Lords Sitting of 21 June 2004

Preamble
The House met at half-past two of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Coventry): The LORD CHANCELLOR on the Woolsack.
Lord Tunnicliffe
Denis Tunnicliffe, Esquire, CBE, having been created Baron Tunnicliffe, of Bracknell in the Royal County of Berkshire, for life—Was, in his robes, introduced between the Lord Berkeley and the Baroness Gibson of Market Rasen.
Lord Laidlaw
Irvine Alan Stewart Laidlaw, Esquire, having been created Baron Laidlaw, of Rothiemay in Banffshire, for life—Was, in his robes, introduced between the Lord Strathclyde and the Lord Harris of Peckham.
The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Falconer of Thoroton): My Lords, before business begins, may I take the opportunity to inform the House that I will be undertaking ministerial visits to Newcastle on Friday 25 and to Oxford on Monday 28 June? Accordingly, I trust the House will grant me leave of absence.

Holiday Health Advice
2.43 p.m.
Lord Chan Lord Chan asked Her Majesty's Government:
What they are doing to ensure that United Kingdom residents travelling to tropical countries on holiday are given appropriate advice on protection against common infections.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the Department of Health makes travel information and advice available to United Kingdom travellers via its publications Health Advice for Travellers and Health Information for Overseas Travel. Those publications are also available on the Department of Health website. The department also issues latest health travel alerts on its website showing any large disease outbreaks that may affect UK travellers.
Lord Chan: My Lords, I thank the Minister for that Answer. An increasing number of Britons are travelling to tropical countries, a growing number of whom are falling ill through diarrhoeal diseases and, more seriously, suffering from malaria; there has been a doubling of deaths. Does the Minister agree that it is now time for travel agents to be given information that
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they can pass on to people who book travel to tropical countries so that they can be saved from not only discomfort but also danger?
Lord Warner: My Lords, the noble Lord may be aware that Health Advice for Travellers already provides a lot of information. The website is being constantly updated, including information from the FCO website. We are piloting information on the NHS digital online system and information is available on Ceefax. Certainly, we shall consider the noble Lord's issues, and I pay tribute to his work as patron of the Malaria Consortium.
Baroness Harris of Richmond: My Lords, does the Minister have any particular plans to raise the awareness of the specific dangers of skin cancer, taking note that Britain now has more skin cancer deaths than Australia?
Lord Warner: My Lords, I think that we have covered that ground before. The Government are funding the SunSmart programme that Cancer Research UK is running now, which aims to educate people about the dangers of excessive exposure to the sun's rays.
Baroness Trumpington: My Lords, can the Minister tell me the equivalent of 999 in tropical countries?
Lord Warner: My Lords, I am tempted to say that it is the Department of Health website.
Lord Taylor of Blackburn: My Lords, does my noble friend agree that there are still quite a lot of people in this country who do not have access to websites, and so forth? It is the department's responsibility to inform people who do not possess those facilities.
Lord Warner: My Lords, of course, my noble friend is right. I was merely trying to make a commercial for the Department of Health website. But we print millions of copies of Health Advice for Travellers and Health Information for Overseas Travel, which are available.
Earl Howe: My Lords, in reviewing the advice that the Government give to travellers in line with the very good suggestion made by the noble Lord, Lord Chan, will the Government also bear in mind the recent statement from Dr Nick Beeching of the Liverpool School of Tropical Medicine? He said that compared to 10 years ago we have roughly the same number of cases of malaria—about 2,000 to 2,500 a year—but that the majority of them are now the more lethal form of malaria. Is that not a particular cause for concern bearing in mind that, according to the institute, increasing numbers of travellers neglect to take suitable precautions?
Lord Warner: My Lords, it is correct that the number of cases fluctuates a little each year. That partly turns on rainfall in some of the Africa countries

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where many of the cases for imported malaria are caught. We are aware that two-thirds of imported salciparum cases, which tend to be the most fatal, occur in London. The vast majority are in the African population. The figures show that there has not been a significant year-on-year increase over the past 10 years, although there has been fluctuation between years.
Lord Soulsby of Swaffham Prior: My Lords, will the Minister provide information to the medical profession in this country about the dangers of antibiotic-resistant organisms and drug-resistant malaria that may be acquired in tropical countries? Travellers may be taking preventive medication in the false sense of security that they are free from any infections.
Lord Warner: My Lords, the noble Lord is right about the problems of antibiotic-resistant bacteria. That issue was covered by the Chief Medical Officer in his Winning ways document last year. We try to ensure that doctors are well aware of the therapeutic advice to give to their patients. We must hope that patients follow that advice.
Baroness Oppenheim-Barnes: My Lords, can the Minister say whether there is any regulation in relation to the purveyors of sun-creams and the claims that they make? Does his department put out advice about what strength is the least that one should use for safety purposes?
Lord Warner: My Lords, I think that advice is covered in the SunSmart campaign that Cancer Research UK is operating. I shall look further into the question raised by the noble Baroness and I shall write to her.

Iraq: Financial Institutions and Mr Ahmed Chalabi
2.50 p.m.
Lord Hannay of Chiswick Lord Hannay of Chiswick asked Her Majesty's Government:
Whether the appointments to Iraq's financial institutions by Mr Ahmed Chalabi, a member of the Governing Council, will promote good governance and the financial integrity of those institutions.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, Ahmed Chalabi, as chairman of the Iraqi Governing Council's economic and finance committee, oversaw appointments to some of Iraq's key ministries and institutions. However, he had no role in appointing officials of the Iraqi interim government, which will assume full sovereignty on 30 June. These appointments were announced by Prime Minister-designate Iyad Allawi following
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recommendations from the United Nations Special Adviser, Lakhdar Brahimi, who conducted intensive and wide-ranging consultations to come up with individuals who would govern Iraq in a competent manner during the interim period.
Lord Hannay of Chiswick: My Lords, while thanking the Minister for that Answer, may I suggest that it is perhaps a little beside the main point? Are we satisfied that appointments made by Mr Chalabi during his period of office, and during which period we were jointly responsible for the governance of Iraq, are such as to be conducive to the future of Iraq? If not, are we taking steps to convey any information we have about the gentleman and anyone he may have appointed to the new government?
Baroness Symons of Vernham Dean: My Lords, it would be hard to say that we are entirely satisfied when one of the appointments made by Mr Chalabi was of someone who acted as the chief anti-corruption official in the finance ministry. He was subsequently arrested on charges of extortion, fraud, embezzlement and abuse of authority. So I imagine that that sort of appointment is causing the noble Lord some concern.
It is precisely in order to deal not so much with Mr Chalabi as an individual but to address the years of corruption in the Iraqi system that important steps have been taken to introduce proper regulatory frameworks in the form of laws for the central bank, for financial management and for public procurement, as well as ensuring that future appointments are made directly under the aegis of the Prime Minister-designate.
Lord Hurd of Westwell: My Lords, does not the noble Baroness agree that Mr Chalabi is still very much around and that this is the latest twist in a tangled story, including that of his telling the Pentagon what it wanted to hear about Iraq regardless of its accuracy? Pursuing the point made by the noble Lord, Lord Hannay, can the Minister ensure that the new Iraqi Government will have available all the information which we now have about Mr Chalabi's financial and intelligence activities so that, where necessary, they can make their own judgment about his reliability?
Baroness Symons of Vernham Dean: My Lords, it is very important to ensure that not only are there proper laws in place, as the noble Lord implied, but also that we do not encourage the Iraqi Government to go back to a system in which only one individual has complete oversight over financial institutions. There will be a role for the International Advisory and Monitoring Board, the IAMB, which was a matter of intense discussion earlier this year. There will also be a CPA inspector-general and an Iraqi board of supreme audit. In order to have those regulatory bodies in place, it is important that they are also able to undertake the role of looking at each other's position.

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The noble Lord is quite right to point out that this is a very tangled story and that there will be many different views on Mr Chalabi's role in it.
Lord Wright of Richmond: My Lords, can the Minister tell us whether, as members of the coalition authority in Iraq until the end of this month, we have received a request for extradition of Mr Chalabi from Jordan and, if so, what was our response?
Baroness Symons of Vernham Dean: My Lords, I am unaware of any request from the Jordanian Government for extradition. Mr Chalabi's conviction by the Jordanian court is a matter of public record and any further steps are for the Jordanian judicial authorities and the Government of Jordan, as well as for Mr Chalabi himself. But I do not think it right for me to comment any further on that case.
Lord Wallace of Saltaire: My Lords, given the amount of information that has been coming out about Mr Chalabi's various activities, some of it extremely confusing, can the Minister reassure us that among the various inquiries about intelligence sources in the run-up to the Iraq war now under way, we are looking particularly at how far credence was given to reports which now appear to have come from Mr Chalabi and his associates?
Baroness Symons of Vernham Dean: My Lords, it is important that we do not come to conclusions about Mr Chalabi's role on the basis of anecdotal evidence. There is a great deal of chit-chat around Mr Chalabi, some of which may be accurate, but some of which, I would suggest, may not. Mr Chalabi has been associated with a number of different issues, and the noble Lord referred to that of intelligence. The question of intelligence in the context of the United States and the basis on which it was given is for the US Government to assess. Our own intelligence effort before the conflict is a matter now under consideration by the noble Lord, Lord Butler, who I am sure will give us a very objective assessment.
Lord Campbell-Savours: My Lords, first, could there be a connection between the allegation that has recently surfaced in Washington about Ahmed Chalabi and his demands for a full inquiry into allegations of fraud in the management by the UN of the Oil for Food programme? Secondly, is there not a need to find a scapegoat for WMD intelligence failures? Finally, and most importantly, is the fact that since last November Mr Chalabi has called repeatedly—including in this House—for the withdrawal of US troops to garrison and the transfer of security in Iraq to a fully armed Iraqi security force. Is it not the simple truth that the Americans created Mr Ahmed Chalabi, and that now that they do not agree with him any more they want to destroy him?
Baroness Symons of Vernham Dean: My Lords, Mr Chalabi is a controversial, one might almost say a colourful, figure. It is absolutely true that Mr Chalabi
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is extremely concerned about fraud in relation to the United Nations Oil for Food programme. I discussed that with him myself when I was in Baghdad earlier this year.
My noble friend has adduced two other reasons why individuals may seek to discredit Mr Chalabi. It has equally been put to me that Mr Chalabi has his own reasons for trying to discredit others. Where the truth of the situation lies, I cannot tell. But I can fell noble Lords about Mr Chalabi's role in making sensitive appointments in the future. It will not be the role he has had hitherto.
Lord Howell of Guildford: My Lords, whatever the connections and appointments of Mr Chalabi may have been, and some do seem pretty curious, does not the Minister agree that the currency reforms, along with those of Iraq's financial institutions and banking structure, while they may have a long way to go, have been remarkably successful and very well managed? Is not that the kind of story about which we should hear more rather than endless negative reporting about the work of the coalition in Iraq?
Baroness Symons of Vernham Dean: My Lords, that is absolutely right, which is why I sought to stress my point about changes in the law and changes in the regulatory framework in Iraq. I am enormously grateful to the noble Lord for confirming my view that these are important reforms.

