieving that.
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We are grateful for other changes as the Bill progressed, but obviously disappointed that there were not more. The removal of additionality from the Bill in another place was distressing, particularly as the Government failed to back up their arguments. But perhaps the most important problem that remains with the Bill is that it will not fill the funding gap. Who knows whether future students will be deterred by the huge increase in fees. The regulations cause me sadness and now we have to await the decision of the electorate.
Baroness Sharp of GuildfordMy Lords, when I studied economics there was a category of goods which were called regrettable necessities. I regard the regulations before us today as regrettable necessities. As the noble Lord made clear, we have debated at some length fairly recently the Act on which these regulations are based. I argued hard and passionately that there should be no basic or higher amount because from these Benches we wish to see no fees at all. I did not receive support from all sides of the House and certainly not from the Government Benches. We did not manage to change the Government's position. It is therefore a regrettable necessity that we now have these regulations before us. In so far as they are a true reflection of what we agreed within the Act, I have no quarrel with them whatever.
Like the noble Baroness, Lady Seccombe, I believe that the Act opens up a new era for British students. We shall see young graduates burdened with very considerable amounts of debt. It will be very interesting to see the reaction of graduates. That is one of the issues that we debated; namely, the unintended consequences. My noble friend Lord Russell has just reminded me that we already have great problems in recruiting for courses in our chemistry departments, which are normally four-year degree courses. Therefore, a larger amount of debt is entailed. It is quite likely that some of the science departments will find themselves in considerable trouble when recruiting students from now on. We shall see.
I accept the Minister's statement that the Government will abide by their promise not to raise the fees until 2010. When they are raised they will come before this House, as these regulations have, for authorisation. We shall have a chance to debate them. Sums in the region of £10,000 and £15,000 were mentioned as regards the rise we might see in 2010. The Minister may remember that it was no less a person than the Rector of Imperial College who raised the possibility of fees in the region of £15,000 per student.
For the moment the higher amount will be £3,000, which we accept. We have no quarrel with the regulations although we do regret them.
Lord TriesmanMy Lords, I thank both noble Baronesses for their comments. Their speeches merit a short reply, not least the invitation to the electorate made by the noble Baroness, Lady Seccombe, to pass the final judgment on this matter. The manifesto commitment was made in response to a threat towards the end of the last Parliament that some universities

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wanted to charge up-front fees of up to £15,000 a year. Sir Richard Sykes may well have such an ambition, but he may feel that that has been somewhat limited by the legislation that has been before the House. I believed then and I believe now that such an unregulated system would be wholly wrong. That is why the commitments were made and unregulated fees are still prohibited by the legislation that has been passed. The £3,000 cap remains in place.
It is also worth reiterating an undertaking given in the debate on the Bill which I make in response to the comment of the noble Baroness about what was said and done in 1998. We believe that the increases that have been introduced in the recent spending reviews will cover a large proportion of the financial needs of the sector in the short term while, over the longer term, income from variable fees will provide additional funding worth around £1 billion per year. I want to make the further point that if, as we expect, the fees generate an extra £1 billion, that is what the universities will get, not a pound less. I could not put it more simply than that.
Earl RussellMy Lords, I would be grateful if the Minister could tell the House how the Government decide which of the financial wants of universities they choose to classify as needs. What evidence do they use to reach that decision?
Lord TriesmanMy Lords, I think that the noble Earl, Lord Russell, knows the answer even before I say it. The funding councils in the various parts of the United Kingdom are explicit about what they believe are the needs of universities in their forward bids. The organisation Universities UK makes detailed observations, as do other bodies. They are charged with the good stewardship of the finances of universities and, generally speaking, they express the
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needs. Whether it is always possible to meet the full needs they describe is another matter, but in general we have tried to do so on their advice.
I turn to a comment made by the noble Baroness, Lady Sharp, in describing some of the consequences. Of course these are early days and it is true that we will be reviewing the consequences. The data currently available cover only the impact of the level of fees thus far. Inevitably that is true. But I do not think that there are grounds for deep pessimism. The UCAS figures published only a couple of days ago have quite rightly received a little press attention, although perhaps not as much as they should. They show that the total number of applications in the most recent UCAS figures is up by 2.9 per cent. I shall not go through the whole list, but the noble Baroness mentioned chemistry in particular. Applications for chemistry courses have risen by 6.5 per cent over the year. I am encouraged by that because I want to see the sciences prosper as well as other subjects. People coming through in the sciences must be an encouraging sign for us all, irrespective of our approach to the Bill.
I think that I have responded to the main points made by the two noble Baronesses. I commend the regulations to the House.
On Question, Motion agreed to.

Traffic Management Bill
Bill returned from the Commons with certain Lords amendments disagreed to with reasons for such disagreement; with a further Lords amendment disagreed to but with amendments proposed to the words so restored to the Bill; and with the remaining Lords amendments agreed to; it was ordered that the Commons reasons and amendments be printed.
House adjourned at nine minutes past seven o'clock.