Human Fertilisation and Embryology Authority
2.58 p.m.
Lord Walton of Detchant Lord Walton of Detchant asked Her Majesty's Government:
In view of their intention to abolish some quangos, whether they expect to review the constitution and functions of the Human Fertilisation and Embryology Authority.
Lord Warner: My Lords, the answer is yes. The review of the department's arm's-length bodies covers a wide range of organisations, including the Human Fertilisation and Embryology Authority. The constitution and functions of the HFEA are very important and are set out in the Human Fertilisation and Embryology Act 1990. All arm's-length bodies are subject to periodic review and the Human Fertilisation and Embryology Authority is no exception. The Act is also itself the subject of a review, announced by the Parliamentary Under-Secretary of State for Public Health on 21 January 2004.
Lord Walton of Detchant: My Lords, I thank the Minister for that reply. Is he aware that the medical and scientific community regards this admirable body as being the very model of what a regulatory authority ought to be, not only in its licensing role but also in its advisory capacity? The body is widely commended and

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appreciated in other countries, many of which are now trying to replicate the functions of the HFEA and to produce bodies with a similar constitution. Are the noble Lord and his colleagues willing to accept the old adage: "If it ain't broke, don't fix it"?
Lord Warner: My Lords, I always pay tribute to old adages, in particular when they come from the mouth of the noble Lord. As I have said, on 21 January last we committed ourselves to a review of the 1990 Act. That legislation has served this country well, as has the authority, which has earned an international reputation. But times and many of the technologies have changed and we have to review the Act. I stress also the other part of my Answer: it is important to look at whether there should be changes in the arm's-length bodies themselves.
Baroness Harris of Richmond: My Lords, is the Minister able to tell us when the Government plan to introduce new legislation to cover such issues as human cloning, stem cell research and sperm donation?
Lord Warner: My Lords, the Government have no plans to introduce legislation on subjects such as cloning and stem cell research. These have been thoroughly debated in both Houses of Parliament and we have no plans to make changes in these areas.
The Lord Bishop of Oxford: My Lords, I declare an interest as a recently appointed member of the HFEA. Whatever refiguration of the HFEA might result from this arm's-length body review, does the Minister agree that strict regulation of work on embryos has been essential, is essential and will continue to be essential? Will he ensure that the review takes into account paragraph 8.1 of the House of Lords' Select Committee report on stem cell research? It states:
"The regulatory system established by the 1990 Act has worked well. The linchpin of the system is the HFEA…it has also been instrumental in reassuring the public that regulation in a particularly emotive area of public policy is carried out effectively and sensitively".
Lord Warner: My Lords, I agree very much with the remarks of the right reverend Prelate. As I said earlier, we pay tribute to the work that the HFEA has done in establishing an internationally recognised system for controlling research and treatment programmes in relation to embryos. We have no intention of abandoning that international reputation.
Baroness Warnock: My Lords, will the Minister reassure the House that whatever the new title of the HFEA—if there is to be one—and whatever its new functions, it will continue to be sufficiently well funded so that it can carry out its duties efficiently, including, especially, the duty of wide consultation on controversial issues? At the moment, this is part of the respect in which it is held as a model for other
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institutions. It is an open and consultative body. I hope that the Minister can reassure the House that this work will continue to be funded.
Lord Warner: My Lords, the bulk of the HFEA funding comes from the charges that it makes for its inspectorial work. There is certainly no intention on the Government's part to limit the grant that they make to the HFEA.
Earl Howe: My Lords, is the Minister aware that the licence fees levied by the HFEA will go up from £200 to £6,000? We all understand why the costs of regulation have to be covered, but is there not a concern that because of the steepness of the rise, many institutions will not be able to afford the fees and the pioneering work in stem cell research and other areas may simply not be undertaken?
Lord Warner: My Lords, it has been a fairly fundamental point of principle, under this Government and previous governments, that those who are regulated pay the cost of regulation. I will certainly look into the particular issue the noble Earl has raised and will write to him.

Strategic Rail Authority: East Coast Main Line
3.3 p.m.
Lord Berkeley Lord Berkeley asked Her Majesty's Government:
Whether they will require the Strategic Rail Authority to comply with Cabinet Office guidelines on consultation on the new East Coast Main Line franchise.
Lord Davies of Oldham: My Lords, the stakeholder consultation document was issued on 7 May to statutory consultees in accordance with the Railways Act. The SRA has exercised its discretion to reduce the consultation process timetables. It is not a precedent for any future consultations. A wider-based consultation day was held earlier this month. There will be another opportunity for public input on key strategic issues affecting this route and its operators when the East Coast Main Line strategy is consulted upon later this year.
Lord Berkeley: My Lords, I am grateful to my noble friend for that Answer. Is he aware that the consultation document he referred to was confidential to those who received it? The Rail Passengers Council, which of course is the representative body of the travelling public, has referred to the,
"extraordinary position whereby we cannot contact our key stakeholders, which are the travelling public",
to get their reaction. Does my noble friend really think that this is the right way to go about consulting on a very major passenger service up the East Coast Main Line? Is it not extraordinary that the SRA will issue its

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strategy after it has apparently let the franchise? What is the hurry? Why cannot it start a 12-week public consultation now?
Lord Davies of Oldham: My Lords, this is a very important franchise. We are in the last year of the service by the existing franchisee, so there are time constraints. The issue has been one of accelerating the process but, as I indicated to my noble friend, this is not a precedent for future consultations. There are in place future opportunities for full consultation on this important franchise. I am pleased to report to the House that there are four bidders, each of which has excellent credentials, including the present franchisee.
Baroness Scott of Needham Market: My Lords, is the Minister aware that the current franchising arrangements have lost the confidence of both the industry and the passengers, who see the whole process characterised by lack of transparency and by delay? That is due, in part at least, to the activities of the Office of Fair Trading. Its most recent intervention has been to investigate the new Greater Anglia franchise, months after the franchise was awarded, and six weeks after Alistair Darling launched the new service from Liverpool Street?
Lord Davies of Oldham: My Lords, the noble Baroness is of course referring to another franchise, not the one which is the subject of the Question. I should like to reassure her that the issue with regard to the arrangements for the franchise in the Question was a matter of urgency and speed. The noble Baroness rightly indicated that there have been some concerns about delay. I take on board her point about the franchise to which she referred, but she will know that arrangements are already in hand on that front.

Business
Lord Grocott: My Lords, later today there will be a Statement on the European Council, repeated, with permission, by my noble friend the Leader of the House. It will be made at a convenient time after 4 p.m.
Christmas Day (Trading) Bill
Brought from the Commons; read a first time, and ordered to be printed.

Children Bill [H.L.]
3.8 p.m.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Clause 7 [Arrangements to safeguard and promote welfare]:
[Amendment No. 43 not moved.]
Lord Dholakia Lord Dholakia moved Amendment No. 44:
Page 5, line 45, at end insert—
"( ) the Youth Justice Board"
The noble Lord said: My Lords, Amendment No. 44 is grouped with Amendment No. 48A. The purpose of Amendment No. 44 is to amend Clause 7, which is designed to safeguard and promote welfare, so that it is supplemented by the addition of the words "the Youth Justice Board". For clarity, let me point out that Amendment No. 44 is in the name of the noble Baroness, Lady Stern, as well as mine.
Amendment No. 48A would create the same duty upon the Youth Justice Board as the duty conferred on other agencies under this clause, in relation to its statutory functions under the Crime and Disorder Act 1998 with regard to commissioning, purchasing and allocating placements in secure juvenile estate. The amendment would also ensure that decisions about the placement of children in custody are taken having regard to their needs for safeguarding and promoting their welfare.
Noble Lords may remember that, in Committee, amendments were laid by the noble Baroness, Lady Stern, and me to address the problem of the inappropriate placement of vulnerable children in prisons. The amendments would have placed a duty on courts to safeguard and promote the welfare of children and to ensure that children deemed to be vulnerable are not placed in Prison Service custody.
The debate itself and subsequent discussions with the Minister, the Children's Society and others have led us to the conclusion that, even if the courts were given new duties in this respect, they would have no control over the numbers, standards, management or availability of placements, with the result that children would still fail to get the appropriate placements. The responsibility sits squarely with the Youth Justice Board, and for that reason the amendments would include the board in the new duty in Clause 7.
The amendments also place an additional duty on the board to ensure that it makes appropriate placements having regard to the need to safeguard and promote welfare, and when children are placed inappropriately, to ensure that accurate records are kept of why the child is not placed in suitable accommodation and for how long the placement lasts. To speak of accommodation suggests that we are talking about providing housing for these children, but we should recognise that we are dealing with very vulnerable children and the risks inherent in sending them to prison.
I do not want to rehearse fully the background or arguments that were set out comprehensively in Committee, but it might assist the House if I set the amendments in context. Members of the House will be aware of my interest in the case of Joseph Scholes and his death in custody on 24 March 2002 when he was found hanged in his cell. Joseph's case highlights the

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current problem. He was clearly a very vulnerable young person with a history of self-harm and sexual abuse, yet he still found himself in Prison Service custody because of the lack of adequate placements in local authority secure accommodation that could have provided him with the care, supervision and more child-centred therapeutic regime that he desperately needed.
In 2002, the Government's Social Exclusion Unit reported that:
"Too many young people remain in custody when they need inpatient mental healthcare. In most areas there appears to be no alternative/diversionary provision, and no system for identifying or dealing with mental health problems".
That is coupled with the lack of statutory provision for placement elsewhere. Any young male aged 15 or over being sentenced to a detention and training order will almost certainly serve it in prison despite any assessment of his vulnerabilities under the Youth Justice Board's ASSET assessment profile. In Committee, the Minister promised to investigate how many children assessed as vulnerable have been placed in a Prison Service young offender institution, and I am grateful for that promise. A recent Answer to a Parliamentary Question by a Home Office Minister makes depressing reading. The number of vulnerable children either remanded or sentenced to Prison Service custody in 2003–04 was 3,337, which is just over the estimated total population of children in custody at any one time. It is a massive increase on the number for 2000–01, which was just 432.
Of course, even one vulnerable child in prison is one too many. Prison is no place for children and I urge the Government to take urgent steps to stop the rot and to resolve the situation. The more delay that there is, the more risk that other children will end up like Joseph. I expect that the Minister will tell us that the problem cannot be solved in the Bill, but I ask her to consider the facts carefully. My amendment recognises the unique position of the Youth Justice Board in making critical welfare decisions on a day-to-day basis for individual children right across England and Wales. There is currently no statutory requirement upon it with respect to the safeguarding or welfare of children. My amendment would rectify that and put the Youth Justice Board under the same duties as other operational and strategic bodies in Clause 7.
3.15 p.m.
The Youth Justice Board's critical role in commissioning and purchasing custodial placements for children in the youth justice system and for allocating each child remanded or sentenced to custody a place within the prison secure estate is recognised by the amendments. I believe that, over time, the duty would have a positive influence on the make-up of the secure juvenile estate. All those involved in the commissioning process would then be clear that complying with the duty is a priority for the Youth Justice Board that could not be disregarded or reprioritised. Other than that, there is a need to consider the placement options available to the Youth
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Justice Board which are currently extremely limited and I hope that the Minister will have something positive to say in that respect.
If the Minister is resistant to the amendments, will she explain to the House why the Youth Justice Board should not be included in the duties in Clause 7? In her response, will she assure the House that the Government recognise that there is a problem in the placement of vulnerable children in Prison Service accommodation; the Government agree that there is a need to take urgent action to address the problem, particularly in light of the numbers of children involved; the Government will further consider how the problem might be addressed in the Bill; and that any legislative change outside the Bill will have direct reference to the framework of the Children Bill and its measures to increase the safeguarding and promotion of children's welfare? I do not think that we are asking much. All we need is a positive assurance that these matters will be taken forward. I beg to move.
Lord Laming: My Lords, I speak in support of the amendment moved by the noble Lord, Lord Dholakia, who made such a powerful case that there is little that I could reasonably add. One of the strengths of the Green Paper consultation document, Every Child Matters, was its inclusiveness and concern for all young people. Surely, these young people are among the most vulnerable. The degree of self-harm and attempted suicide among this group of young people should cause us all concern. I hope that the Minister will give an encouraging response, at least in respect of links with the Youth Justice Board.
Lord Elton: My Lords, when I became Minister with responsibility for the Prison Service, I remember the great horror with which I discovered that a number of juveniles were kept in adult accommodation. We made strenuous efforts to bring that practice to an end and I am even more saddened to discover that this evil continues. It is essential that this statute is in place to limit it and bring it to an early conclusion. I will certainly support the noble Lord, Lord Dholakia.
Baroness Howe of Idlicote: My Lords, I will also be brief, because the noble Lord, Lord Dholakia, has expertly expressed the concerns. I very much hope that this problem can be dealt with sympathetically. The rise in the numbers now in prison is appalling. All that is being asked is that a record is kept during the period of custody and a report made. Something of that nature would certainly keep our minds on the subject to make certain that the situation is reviewed regularly.
Lord Chan: My Lords, I rise to support the amendment moved by the noble Lord, Lord Dholakia, particularly in relation to the mental health service for children and adolescents. I know that that issue falls within the National Health Service mental health framework. However, as prison health is now part of

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the National Health Service, will the Minister assure us that such services will also be made available for those unfortunate children in custody?
Baroness Walmsley: My Lords, I rise to assure the House that the noble Lord, Lord Dholakia, and the noble Baroness, Lady Stern, have the wholehearted support of these Benches in their amendment.
The Earl of Listowel: My Lords, I apologise for missing the opening statement of the noble Lord, Lord Dholakia, but it may be helpful if I draw the House's attention to a recent Parliamentary Question by Paul Goggins. Apparently, in 2000–01 some 50 children were identified as vulnerable and placed in young offender institutions. Most recently, that number has risen to about 350 or so. That is more than a six-fold increase in vulnerable young people being placed in young offender institutions. I hope that that is appropriate to what is being discussed and that I have not missed the point that was being made.
Baroness Ashton of Upholland: My Lords, many noble Lords have spoken, rightly, with real passion about this issue. I was extremely grateful to the noble Baroness, Lady Stern, for coming to see me to talk through these issues in detail. As noble Lords will know from Committee stage, this is not an area in which I have great expertise. Indeed, it is an area in which our two departments—the Home Office and the Department for Education and Skills—are collaborating and co-operating. It was extremely important to have that discussion.
I share with the noble Baroness and with the noble Lord, Lord Dholakia, a concern that the mother of Joseph Scholes, in particular, should feel that from that terrible tragedy something may come which would enable other children to be cared for more appropriately and ensure that such a tragedy never happens again. That should be the ambition of all of us for her sake. The noble Lord, Lord Dholakia, said in his closing remarks that he was looking for positive assurance. I shall try to give to him and to other noble Lords who have spoken that assurance about this area of policy.
We accept entirely the principle behind the amendment that young people in custody should be accommodated in the most appropriate setting, with full account taken of any issues that may make them particularly vulnerable. However, we are not persuaded that the Bill is the right way in which to achieve that. The noble Lord, Lord Dholakia, referred to the role give to the Youth Justice Board. We all recognise that, in fulfilling that obligation, the board has to consider many issues, including age, any special needs of the young person, closeness to home—which could be particularly important—and any risk of harm to the young person or to others. We believe, as I am sure do all noble Lords who have spoken, that good decisions will be made by taking account of all relevant factors.
My fear is that in taking decisions we would run the risk of seeing the issue discussed under the amendment in isolation. I am concerned that with Amendment No.
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48A that could be the case. For example, in the great majority of cases, closeness to home is very important and, indeed, conducive to a young person's welfare. But there may be other factors in particular cases which are important, and we want to ensure that those factors are taken into account. If there were a local authority secure children's home on the doorstep of a 17 year-old boy convicted of a serious offence of violence, but within that home there were vulnerable 12 and 13 year-olds, it might not be the most appropriate placement. Our consideration must be to ensure that all issues can be taken account of in determining not only the vulnerability of the young person—which, as noble Lords will know, is not a clear-cut issue—but also the vulnerability of other children and young people who may be affected.
We believe that it is important to ensure that secure accommodation is safe. The Bill already places a duty on young offender institutions and secure training centres—and, via local authorities, on local authority secure children's homes—to make arrangements for ensuring that their functions are discharged, having regard to the need to safeguard and promote the welfare of children. I do not believe that the amendments will add more to that. We have already captured a crucial part of what the noble Lord seeks.
What I can say to reassure the noble Lord is that not only have we captured the essence of that part of his concern but we are in constructive discussion with the Home Office, which is very keen to move forward on the matter. In the department's role of looking right across the agenda for children, we want to ensure that we do not do one thing in isolation but approach the matter appropriately, by looking across the needs of all our vulnerable children. Children within secure accommodation fall into a number of different categories.
I hope that I have reassured the noble Lord. It is my intention to continue discussing the matter with the noble Baroness, Lady Stern, and the noble Lord, and to keep both of them up to speed and up to date with what is happening in this area of policy. I can say categorically, however—and I was not in this position in Committee—that having talked to the noble Baroness, Lady Stern, and understood the issues, and having talked to colleagues in the Home Office and brought officials together, we shall make good progress on the matter and address the issues. In the spirit of wishing the matter to be taken forward appropriately, I hope that the noble Lord will withdraw the amendment.
Lord Dholakia: My Lords, I thank all noble Lords on all sides of the House for their support; I am most grateful to them. It is the least that we can do for vulnerable children.
I do not have much confidence in the way in which the Home Office deals with this matter. Following the coroner's request for a public inquiry into Joseph Scholes' death, I immediately wrote to the Home Office—in early May—and to this day I do not have an acknowledgement or a reply. That does not build much confidence in the promises that the Home Office

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is making in such matters. However, I shall discuss the Minister's response, which has been fairly positive, with the noble Baroness, Lady Stern. If need be, we shall return with the amendment on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Byford Baroness Byford moved Amendment No. 45:
Page 6, line 3, leave out from "discharged" to "the" in line 4 and insert "in a manner consistent with the objective of safeguarding and promoting"
The noble Baroness said: My Lords, in moving Amendment No. 45, I shall speak to Amendment No. 47 as well as Amendments Nos. 87 and 89, which contain the Welsh equivalents of the proposals.
We had a long debate in Committee on the issue of safeguarding and promoting. The amendments that dealt with safeguarding and promoting children's well-being attracted a number of speakers, all of whom clearly considered that in some way or another the existing wording in the Bill was not strong enough. The noble Baroness, Lady Walmsley, stressed the need to separate administration from practice and ensure that safeguards were strong enough to protect children, as opposed to the sort of theory which might he subject to a series of tick-box questions. The noble Baroness, Lady Stern, who is not in her place, referred to those who work away from the public eye and who need strong unambiguous law to lean on in taking decisions affecting the treatment of children and thereby their welfare.
The noble Baroness, Lady Barker, made a most telling point when she alluded to the gap between the perception of authorities concerned with the provision of services to the elderly and the appalling standards actually achieved. It is that balance between what is perceived and what is achieved that brings me back to this group of amendments.
The noble Earl, Lord Listowel, quoted the training given to staff working with children in secure training centres and pointed out how little of it actually equips them to deal with,
"very vulnerable, troubled and troubling children".—[Official Report, 20/5/04; col. 989.]
That was a point well made.
In her response the Minister seemed more concerned that safeguarding children might conflict with other duties of the agencies affected. I hope that I have not shorthanded her, but that is the impression that I got and I have reread her response again since. It was almost as though she felt that in many situations one can pursue only one course or another. She cited the conflict between the criminal system and the need to safeguard children's well-being where those convicted are parents. I would prefer to see it in terms that the parent has done wrong. In other words, the system demands punishment, but the system also demands that the needs of the affected child or children be given priority in determining how the prisoner will spend his or her time, and how visiting will be arranged and rehabilitation progressed.
Similarly, if agencies are compelled by law to prioritise children's well-being alongside their normal duties they will be more likely to succeed than if the duty of safeguarding is only something to which they must have regard. I am told of many walks of life in which a requirement to have regard to a particular set of circumstances means very little more than to discuss them at a meeting, agree that the arguments against are stronger and get on with ignoring them. That was expressed very clearly in Committee and concerned many noble Lords.
The Children's Society in its briefing highlighted its concerns about the issue. It felt that:
"Creating a duty of 'having regard to' means that an administrative test is applied to the undertaking of functions. It does not provide the clear legal framework for a positive test as to whether actions taken are consistent with safeguarding of children and the promotion of welfare".
It goes on to state:
"At the very least the Bill's provisions should provide that decisions and actions in the exercise of functions should not be detrimental to children's welfare and protection".
Indeed, those thoughts were also highlighted by other briefings that I have received, including briefing from the NHS Confederation, which stated:
"We also have similar concerns for the arrangement to safeguard and promote welfare in Clause 7. As the contracts are nationally negotiated there would need to be direction to the national negotiators to include this in the new contracts. Otherwise PCTs may not be able to comply with the direction to make local alterations. We are also unsure how this will be built into the contracts given that the GMS contract for GPs, for example, has already been signed".
I shall not go over the ground that we have already covered, but I hope that bringing in some more up-to-date information strengthens the argument.
Many noble Lords were concerned about this issue in Committee. I read what the Minister said very carefully and, coming down on the train this morning, I tried to make more of it. But I could not. I found that her answer did not allay my fears. I beg to move.
3.30 p.m.
Baroness Walmsley: My Lords, I shall not weary the House by repeating everything I said in Committee but I still support the noble Baroness, Lady Byford, and her amendment. I believe that the wording she has chosen is stronger and clearer about the objectives that people should have in mind when dealing with these issues. I shall not repeat the arguments but we still support her.
Earl Howe: My Lords, I shall speak to Amendment No. 49, which is grouped here. In Committee, I proposed that the Bill should contain a definition of what is meant by "safeguarding and promoting" the welfare of children to ensure that the full import of those two terms is fully understood.
The Minister will know that there is considerable concern about this among the voluntary agencies. If one does not have a clear idea of what safeguarding and promoting involves, or should involve, one is bound to get inconsistency of interpretation and therefore inconsistency of practice around the

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country. Precisely what activities are implicit in the word "safeguard" and what activities are presupposed by the word "promote"? That is the issue. For example, one important aspect of both safeguarding and promoting is partnership working in specific contexts.
The Minister said that the terms were widely understood, but then went on to say that guidance would be issued to set out the arrangements that agencies would need to put in place in order to implement these provisions. I thought that rather proved my point and it certainly bears out the representations I have received from the NSPCC and the NCB, among others, about the need for proper guidance in this area. I found the Minister's undertaking about guidance very reassuring and my amendment suggests that that undertaking might appropriately translate itself on to the face of the Bill.
I simply make a plea to the Minister that if she is faced with a decision on how to define and flesh out the word "safeguard" she should take her cue from the joint chief inspectors' report, which contains a very satisfactory and robust definition, rather than from the Framework for the Assessment of Children in Need and their Families 2000, which she referred to in Committee. As regards a definition of "promoting welfare", I would commend to her paragraph 1.17 of the assessment framework as the model on which to build. I hope I am not sounding too prescriptive, but I make both these recommendations advisedly.
Baroness Ashton of Upholland: My Lords, it is always a pleasure to receive recommendations. I always find them helpful, particularly from the noble Earl, and I am very grateful to him. Indeed, I shall go back and look at those issues again.
I start with a greater clarity than in Committee about what the noble Baroness, Lady Byford, is seeking to achieve. When we are debating some of the intricacies around legislation of this kind, I feel that we are in the same place but are simply arguing about whether the provision on the face of the Bill is the most appropriate measure and whether there are other means of achieving those ends.
The noble Baroness quite rightly reiterated what I said in Committee regarding the concern about agencies that have other responsibilities under criminal justice. I think that I gave an example in Committee of a case of a convicted parent where decisions would have to be taken in the criminal justice system. The noble Baroness did not necessarily see that as paramount and I understand her view that, in such circumstances, one might rightly be interested in arrangements for the children. However, our concern is that when one is looking to agencies to fulfil their obligations—and by agencies, we end up meaning people like us—we need clarity about where responsibilities ultimately lie.
When looking to people to carry out their functions, I still think that they must be clear about their primary function; but, in doing it, they should be mindful of the implications for an individual and his family. None the
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less, I stand by what I said earlier, that there is sometimes inconsistency if one tries to make two responsibilities of equal weight apply when trying to carry out functions. That is tricky in terms of how people would look at this.
As regards the most vulnerable children, I absolutely accept that all noble Lords participating in the Bill have constantly reminded us to focus in particular on the most vulnerable groups who need additional support. However, we should remind ourselves that there is already a very strong legislative framework that will sit alongside the Clause 7 and Clause 22 duties. I shall not spell out all the details but noble Lords will know about the role of local authorities under the Children Act, the duties of social services departments and local authority services, including education, housing and health services. I can confirm that the Secretary of State has the power to vary the GMS contract in response to new legislation. I think and hope that that addresses the particular issue.
The police have a legal duty to investigate criminal offences committed against children and to make sure that such investigations are carried out sensitively, thoroughly and professionally. The Children Act gives the police powers to take emergency action to protect children from suffering "significant harm".
So there are already a number of different ways in which, through existing legislation, we are seeking to ensure that children are safeguarded. We believe that what we have in Clause 7 and Clause 22 effectively builds upon that in the most appropriate way. There is a very strong and widely understood system for protecting the most vulnerable children. The report of noble Lord, Lord Laming, and the joint chief inspectors' report, which has been referred to, concluded that the legislative framework for protecting children is basically sound but that there are severe weaknesses in the way in which it is interpreted, resourced and implemented. I am sure that the noble Lord, Lord Laming, will correct me instantly if I am wrong. These are the problems that we seek to address not only through this legislation but also as set out in Every Child Matters and through the work that is going on across children's services to support them more effectively.
This legislation offers a framework. We hope that Clause 7 and Clause 22 add to the framework for safeguarding and promoting the welfare of children by ensuring that agencies take a more proactive approach in responding to the needs of children. The aim is not to compromise their ability to carry out their duties but to ensure that they consider and address the need to safeguard and promote the welfare of children. I hope that the noble Baroness will feel that she has had more information on this issue. We do not feel that it would be right to accept these amendments for the reasons that I have given about the nature of the work that agencies carry out and because we believe that the existing legislation, plus what we have within these two clauses, addresses the problem. As the noble Earl said, Amendment No. 49 allows the Secretary of State to issue guidance that will promote an understanding of the phrase "safeguard and promote the welfare of

1023
children". I have great sympathy with the amendment. It is right that we should ensure that the guidance issued to those agencies is clear about what it means by the phrase, "have regard to the need to safeguard and promote the welfare of children".
The noble Earl will know that that phrase is used in the Children Act 1989. Under Section 17, local authorities must "safeguard and promote the welfare" of children in need in their area. As I think the noble Earl said, the Government's Framework for the Assessment of Children in Need and their Families 2000 contains two elements: the duty to protect children from maltreatment and the duty to prevent impairment. It explains that those are two sides of the same coin. It states:
"Promoting welfare has a more positive, action centred approach … as well as ensuring they are growing up in circumstances consistent with the provision of safe and effective care".
More recently, the joint chief inspectors' report Safeguarding Children gave a description of what the chief inspectors thought safeguarding meant in practice. It entails all agencies working together, ensuring that the risk of harm to children's welfare is minimised and, where there are concerns about the welfare of a child, to take all appropriate action to address such concerns. I have paraphrased the point for the purposes of this debate but it is spelt out more fully in the report.
Our intention is to build on previous guidance in the guidance that is made under Clause 7(4) to set out the kinds of arrangements that agencies will need to put in place to have regard to the need to safeguard and promote the welfare of children. The purpose of our additional guidance is to ensure that those arrangements are in place and that we are very clear about what is expected. There are some good examples of where the definition is already in place. It has stood the test of time and I believe that it will continue to do so. The Secretary of State has the power to issue guidance, and I have indicated the type of guidance that it will be. I therefore hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Byford: My Lords, before the noble Baroness sits down, I wonder whether she will return to the points dealt with in Amendment No. 45. I am very disappointed with the reply. Will she say which words in the amendment are unacceptable? I have listened very carefully, but I still do not understand the Minister's reluctance.
Baroness Ashton of Upholland: My Lords, I am always at pains not to be reluctant in your Lordships' House. As I understand it and tried to outline, the amendment would not assist agencies in examining their functions when those functions are seen as not always in the best interests of the child and the child's welfare. As the noble Baroness rightly said, I have given an example of that. That is my understanding and I have checked to ensure that it is right. I see that the noble Baroness does not feel that that explanation
1024
works, but I do not really know what else I can say. As she knows, I am always willing to re-examine a point. I can write to her or discuss the point with her to see whether I can say more or she can push the point further.
My understanding is that the amendment would create an inappropriate inconsistency; in other words, it would make things difficult. However, if the noble Baroness feels that the amendment would achieve quite the opposite, I would be very happy to discuss that with her. She will have the opportunity to come back on it if she is dissatisfied with what I say. I hope that that gives her some comfort.
Baroness Byford: My Lords, I am very grateful to the Minister for that response. I was getting to the stage of thinking that we will have to divide on the point, as it is such a basic one. I will carefully read Hansard and have talks with her before the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 46 and 47 not moved.]
[Amendment No. 48 had been withdrawn from the Marshalled List.]
[Amendments Nos. 48A and 49 not moved.]
Clause 9 [Establishment of LSCBs]:
Earl Howe Earl Howe moved Amendment No. 50:
Page 7, line 28, at end insert—
"( ) The chairman of the Local Safeguarding Children Board shall be appointed by the children's services authority."
The noble Earl said: My Lords, I return to an issue I raised in Committee, which I did not feel we fully resolved; and that is the need to make sure that local safeguarding children boards are fully accountable to a children's services authority and fully bound in with the policies that the authority is pursuing.
When I spoke on this issue before, I took up the suggestion put forward by the noble Lord, Lord Laming, at Second Reading by proposing that the chairman of a LSCB should be the chief executive of a children's services authority. I did so because having the chief executive at the head of the table makes absolutely certain that the board cannot be some semidetached entity, merrily ploughing its own furrow, and that there is no possibility of a divergence of policy between it and the authority. It also sets an example for the grade of individual who sits around the board table. If the chief executive were in the chair it would be difficult for any board partner to send along someone of lowly status. It is in my view vital that these boards, which will be taking a strategic view of policy and procedures and monitoring activity, need to be populated by individuals of some standing and experience. Having the chief executive at the helm would, I think, ensure that that happened.
However, I do recognise that there are difficulties with this idea, one of the main ones being that the chief executive may simply not have enough hours in the day available to take on the role of chairman, important though that responsibility is. There is also a widespread feeling that there needs to be some

1025
flexibility in this area. I took note of the Minister's reservations, and I accept them because there is no doubt that not all local authorities are alike and that many want the freedom to choose how these boards are composed. One alternative, which would be to stipulate that the director of children's services should chair the board, would result in exactly the same problem, though this arrangement is certainly what many authorities currently have in mind.
At the very least there needs to be senior management commitment to the board. I think my main concern is that where there is a chair who is independent, this should happen only with the agreement of the children's services authority. I am distinctly nervous about the idea of an independent chairman, for the reasons I have already outlined, but I accept that in some area child protection committees having an independent chair has worked well. That is why my amendment is framed as it is. It is intended to ensure that the authority is fully bound in to the work of the board and that there is open accountability about the decision of who should chair it. But at the same time it allows for flexibility.
It would be helpful to have from the Minister an assurance that there will be guidance stating that it is expected that the director of children's services will be the chairman of most boards, unless there is a very good reason why not. I believe that that is what the Government have in mind; but it would certainly be valuable to have an explicit statement to that effect. I beg to move.
Lord Laming: My Lords, I am very grateful to the noble Earl for giving such thought to a matter which I regard as very important. Clause 9 is fairly forthright in the language it uses. It begins by stating:
"Each children's services authority … must establish a Local Safeguarding Children Board…A board established under this section must include"—
a whole series of people. These include:
"the chief officer of police…the governor of any secure training centre…the governor of any prison in the area",
and so on.
There is a serious issue of principle here concerning accountability. I believe that two aspects of this issue are of overriding importance. First, the director of children's services should be accountable to the board, and therefore should not chair the board. Secondly, one of the local authority's premier responsibilities is to safeguard the vulnerable children in its area. If it is not too onerous to require the chief officer of the police service or a governor of a prison to be present at the board, in my view it is certainly not too demanding that the chief executive of the local authority should be required to do so.
I have spent a large part of my professional life in local government and I can think of no reason why a chief executive of a local authority should not be required to fulfil this function. I am grateful to the noble Earl for giving such thought to the matter. I hope that the Minister can give some reassurance on this point.
Baroness Ashton of Upholland: My Lords, I am very grateful to the noble Earl, Lord Howe, for raising this issue. I hope to be able to make our intentions on this subject as clear as I possibly can, unlike on the previous amendment where I did not achieve that despite my best endeavours.
It is a function of the children's services authority to establish a local safeguarding children board. As is stated in Clause 9, the board partners must co-operate in its establishment. We believe it is implicit in this that establishing a board must include the appointment of a suitable chairman. Not to do so would be to fail to establish the board properly as it will clearly need a chair in order to operate effectively. We do not believe that the amendment is necessary but I shall explain that further.
I understand the concern of the noble Lord, Lord Laming. He has spoken with great passion about this matter in your Lordships' House and, indeed, to myself and officials previously. It is a question of making sure that the accountability lines are clear. As regards the director of children's services, we have made it clear that someone is required who takes responsibility for these services across a local authority and ensures that the lines of accountability extend to an appropriate member of the council and to the chief executive. However, we are reluctant to be prescriptive in saying that a certain person must be made chairman. Although the noble Lord, Lord Laming, referred to his experience in this area and the noble Earl, Lord Howe, talked of the scenario that one would expect to arise, if I may put it that way, we know of independent members of boards who do a fantastic job chairing those boards.
We are trying to focus our attention on accountability. The children's services authority will appoint the board and, therefore, the chair but we are not completely prescriptive about how that is taken forward. We can within—
Baroness Howarth of Breckland: My Lords, the Minister spoke about variations in the way in which these roles are performed and said that there are excellent independent chairs. I have a fair amount of experience in this field and know that within area review committees there is wide variation in the performance of chairs. Limited research has been carried out on this matter. I am concerned that we might accept this structure simply because anecdotally we know that there are good examples of the role that we are discussing. I should like us to try to find out what it is that makes boards work well and what elements make that difficult because we could select personality rather than structure. On what evidential basis should we allow this very general acceptance of the way in which these chairs will be appointed?
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Baroness. I am not talking about a general acceptance. I agree entirely with the noble Baroness as regards structures because they give a degree of certainty and one can evaluate them, whereas

1027
the cult of the personality is not one in which I have become embroiled as regards the kind of work that we are discussing. That would be deeply inappropriate.
It is critical to build on board structures that work effectively. First, one needs to make sure that individuals of the right level are involved in the boards. Subsection (4) of Clause 9 gives us the power to make regulations that can be used to ensure senior attendance. Clearly, there have to be people of the right level attending. Secondly, one needs to ensure that the accountability structure—that of the director of children's services to the council and that of each agency to the director of children's services—is absolutely clear, and that that forms part of the way in which we evaluate success. We need to be absolutely crystal clear about that. Thirdly, we need to ensure that the chief executive, in his function of overviewing all of the local authority's work, carries out that role appropriately.
I expect that in the majority of cases the director of children's services will perform the relevant function. The noble Lord, Lord Laming, said that the chief executive should fulfil the relevant function. I refer to effective safeguarding boards with senior people on them. An individual from a particular agency may be able to perform the role of chair extremely well. We are working with our colleagues in local government. We seek not to be so prescriptive that we do not allow them to ensure that their boards work well.
We need clear structures, a very clear level of involvement and very clear accountability through the director of children's services. We are discussing the person who chairs meetings. Noble Lords will know that fabulous chairmen exist who chair meetings well whereas others do not perform that function well. People attend meetings in part because there are clear outcomes, good agendas and so on. Noble Lords will know from their own experience that that can be a critical part of success. We should permit flexibility in that process.
We want to build on the successful arrangements deployed in the area child protection committees. It is important that we do not throw out the baby with the bath water. We need to ensure that we build on the successful structure of a good area child protection committee with the right kind of people involved in it. We need to build on that, not demolish it and start again.
We want to include flexibility in the guidance but the noble Baroness is absolutely right that we also need to be absolutely clear about the quality and the accountability of the people involved. We shall set that out clearly in the guidance. I hope that on that basis the noble Earl will consider that we have addressed the concerns that he raised. The guidance will be statutory. The chair will be appointed by the children's services authority. The views of other board partners will be taken into account. Flexibility is included in the arrangements.
Earl Howe: My Lords, this has been a very helpful debate. I am grateful in particular to the
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noble Lord, Lord Laming, for his remarks. Intellectually, I am still with him, but politically I recognise the need for flexibility in this area. As the noble Baroness rightly said, the key issue is accountability. I take comfort from what she said about what may appear in regulations and, indeed, statutory guidance on the subject.
If nothing else, the points that the noble Lord, Lord Laming, and I made on this subject have gone home. The debate has been useful from that perspective. With that it behoves me to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 51:
Page 7, line 36, at end insert—
"( ) a youth offending team for an area any part of which falls within the area of the authority;"
On Question, amendment agreed to.
[Amendment No. 52 not moved.]
Clause 10 [Functions and procedure of LSCBs]:
[Amendment No. 53 not moved.]
Clause 11 [Funding of LSCBs]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 54 and 55:
Page 9, line 1, at end insert—
"(1A) Any person or body specified in subsection (2) may provide staff, goods, services, accommodation or other resources for purposes connected with a Local Safeguarding Children Board established under section 9."
Page 9, line 2, leave out "subsection (1)" and insert "subsections (1) and (1A)"
On Question, amendments agreed to.
4 p.m.
Schedule 2 [Director of children's services: consequential amendments]:
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 56:
Page 36, line 29, at end insert—
"The Relevant Authorities (Standing Orders) Order 2001 (S.I. 2001/3384)
(1) The Relevant Authorities (Standing Orders) Order 2001 (S.I. 2001/3384) shall be amended as follows.
(2) The following shall be inserted in the appropriate place in paragraph 2 (interpretation)—
"director of children's services" means the officer appointed under section 13 of the Children Act 2004".
(3) After every occurrence of "the head of the authority's paid service" in the rest of the Order, there shall be inserted—
"( ) director of children's services"."
The noble Baroness said: My Lords, this is not so much an amendment as a suggestion. As an amendment, it is probably very badly drafted. However, the central point is that three local authority statutory officers are currently accorded certain rights and privileges under the relevant standing orders of 2001. The question is whether the director of children's services should not also have those rights and privileges.
As the rights are enshrined in secondary legislation, the Government could choose to give them to the director of children's services outside the Bill-making process. The three local authority officers currently mentioned in the order are: the head of the authority's paid service, usually known as the chief executive, although some authorities use other titles such as executive director; the monitoring officer; and the chief finance officer. Those officers have to be appointed by the full council, and can be dismissed only by the full council. They have to be employees of the council.
Given the high profile that the director of children's services has in driving forward the Government's Every Child Matters agenda, the suggestion that we put to the Government in the amendment is that they should safeguard and promote the status of that post by giving the post-holder the same rights and privileges as the chief executive. That greater security will enhance the post. We make that as a suggestion, and I shall be interested to hear the Minister's response. I beg to move.
Baroness Andrews: My Lords, we take every amendment as a welcome suggestion. This one is particularly good and we can endorse it. I assure the noble Baroness that the Bill already provides for what she wants in the appointment, dismissal and disciplinary procedures that currently apply to other chief officers. The 2001 regulations also apply to the director of children's services, so the amendment is redundant but a welcome suggestion nevertheless.
A few hazards would be introduced by the amendment, including some unwelcome inconsistencies in the treatment of the director of children's services and the position of other chief officers. He would have to be involved along with the chief executive in selecting a person to deal with all disciplinary matters. He would have to be appointed or dismissed by the whole authority, which would make him different from other chief officers. That would be undesirable, if not inappropriate. However, the burden of the amendment is perfectly sensible and reflected in the legislation.
Baroness Sharp of Guildford: My Lords, I am grateful to the Minister for her reply. She said that the director of children's services was already included in the order. Has the order been amended in that way since it was passed in 2001? Is my amendment totally redundant in that sense?
Baroness Andrews: My Lords, it would have always been the case.
Baroness Sharp of Guildford: My Lords, I therefore apologise to the House for tabling an unnecessary amendment. Nevertheless, it is an interesting point and worth our while having established it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Andrews: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

European Council
4.4 p.m.
The Lord President of the Council (Baroness Amos): My Lords, I would like to repeat a Statement made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"With permission, Mr Speaker, I shall make a Statement on the European Council which took place in Brussels on 17 and 18 June.
"At this Council, the EU—now of 25 nations, soon to be 28—agreed a new treaty for Europe which sets out for the first time, in one single treaty, the powers, rights and duties of the EU. I have placed a copy of the Presidency Conclusions in the Libraries of both Houses. I thank the Irish presidency, under the Taoiseach Bertie Ahern, for its skill in negotiating a successful conclusion. As the Taoiseach said, the Constitutional Treaty makes it clear that Europe is,
'not a super state; not a federal state but a group of nations'.
This treaty makes it plain, again for the first time in a European treaty, that the EU has only the competences conferred on it by member states and states expressly, also for the first time, that member states can withdraw from Europe should they want to.
"This treaty makes clear where the EU can and cannot act. It provides for qualified majority voting where we need it—for the single market, for reform of the common agricultural policy, for action against international crime and terrorism. It keeps unanimity for the most important decisions and, at our insistence, in particular for tax, social security, foreign policy, defence and decisions on the financing of the Union affecting the British budget contribution. It keeps our ability to opt out of measures affecting our laws on asylum and immigration, and extends that so that we cannot be obliged to co-operate on criminal law procedures where we do not want to do so.
"For the first time ever, a power for national parliaments is provided to scrutinise proposals from Brussels at the draft stage and to send them back if parliaments are not satisfied. It provides, through the route of enhanced co-operation, for a flexible Europe in which groups of countries can take action together within the framework of the European Union, provided that they do not damage the interests of others. This is a flexibility within the framework of law, not the free-for-all which some have advocated.
"Above all, the treaty provides for the reforms in the working of the EU necessary if it is not to fall into gridlock with 25 members. It reforms the

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system of the six-monthly rotating presidency to provide greater continuity and coherence in a Union of 25, and replaces it with a full-time chairman of the European Council who will serve for up to five years. This is crucial in placing the power to set Europe's agenda in the hands of Europe's intergovernmental body.
"The EU treaty includes, in the Charter of Fundamental Rights, the rights of the citizen under EU law. The charter expressly rules out establishing any new power or task for the European Union or any change in the powers of the European Union. In each area, the rights are expressly limited to those available under existing national law and practices and under existing Union law. So, for example, Article 28 of the charter says that workers and employers have the right to negotiate and conclude collective agreements at the appropriate levels, but only,
'in accordance with Union law and national laws and practices'.
In addition, the charter contains explanations for each article, making it clear, for example, that the,
'limits for the exercise of collective action, including strike action, come under national laws and practices, including the question of whether it may be carried out in parallel in several member states'.
The treaty requires those explanations to be given due regard by the courts.
"Some have also expressed concern at the references in the treaty to the primacy of EU law. In fact, primacy of EU law has existed since we joined the European Union and is there in the European Communities Act 1972. But, of course, European law takes precedence only where member states have agreed that Europe should have a competence. The idea that this is something new is nonsense. The treaty also completes and consolidates the existing treaties of the European Union. Some 75 per cent of it is a repetition of what is in earlier treaties.
"Among the many myths about the constitution that have been published over the past few months have been accusations that we would lose our rebate and our seat on the Security Council, that Brussels would seize control of our oil supplies, that the UK taxpayer would pay for other EU countries' pensions, that we would have to give up control of our Army to Brussels, be forced to join the euro or raise our taxes, have our foreign policy dictated by Brussels, and lose control of our borders.
"Now, the British people have before them the text of the treaty as agreed. It demolishes those myths.
"But the myths, and the propaganda which goes with them, are not really about the constitutional treaty. They are about whether Britain should or should not be a leading member of the European Union.
"The new Europe of 450 million people is a success for Britain. The new countries of Europe share our view that it should be run by sovereign nation states. They have joined the European Union
1032
for the stability, security and prosperity it provides; the same stability, security and prosperity that we have enjoyed as members of the European Union for the past 30 years.
"We are in the European Union for the single market and customs union it provides for our goods and services, for the extra 1.8 per cent of GDP that membership brings us every year and the 3.5 million jobs which depend on that single market. We are in it for the strength it gives us in trade negotiations with powerful countries like the United States and Japan. We are in it for its network of aid and trade relationships with China, India and the countries of Latin America, Africa and Asia, relationships which make an important contribution to international peace and security and development. Of course there are frustrations and compromises. But the European Union is the most successful way anyone has yet devised of managing the relations between European countries whose national rivalries had, until 60 years ago, only ever been settled in a series of bloody conflicts.
"Now, we not only manage those rivalries, we pool our combined strength for our economic advantage, for influence in the world and for peace and security. The power of the European Union has helped eight countries of eastern central Europe achieve democratic stability. It is transforming Turkey into a modern democratic state. It is helping achieve peace in the Balkans. Not a single government of a single nation, either those in Europe now or those waiting to join, opposed this treaty. All welcomed it. All want it to work. Many share the British view of Europe's future.
"All that is what the opponents of this treaty would put in jeopardy for the sake, not of any real British interest, but of a narrow nationalism which no British government have ever espoused or should ever espouse if they have the true interests of the British people at heart.
"In the end, the final say will be with the British people in a referendum. But in that debate, we will argue this Constitutional Treaty represents a success for the new Europe that is taking shape, is a success for Britain and today I commend it to the House".
My Lords, that concludes the Statement.
4.13 p.m.
Lord Strathclyde: My Lords, once again, I thank the Leader of the House for repeating the Statement. I was tempted to say, "Another week, another Statement". Last week the noble Baroness came to the House and underlined this Government's historic alignment with President George Bush in the world-wide war on terror. This week she has underlined the Government's historic alignment with the advocates of yet further EU integration.
Neither of those propositions is exactly ecstatically popular. As the noble Baroness knows, we think that the Prime Minister is right to back Mr Bush, but we have very serious doubts about what he did last weekend. Mr Blair has tied Labour's fortunes to a new

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EU constitution. It would be nice to think that he had a better eye for an EU constitution than he has shown for our poor old British constitution these past seven years. Looking at the communiqués coming out of Brussels. I do not see it.
Let us be clear. The issue will come down to a straight choice. Do we agree with this new EU constitution or not? Yes or no. However long the Prime Minister may want to put off the vote, there is no third way between "yes" or "no". The British people must resolve that question and the British people will decide whether what the Labour Party has done is what the British people wanted it to do. So, will the noble Baroness assure the House that, even if one other EU country votes against the constitution, the British people will still be given a chance to register their votes? When will that day come? Can it really be the case that Labour is plotting to put it off until 2006?
Surely the debate and the referendum should follow as soon as the text of the constitution is available. If Caxton could put the Bible into English centuries ago, how long will it take to translate the EU constitution? And if the referendum is put off until after the next election, why should we believe that Labour would grant one, if it won, any more than it allowed us a twice pledged referendum on the euro?
Whatever happened to the Prime Minister's cry of "let battle commence". His rhetoric is all conviction, but his every tactical duck and weave betrays the opposite. It is a strategy designed to encourage his opponents and frustrate his friends.
The latest catchphrase is about fighting myths with reality. We should agree with that. We want open, honest debate about a great national question. So, let us dispose of one myth right now. This is not a choice between staying in Europe or coming out. It is not the policy of this party to withdraw from Europe. Unlike the party opposite, or indeed the Prime Minister, it is not our policy today and it never has been in the past. To claim otherwise is not to confront myth with reality, it is to pervert reality with myth. It is a classic Downing Street tactic, but it will not wash. The lie says more about its perpetrators and how little they credit the intelligence of the British people than it says about us.
The millions of people who gave our party the largest backing of any in recent elections are not "little Englanders". The difficulties we have with the constitution that the Prime Minister has signed are genuine and significant. Of course, it is possible to point to aspects of the constitution that might of themselves be welcome. But it is the effect of the whole that has to be weighed, measured and, I regret, found wanting: a new state called Europe, with a legal personality and a legally binding constitution; a Charter of Fundamental Rights, carrying the risk of intervention by EU judges in yet more areas of British legislation, including over asylum and trade union rights; abandonment of 43 more areas of policy to decision by majority voting—including, crucially, criminal procedure; the creation of a new post of Foreign Minister; a new European public prosecutor and the risk of intervention in our very different legal
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system; failure to exclude policy from the constitution; and failure to achieve a real and unavoidable parliamentary lock on new European Commission legislation.
The Prime Minister's Statement says:
"This treaty makes clear where the EU can and cannot act".
Will the Leader of the House point to the passage in the treaty that says precisely where that is made clear? There is much more. Where is the bonfire of regulation? Where is the halt to the onward march of integration?
The presidency's conclusions signal legislation on financial services, on professional qualifications and social security co-ordination; common action on copyright and patents; initiatives in consumer protection legislation; measures on air quality, maritime law, biodiversity and climate change; urgent work on corporate governance, action on chemicals, directives on services and a strategy on sustainable development. We have even instructed the Commission to draw up plans for a European gender institute—as if the Gender Recognition Bill before our Parliament is not enough. I shall not read on, but that is just the summary of what has been agreed at the weekend.
Europe has brought so much that is good, so much that we should unite to defend and support. But when will Mr Blair and the Government hear what people all over Europe are now saying? It is time for a new approach, for co-operation not coercion and a Europe of "live and let live".
Brussels was a giant missed opportunity and a further step along an integrationist road that is no longer relevant in the 21st century. What we needed from the Government was a lot less posturing about red lines and a lot more action with the blue pencil. Of 275 amendments submitted by our Government, how many have been accepted? Just 27: scarcely a diplomatic success to have the shades of Canning and Castlereagh craning their necks down from Elysium.
I have three closing observations. First, on Turkey, I welcome what was said. We have long argued for meaningful engagement with Turkey and I hope it will be pursued with vigour by the British Government. Secondly, on the succession to Mr Prodi, what candidate does the United Kingdom now support? Finally, on Zimbabwe, I have read the Presidency Conclusions carefully, but I find no mention of Zimbabwe. I find quite rightly the Sudan and Congo, but not Zimbabwe. Last week the noble Baroness, Lady Amos, told us of the near half a million refugees now driven into exile by the Mugabe regime. She also said that she could do nothing about the spectacle of Gideon Gono, President Mugabe's moneybags, swanning around Britain, because he was not on the EU list. Is he on the EU list now? There is a massive human tragedy in southern Africa, so when will this Government stir to use their influence in the Security Council, in the Commonwealth and in the EU to bring Mr Mugabe down?
4.22 p.m.
Baroness Williams of Crosby: My Lords, I thank the Leader of the House for repeating the Statement. I also echo what she has said about the remarkable achievement of the Irish presidency, to which I think we are all deeply grateful. Ireland now has the difficult job of trying to obtain agreement on a President of the Council, and we wish it very well in attempting that.
The Prime Minister, in terms of what he was seeking, has done remarkably well. He has established a permanent president of the Council of Ministers, which means that the Council of Ministers will be considerably strengthened vis-à-vis the Commission. He has achieved the exclusion of taxation, foreign policy and defence issues from the European Union treaty. He has also achieved, from his point of view, quite remarkable new measures on the role of parliaments. One-third of parliaments can now insist upon any directive or regulation of the Commission being returned to it for further consideration if they do not like it.
Those are all considerable achievements. They are part of trying to make the new Europe workable, but from the point of view of these Benches they fall quite well short of what we would like to see. We believe that a strongly integrated foreign and defence policy would give greater weight to Europe in the world.
But just for a moment let us consider raising our game. Some people will remember the remark of the famous post-War Foreign Secretary Ernest Bevin, who said in 1945 that what he most regretted about Britain was what he called a "poverty of aspiration". Let us raise our aspirations.
First, this treaty is about making an enlarged Europe workable. It is high time to celebrate that enlarged Europe and not to nit-pick about it. It is a remarkable achievement by any standards. Secondly, we need to give due weight to the fact that the European Union, for all its faults—and it has many—has managed to make human rights a central criterion for the membership of the Union, not only in Turkey but in central and eastern Europe. In doing so it has promoted one of the values most important, I would have thought, to this country and indeed to the democracies of Europe as a whole. That influence is spreading far beyond Europe and importantly so. Thirdly, I thought that we were people who believed deeply in trying to go beyond the endless military conflicts of our world, and God knows we see enough around us at the present time. The European Union has pioneered a method which has put politics in the place of war and of conflict. I believe it is high time that we in this country recognised that remarkable achievement.
Let me conclude by saying that we all have a very uphill path to climb. We are faced with an incredible tissue of myths and lies which has been steadily promulgated over the past five years, particularly in parts of the media. It is very difficult, as Adlai Stevenson once said, for truth to catch up with a lie. He observed that a lie runs around the world before the truth pulls on its boots. It is high time that
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the truth pulled on its boots and that we began to see the argument in favour of a European Union which is strong, powerful and, above all, a force for peace, democracy and human rights in the world. We on these Benches will accept and support the constitution, and we believe that what really matters is to go even further than it does.
4.25 p.m.
Baroness Amos: My Lords, I thank the noble Lord, Lord Strathclyde, and the noble Baroness, Lady Williams, for their comments. I agree with the principles so clearly set out by the noble Baroness. I thank her for recognising that the Prime Minister and the whole team in Brussels at the weekend did extraordinarily well and came back with a package which is good not only for Britain but for Europe as a whole.
I also agree with her that we should be celebrating an enlarged Europe, recognising the fact that only 60 years ago we were a continent mired in conflict. It is a remarkable achievement. Using that experience and knowledge in the peace and security agenda, which has become so important in the way the EU is working across many parts of the world, is a great testament to that achievement.
I also agree with the noble Baroness's comments on human rights and their centrality as regards membership of the Union.
I felt that the noble Lord, Lord Strathclyde, was dealt a poor hand in terms of the comments he made. With respect to Britain's relationship to the United States and the European Union, yes, we want to see a Britain which is leading and strong in Europe and we want to see strong ties with our United States allies. The noble Lord clearly fears that his party could never deliver that leadership. It clearly has to follow where we lead.
On the referendum, the Prime Minister has made our position absolutely clear. A process must be gone through. The treaty needs to be formalised into a legal text, but it is not clear when that text will emerge. There will then be the parliamentary process of ratifying the document, followed by a referendum.
I cannot understand why, when all of us in this House talk about the importance of putting Parliament first and the importance of parliamentary debate, the noble Lord is now afraid of parliamentary debate. Perhaps he is afraid that it will inform the British public and begin to deal with the web of tissues and lies referred to by the noble Baroness, Lady Williams, so enabling them to make an informed decision in the referendum.
On a referendum on the euro, the noble Lord is well aware that the position on that has not changed. We have said—and the position remains the same—that when the economic conditions are right we will put that to the British people in a referendum.
On withdrawing from Europe, it is clear that the noble Lord's party wants to renegotiate existing membership. Not a single country in the European Union wants to do that and the leader of his party has been challenged on that many times. The noble Lord

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may have failed to notice that all countries must agree to get together to renegotiate a treaty. The noble Lord's party has absolutely no allies on that.
I am surprised that the noble Lord, Lord Strathclyde, is afraid of the word "constitution". It has come to my attention that even Kent County Council, that Tory heartland, has a constitution. The United Nations has a constitution. What is the problem with the European Union recognising that it needs to look at its procedures and the way it works, to consolidate its treaties and bring that together in one document which is being called a "constitution"?
For the very first time, national Parliaments will have a role in Commission legislation. It is absolutely clear from the document that the issues of defence, foreign policy and social security will have to be agreed by unanimity. There has been an extension of qualified majority voting in some areas—in fact, in a number of technical areas. The noble Lord raised the question of bureaucracy. I should have thought that he would welcome the development in that respect.
With regard to the amendment to the constitution, the noble Lord will know that we submitted a number of amendments to the treaty when it was in draft form. The draft treaty has changed substantially over the past year. This was a process of negotiation, and we have come out of the negotiations with all the things that we said were important to us.
With respect to the noble Lord's question about Zimbabwe, it is not our job to bring down Mugabe; it is for the people of Zimbabwe to do that. But we must recognise the humanitarian crisis in that country and deal with it.
My right honourable friend the Prime Minister has made it absolutely clear that he will engage in discussions with colleagues in the European Union about who is the best person to be President of the Commission. He has made it clear that he has never entered into that discussion publicly and does not intend to do so now.
Finally, the noble Lord, Lord Strathclyde, asked me where the constitution lays out the areas in which the Union can act and those in which member states can act. I suggest that the noble Lord looks at the headlines in Part I, Articles 11 to 16 and the detail in Part III. Paragraph 11.6 in Part III makes it clear that the scope for exercising the Union's competences shall be determined by the provision specific to each area in Part III. The noble Lord may wish to look at those sections, where it will be absolutely clear where the Union acts and where nation states act.
4.32 p.m.
Lord Tomlinson: My Lords, does my noble friend accept that the outcome of the European Council meeting was as favourable as it could be and that it was overwhelmingly not only in the national interest but in accordance with the express wishes of your Lordships' House, as set out in the various documents produced during the passage of the Convention on the Future of Europe?
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Does she further accept that it is now imperative that we begin as early as possible in the new Session of Parliament the process of parliamentary ratification of the new treaty so that, before they continue to make statements about it, everyone in this House can be quite clear about exactly what the treaty states? I believe that the noble Lord, Lord Strathclyde, entered into areas which were alleged to be part of the treaty but which, in fact, are not contained within it.
Does my noble friend further agree that, in order to achieve the fullest possible participation and informed decision-making in a referendum, it is imperative that the Government find an appropriate way to provide factual information to as wide a group of the public as possible so that we can have a proper public debate based on real information about the treaty and its contents rather than the contents that others have imagined?
Baroness Amos: My Lords, I totally agree with my noble friend. I cannot say what the timing of the process of parliamentary ratification will be. Obviously, we need to wait for the treaty to be formalised and it will then come to Parliament.
I absolutely endorse what my noble friend said with regard to the need to be clear about what the constitution says and the need for informed decision-making. I also agree that we need to inform the British public on a factual basis about what the constitution involves in terms of our rights as a nation state and our rights as part of the European Union.
Lord Maclennan of Rogart: My Lords, perhaps I may say how satisfactory it is to be able to underline my agreement with every word that the noble Baroness read out this afternoon and, further, to breathe a sigh of relief that this country has avoided the danger of isolation and has provided leadership in taking the European Union into a position where it can effectively make decisions not only for its own benefit but for that of the wider world.
Does the noble Baroness agree that the rampant Euro-scepticism to which certain Conservatives are now kow-towing risks obscuring the reality that Britain is at far less risk of having unwanted decisions imposed upon it by the European Union than it is by isolating itself from the potentiality of influencing those decisions for our own benefit and for the benefit of those whom we would seek to help effectively in the third countries?
Baroness Amos: My Lords, the noble Lord is quite right and I agree with his comments. It is important that we are not on the margins of this debate but that we are in the centre of, and leading, the debate and influencing the decisions which are taken. The noble Lord is also right that we need to ensure that we engage in a debate and a discussion with those who are peddling the myth and ensure that the debate is based on facts and reality. Here, we are dealing not only with some of our parliamentarians who hold a different view from that of the Government; we are also dealing with the press and other opinion formers who seek to

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move the debate into a different territory. They are dealing not with the facts and the positive aspects of our membership of the European Union but with underlying myths.
Lord Waddington: My Lords, did not the noble Baroness hear the Prime Minister say that the constitution protects our right to run our own foreign policy? Does she agree that for most people it seems absolutely obvious that we should maintain that right and inconceivable that we should lose it? But is not the difficulty here—I use this simply as an illustration—that what seems obvious to the noble Baroness and to me seems to be contradicted by the plain words of the treaty?
How can our right to run our own foreign policy not be adversely affected when the treaty creates an EU Foreign Minister who,
"shall conduct the Union's foreign and security policy",
and when we are obliged by the treaty to support that policy actively and unreservedly, in a spirit of loyalty and mutual solidarity, and when we are obliged by the treaty to refrain from any action contrary to the Union's interests? In those circumstances, if the words of the treaty to which the Prime Minister signed up are taken with their natural meaning, how on earth can anyone assert that our ability to run our own foreign policy is not adversely affected? If the noble Baroness is saying that, she is contradicting the plain words of the treaty.
Baroness Amos: My Lords, I remind the noble Lord that the common foreign and security policy and the text regarding the issue of loyalty are contained in the Maastricht Treaty, signed up to by John Major, Prime Minister of a Conservative government. In respect of the common foreign and security policy and the European Foreign Minister, the treaty will make the CFSP more effective and coherent by introducing a set of common objectives for the CFSP and the Union's wider external action. That issue was left open following Maastricht.
I also remind the noble Lord that two current jobs in the European Union—the external relations post and the Chris Patten post—will be brought together to create the European Foreign Minister post. At the moment, the presidency is able to speak at United Nations' meetings, but that will be substituted by the European Foreign Minister. The text to which the noble Lord objects so strongly was signed up to by Parliament under the Maastricht Treaty.
Lord Williamson of Horton: My Lords, as the Government are now on a steep uphill path to the top of mount referendum, will the Leader of the House agree with some positive advice from a veteran of various European treaties? The advice is, first, that the Government should explain to the public that, despite comments in the media and elsewhere, the European Union has always been for greater freedom—freedom for our citizens—exchange students and house-hunters, for example—to go where they wish in the
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Union; freedom for trade in a single market with a massive reduction in red tape compared with the situation that existed before; and freedom for capital exchanges. "Friends" may have ended on television, but "friends" continues to run in the European Union. My second piece of advice is to concentrate principally on part one of the Constitutional Treaty, which is very short and clear and contains almost all the significant changes of substance and presentation in the new treaty.
Baroness Amos: My Lords, the noble Lord is, of course, a veteran of negotiations at EU level. I am very happy to take his advice. He is absolutely right. We need to explain to the public exactly what the European Union stands for. His use of the term "freedom" is very important indeed. The noble Lord is also right about part one of the constitution and its clarity in setting out the areas that it addresses. It is important to recognise that the Constitutional Treaty is also about greater flexibility. Let us not forget that.
Lord Radice: My Lords, is my noble friend aware that the agreement of last weekend on the Constitutional Treaty is good for Britain and good for Europe? It is good for Britain and good for Europe because it prepares the European Union for a Europe of 25 and at the same time skilfully preserves a proper balance between the nation state and action at a European level. Is she also aware that colleagues on all sides of the House look forward to exploding the myths and misinterpretations that we heard about the Constitutional Treaty long before it was agreed and long before it was even in draft form? We look forward to putting the positive case about the treaty and about our membership of the European Union, a case that I predict will be supported by the British people.
Baroness Amos: My Lords, I totally agree with my noble friend. As a result of the decision that was taken on holding a referendum and as a result of the skilful negotiation conducted by my right honourable friend over the weekend, we can now move the debate forward and concentrate on the positive case and, as my noble friend said, on the proper balance between the nation state and action at European level. We can also focus on the fact that this is not only good for Britain, but also good for Europe and for Europe's role in the wider world.
Lord Taverne: My Lords—
Lord Lamont of Lerwick: My Lords—
Baroness Crawley: My Lords, we have plenty of time. There are several minutes left so I suggest that we hear from the Liberal Democrat Benches and then from the Conservative Benches.
Lord Taverne: My Lords, do the Government agree that it is quite extraordinary that almost unanimously the rest of the European press has declared the negotiations to be a victory for the British view of the

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European Union, while certain quarters now apparently declare that this is a further step towards a federal Europe? Do the Government accept that it is important that they should put boldly the positive case for Europe and that they should not shy away from the apparently difficult issues? Will they stress, for example, that majority voting in Europe has been overwhelmingly in the British interest; and that, where possible, Europe speaking with a single voice on foreign affairs is in the interests not only of Europe but also of this country? If the Government are not prepared to speak out clearly and with courage, it will be much more difficult to transform the somewhat parochial view of our national interests that now prevails in certain quarters.
Baroness Amos: My Lords, the noble Lord is quite right. The press across European countries—France, Spain and Germany—all herald what they see as a British victory in terms of getting the balance right between the nation state and action at a European level. Le Figaro, but one example, talked about the draft constitution sealing the victory of the nation states over the European super state.
I say to the noble Lord that my right honourable friend the Prime Minister and this Government have no intention of shying away from difficult issues. When one considers the action that we have taken, not just on the constitution but also on other areas of foreign policy, that has been made absolutely clear. Yesterday in an interview, the Prime Minister spoke of the need to lead the debate and to ensure that the British public understand that he was acting in the best interests of Britain.
Lord Lamont of Lerwick: My Lords, can the Leader of the House explain why, prior to last weekend, the Government stated that they were opposed to the concept of the public prosecutor, even if it were to be preceded by a unanimous decision? Such a post was stated to be unacceptable, even with the unanimity qualification. Why have the Government changed their mind?
Baroness Amos: My Lords, we saw no reason to create the post. We have ensured that under the treaty a public prosecutor could be created only by unanimity. That means that our consent would be required to create such a post. However, at the moment we see no reason to create such a post.
Lord Lea of Crondall: My Lords, is my noble friend aware that before the parliamentary procedure takes place there is a case for a White Paper setting out in more popular language what is in the constitution? Whatever side of the argument one takes, the constitution is not a document that one would put in every post office. Is there not a case for an explanation of the Constitutional Treaty in popular wording being provided around the country so that people can see what Parliament will debate on the ratification of the treaty?
Baroness Amos: My Lords, my noble friend is quite right to bring to our attention the need to ensure that
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the treaty is understood and put into day-to-day language. I am not sure that the best vehicle or route to achieve that is a White Paper, but I share the underlying point made by my noble friend about being positive on what is in the treaty so that people can relate to it and understand it.
Lord Howe of Aberavon: My Lords, is the Leader of the House aware—she may be too young to remember it—that the foundation of the search for a common foreign and security policy was laid in part three of the Single European Act in 1985? It was based on a draft treaty that was handed, in my presence, to Chancellor Kohl by my noble friend Lady Thatcher and the search has continued to this day. It is founded on a principle that I am sure will appeal to my noble friends, that we want to enhance Britain's influence around the world. If one applies Archimedes' principle,
"Give me whereon to stand and I will move the earth",
the place whereon this country should stand is at the heart of the European Union.
Will the Minister further accept that if that case is to be accepted, as it should be, the longer the referendum is postponed the greater the burden of responsibility upon the Prime Minister and his colleagues to argue that case vigorously and tenaciously? Meanwhile, will she do everything possible to secure a president to the Commission who has the driving energy and integrity to tighten the administration of the Commission and to implement the urgent Lisbon agenda for economic liberalism to be applied not just in this country but throughout the European Union?
Baroness Amos: My Lords, I certainly hope, in light of the wise words from the noble and learned Lord, Lord Howe, that we will be able to argue that case vigorously and tenaciously together. We need to work on this across party lines in the interests of the British people. I say to the noble and learned Lord that I am not too young to remember the 1985 Single European Act, but my memory, I have to say, is not as good as that of the noble and learned Lord. I thank him very much for reminding us.
Lord Inglewood: My Lords, in her Statement in the context of the European Charter of Fundamental Rights, the Leader of the House said that the treaty requires those explanatory statements to be given due regard by the courts. In consideration of an express provision which shows incompatibility between the Charter of Fundamental Rights and the wording of the text itself, what, if any, relevance has the charter?
Baroness Amos: My Lords, I will have to write to the noble Lord on that. My understanding is that the charter is enforceable in British courts when it interacts with EU law, but it does not give the European Union any wider powers. I should like to go back and check the detail and write to the noble Lord if I can amplify the matter in any way.
Lord Elton: My Lords, will the noble Baroness give further thought to the very good suggestion of the

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noble Lord, Lord Lea of Crondall, about a White Paper? The prospect is of proceeding by other means with campaigning organisations expressing their slanted views of the various issues. For those of us who stand in the middle, it will be very helpful to have something which has some evidence of impartiality.
In the same vein, does the noble Baroness realise that the great majority of the public and a large number of Members of this House subsist for their views on these negotiations on broad assertions made by one side and broad denials made by the other? Will she assure us that in the debates on the Bill that will become the Act of ratification there will be an opportunity to go through the constitution more or less line by line?
Baroness Amos: My Lords, I totally take the point being made by the noble Lord about the need for impartiality. Having looked in detail at the press over the weekend, I recognise the point made about broad assertions being made by our political commentators.
On the issue of how we discuss the Bill and the treaty, we will do that in the same way as in the past when we have debated other treaties. I am sure that when we reach that point this House will make its own decisions about the best way of doing so.

Children Bill [H.L.]
4.54 p.m.
Further consideration of amendments on Report resumed.
Earl Howe Earl Howe moved Amendment No. 57:
After Clause 14, insert the following new clause—
"SINGLE CHILDREN'S SERVICES PLAN
Each children's services authority shall produce a single local children's plan setting out how the authority and relevant partners and the Local Safeguarding Children Board propose to fulfil their functions relating to improving the well-being of children in the authority's area, including their educational development, and safeguarding and promoting their welfare."
The noble Earl said: My Lords, in moving Amendment No. 57, I return to a proposal I made in Committee that the Bill should contain a requirement for every children's services authority to produce an overarching local children's plan.
Having a single plan of this kind is important. If we believe in the delivery of integrated services, which we do, that delivery will be immeasurably buttressed by planning for them in a co-ordinated way. It would force partners to prioritise and make decisions about how best to promote the well-being of children. One spin-off would be that the public sector would be relieved of the need to have individual statutory plans covering the various elements of service delivery. Of course, it would still be possible to develop more specific plans if that were thought necessary.
The Minister was good enough to say that she was sympathetic to the intentions of the amendment and that the Government were in the process of talking to
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partners about how to achieve the transition from a single education plan to a whole children's agenda plan. However, she felt that more time was needed to consult and that in any event the introduction of a single plan should be accompanied by the lifting of the existing planning arrangements. I understand that entirely. I have not attempted in my amendment to repeal any of the existing arrangements and I agree that that would need to be done if it were accepted.
However, I am not sure that I found the Minister's arguments for resisting the amendment all that convincing. If the Government believe that my amendment is in principle a good idea and they are working towards the objective that is set out, then surely something along these lines should be in the Bill? It is open to the Government to bring different parts of the Bill into force at different times, so the provision would not need to bite immediately.
I wonder whether the Minister could reflect further on this, because it seems to me that the Bill presents a golden opportunity for setting out the direction in which we want to go, over the medium as well as the short term, in the way that children's services are planned and delivered. I beg to move.
Lord Laming: My Lords, I support the thrust of the amendment as set out by the noble Earl. It seems to me that one of the tests of these new arrangements is how well the local services actually look at the needs and well-being of all children in their area. In recognising that each of the key services has a unique contribution to make to achieving that goal, one of the disciplines that we should consider very carefully imposing upon them is the requirement to produce such a plan. It is against that plan that their achievements, or lack of achievements, can be measured.
Baroness Andrews: My Lords, it is a pleasure to respond to this amendment. It is interesting how over the years we have moved, not least under the direction of the noble Lord, Lord Laming, to seeing children not as a bundle of problems but as young people who deserve to be treated as individuals and who need a coherent approach to all the services they require for their potential and aspirations as well as for their needs. We have every sympathy with the amendment, which would require the children's services authority to have a statutory plan for children's services. Coherent and joined-up planning is clearly essential to the well-being of children.
In Committee, we debated a similar amendment. I told your Lordships with conviction that we wanted to move forward with planning for children's services and that we were considering how best to do so. The current position, as I said, is that planning for education and social services for children is largely separate. In education, we are in the process of introducing a single education plan. Social services departments are required to have a children's services plan for children in need. We are very conscious of the need to move to a more unified position, taking into account planning across the whole agenda.

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The Bill repeals the requirement for a children's services plan because the provision specifically relates to children in need rather than to all children. I am delighted to be able to say that we have now also decided to introduce a requirement that local authorities have a statutory plan for children and young people which will include both education and social services as a minimum. That means that we will not be proceeding with a draft regulatory reform order, which was to have introduced the single education plan.
The only exception to the requirement is likely to be for those authorities given the freedom in 2002 from producing plans by virtue of their excellent performance and star rating for education and comprehensive performance assessments. That is well established and makes perfect sense because we know that those authorities with an excellent record are already thinking and acting in terms of planning strategically across the children's agenda. They are very much at the leading edge so we expect them to be in the forefront of those developments.
So at the same time as legislating for a plan for children and young people, we need to lift requirements for four statutory education plans that are linked, which we were planning to do under the draft regulatory reform order which would have introduced the single education plan. Those are the behaviour support plan, the early years development and childcare plan, the education development plan and the school organisation plan. As the noble Lord said, we have begun to share our thinking with local authorities and voluntary sector partners. It is gratifying to note that their response has been so warm. They see that as a positive proposal and have pledged their support as we take the next steps and see the children's agenda as holistic.
5 p.m.
However, we need time. Having agreed the principle, this is complex stuff and needs time and careful thought about both the scope and timing of the children and young persons' plan. I will ensure that noble Lords are made aware of how we intend to proceed now that we have made the decision. Of course, it would be possible to achieve those purposes via a government amendment to the Bill in another place and we are considering that possibility.
So I hope that noble Lords accept that we agree on this issue and see a clear way forward. We have made progress and I hope that the noble Earl will feel able to withdraw his amendment.
Earl Howe: My Lords, what can I say, except how pleased I am that the Government have made such progress? I am grateful to the noble Baroness for explaining in detail the thinking behind recent deliberations and consultations. What she said certainly meets the point that I sought to convey. I am very pleased to hear that the Government are considering tabling an amendment in another place. I hope that they take this opportunity to do that, because the Bill is a golden opportunity. I reiterate my
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gratitude to the noble Baroness for giving me that extremely good news this afternoon. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Walmsley Baroness Walmsley moved Amendment No. 58:
After Clause 14, insert the following new clause—
"PERSONAL SERVICE CO-ORDINATOR
(1) A children's services authority shall, where it considers appropriate for a particular child, designate a person to act as a personal service co-ordinator for that child.
(2) The function of the personal service co-ordinator will be to act as a lead worker to co-ordinate what is done by each person or body, for the purposes of safeguarding and promoting the welfare of the individual child, and to ensure that the appropriate service is delivered.
(3) The personal service co-ordinator can be any appropriate officer of the children's services authority or its partners, or any person the authority deems appropriate."
The noble Baroness said: My Lords, I trust that this amendment will receive a similar response from the Government as another good idea.
The rationale for the amendment is that effective co-ordination and exchange of information about a child between professionals simply will not happen spontaneously, even with a central database, as provided for by Clause 8. Someone must be responsible for it; I know that that course of thinking is what the Government have in mind. Thirty years of inquiries into child protection failures have shown lack of co-ordination to be the central failing of the system in case after case.
Someone must get to know the child. At the point of delivery to the user, there should be a human being and a human relationship—a relationship of trust, to cite the Minister on a previous occasion—between the service provider and the child and its carers. That will help to ensure that the service provided is really appropriate to the child. No single professional ever got to know Victoria Climbié that emerged from the report of the noble Lord, Lord Laming, who is in his place.
When introducing the Bill, the noble Baroness, Lady Ashton, said that there would be reform of working practices, including the use of lead professionals, but that that would be done outside legislation. That sidelines what ought to be a crucial reform within the Bill. Instead of placing it at the core of the new system, it is perhaps to be done by guidelines—I am not quite sure; perhaps the Minister can tell us.
The Bill's proposals, such as the Children's Commissioner and local directors of children's services, partial mergers of agencies, a new database and a reformed inspection regime, do not directly address the lack of individual accountability for decisions about a particular child. It is not clear how those complex reorganisations will help the frontline deliverer of the service. That is why the amendment would place an identifiable human being in the lead position for each child, where the children services authority considers it appropriate, as the amendment provides. That is an appropriate caveat to include in the amendment because

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that is not needed for most children, but for some it is an approach that deserves careful consideration. I beg to move.
Baroness Andrews: My Lords, it is such a good idea that I can tell the noble Baroness that it is in the Green Paper. She made an excellent and eloquent case for that personal relationship. Perhaps I may explain in a little detail what we intend to do and how far we have reached in our thinking. That is one of the most positive and exciting parts of the new arrangement.
The role of the personal service co-ordinator—the noble Baroness is right to place the emphasis on co-ordination—is reflected in Every Child Matters with reference to the need for a lead professional. That lead professional is for every child who is in contact with more than one specialist agency. In that context, in view of our debates on Clause 8 and the need to share information, and so on, it is important to build in a personal and consistent relationship. So that is clearly already part of our forward thinking for the organisation of children's services. Some very good officials are considering how best to take that forward in operative terms.
By lead professional, we mean a professional responsible at a minimum for ensuring that all those working with a particular child are sharing information effectively; that there is a co-ordinated approach to meeting the child's needs; and that there are regular reviews of the effectiveness of that approach. So co-ordination, follow-through and monitoring is involved, undertaken by one consistent person. Where they have the appropriate skills and knowledge, they may also be expected to carry out case work themselves; we are not saying that case workers and lead professionals are exclusive and different.
The role of that professional has been designed to ensure that those children with additional support needs—that is important—and those children who are assessed under the common assessment framework as having complex needs requiring more specialist support but who do not currently meet the threshold for statutory intervention under Section 47 of the Children Act—those children who fall in the gap between a general assessment under Section 17 and the child protection assessment in Section 47—will now have access to a case management approach to meeting their needs with a responsible professional in charge. Currently, there is no framework to ensure an integrated approach to meeting the needs of children who fall below the formal child protection threshold. Those who work in the services will be pleased that we are filling that gap in that practical way.
The department has been working closely with several local authority areas that are being funded to test some models for that integrated support framework for children and their families. We are considering what practical ideas are emerging and how we can universalise them and tap into and develop best practice. At this stage, our thinking is that the lead professional function may emerge from and become a more formal part of the work of such people as
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educational welfare officers, social workers, family workers, learning mentors and Connexions personal advisers.
We intend to produce strong and specific guidance on the role of and best practice for the lead professional. The aim of that guidance will be to enable and encourage effective implementation of what we believe to be the most suitable way to ensure that those children with the need for additional support services gain access to an integrated service. That guidance will be based on the substantial evidence emerging from those trailblazing areas and will also draw on the extensive consultation for which we are planning.
My second reason for being unable to accept the amendment is that it is technically unnecessary. Children's services authorities already have the general powers that they need to appoint such lead professionals. They do not need new powers to do that. That will also be covered in the guidance, which will obviously be issued before the policy is rolled out. It will be facilitated by the development of the common assessment framework, on which we are working very hard.
The third difficulty, which I think the noble Baroness will accept, is that we do not want to create a single organisational model but one which is able to respond to the situation of individual service authorities and their populations. We do not want a single model to run across all authorities on a legislative level. We must give local authorities the opportunity to interpret guidance in line with their needs and be flexible and adaptable in that regard.
I recognise that subsection (1) of the proposed new clause recognises the need for flexibility by stating that it should be provided where appropriate. However, it would have the perverse effect of providing a loophole, which would ensure that the amendment would have more weight than guidance because it would allow people to opt out. The guidance is intended to address the issue in more detail.
I have given the noble Baroness three very good reasons for withdrawing her amendment, but I hope that she will do so on the understanding that we are very engaged with the process and want to see all the ideals that she has set out realised in practice.
Baroness Warnock: My Lords, before the noble Baroness sits down, perhaps I may seek clarification. Would it be envisaged that such a named person—which seems an absolutely excellent idea—should have a right of entry into the household of the child for whom he or she was responsible?
Baroness Andrews: My Lords, I cannot answer that question at present. It is a co-ordinating post, so the person would be responsible for ensuring that the other people involved in delivering services to the young person did their job properly. If those people had rights of entry, the co-ordinator would ensure that they were enforced. We do not know whether they would have in their job description any additional

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powers to secure that or anything else, but it is unlikely. We must wait to see how it will be worked out in practice and in the guidance.
Baroness Walmsley: My Lords, I thank the Minister for her response. It was because I was impressed by this idea in Every Child Matters that I was so surprised not to see it in the Bill. It is a central plank of the Government's thinking about the matter and the role of accountability and co-ordination. I was also most impressed by the co-ordination role described by the trailblazing authorities when they came to your Lordships' House to make their presentations. I have to say that this is clearly working without the benefit of Clause 8, and with the benefit of quite a lot of money.
However, I shall certainly look with great interest at the guidance when it comes in. I hope that it is tight enough to ensure that every child who needs the services of such a co-ordinator has them. It would be nice to feel that the resources for such people would be forthcoming, but we will have to wait and see. I am delighted that the noble Baroness and I appear to be thinking along the same lines in our admiration for the idea expressed in Every Child Matters. It is now a matter of seeing how it is implemented. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Lord Lyell): My Lords, we come to Amendment No. 59. If Amendment No. 62 were agreed to, I would not be able to call Amendments Nos. 62A to 64A.
5.15 p.m.
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 59:
Before Clause 15, insert the following new clause—
"CHILDREN'S SERVICES INSPECTORATE
There shall be a body corporate called the Children's Services Inspectorate, the chief officer of which shall be known as the Chief Inspector of Children's Services and which shall otherwise be constituted in such manner and have such functions in addition to those conferred upon it by section 16 as the Secretary of State may by regulations prescribe."
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 61A, 62A, 63, 63A and 64A.
This group of amendments is probing, but the amendments relate to two slightly different issues. Amendments Nos. 59, 61A, 62A and 64A all suggest the substitution of a chief inspector for children's services in lieu of Her Majesty's Chief Inspector of Schools. Clauses 15 and 16 make it clear that, while a whole range of agencies, including the Commission for Social Care Inspection, are to be involved in the joint area reviews, the co-ordinator of the reviews is to be the Chief Inspector of Schools. Clause 16 requires that he draw up the framework for inspection.
In the briefings that we all received before Second Reading, quite a number of doubts were raised about to what extent Her Majesty's Chief Inspector of Schools should be given that role and whether his staff
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in Ofsted really had the right background, knowledge and experience to take it on. This is particularly important given the new role that the Government now seem to envisage for Ofsted, which is narrower in relation to schools. Can someone with a largely educational background really understand the social services framework and the issues involved?
In that regard, I was surprised that more amendments on inspection were not tabled in Committee. As there were no amendments on the issue, we did not get the chance to discuss the Government's intentions in regard to how they see the area reviews and the inspection framework working with all the different agencies and organisations listed in Clause 15(5), and how it is envisaged that Her Majesty's Chief Inspector of Schools will set about drawing up a comprehensive framework of inspection. Amendment No. 59 is tabled as a probing measure because we would like to hear a little more about how it is proposed to set about all these tasks.
Amendments Nos. 63 and 63A are different because they take it as given that there will be an area review mechanism and raise two further questions regarding the mechanism. The aim of Amendment No. 63 is that the reviews should be conducted only after the framework envisaged in Clause 16(7) has been agreed. Therefore we would like to know more about how that framework might be developed. It is reasonable to ask that it should be in place before the area reviews take place.
Amendment No. 63A questions the timing of the reviews. As noble Lords may know, under the current Ofsted framework for area reviews of local educational authorities, the authorities are inspected over a four-year period. Amendment No. 63A would ensure that the inspectorate, while accepting the four-year cycle, reported annually to the Secretary of State. The current Ofsted LEA inspection regime aims for,
"sharper, shorter inspections to assist LEAs in their task of supporting schools"
and to ensure that the level of inspection will be,
"commensurate with the local authority's performance, needs and plans, as indicated by the Comprehensive Performance Assessment (CPA) of its education services".
The number of days allocated for inspection fieldwork is determined by a formula based on the comprehensive performance assessment education scores and the overall grade for effectiveness given in the LEA's previous inspection. LEAs with the highest comprehensive performance assessment scores and with a good overall grade will be allocated "substantially less time" for inspection fieldwork.
For the highest performance LEAs, fieldwork could range from 20 to 30 inspector days. For weaker LEAs, inspection fieldwork could be allocated 45 days or even more. The remaining LEAs would receive inspections of between 30 and 45 days. Those local authorities graded "excellent" under the CPA get an inspection holiday, permitted under the Government's new freedoms and flexibilities for local government.
We ask the Government to tell us whether the variations in CPA achievement will be reflected in the new inspection regime for children's services; how far

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those proposals will have an impact down the line—for example, on schools—how far the framework under Clause 16(7) is to be developed and drawn up; and how far it will be applied. I beg to move.
Baroness Howarth of Breckland: My Lords, I have been wrong-footed on this probing amendment as the noble Baroness has made the case well against it. Nevertheless, I will make the points that I would have made if she had made the speech that I thought she might have made, simply to underline the issues that I feel are important.
I was deeply concerned about the suggestion that there should be one children's inspectorate. As noble Lords will know, we already have two inspection bodies, Ofsted and CSCI, which are responsible for the inspection of children's services. These two bodies bring experience and expertise that are invaluable in their respective fields of education and social care. Clauses 15 to 18 set out provisions for joint area reviews and inspection frameworks between the inspectorates, building on their expertise and developing proportionate inspections. Clause 17 sets out a duty on those in inspection bodies to co-operate. I know that CSCI and Ofsted have already developed proposals in this regard.
However, as was clearly outlined by the noble Baroness in the last part of her speech, these are very much linked to the education elements of inspection. I am concerned about the welfare aspects of inspection. Long experience has taught me that if education issues come to the fore it is seen as a political priority, often at the expense of children's social care. It is crucial that children's work has focus and emphasis. Far from improving this, a single inspectorate would be detrimental.
It would also cause further instability in the sector. I do not know who is pressing for this amendment—I gather no-one, now that I have heard that it is a probing amendment—but I know from having spoken to numerous people, providers, users and inspectors in social care, that yet another regime that inflicts new methodologies and ways of working would destabilise what is happening.
I emphasise that it is not only for boarding schools that a framework is being put together under the lead of Ofsted—whatever view one might have about that—but for foster care family centres, children's homes and adoption agencies, all with their own specialisms which crucially need to be developed in CSCI.
I was a member of the National Care Standards Commission when, 17 days after its inception, I was told that it was going to be CSCI. I worked for two years with that instability. I beg your Lordships not to re-inflict that in any form on the sector, which at the moment is developing extremely well.
Baroness Byford: My Lords, I rise to speak to Amendments Nos. 62 and 64, which are in this group. Again, they are very much probing amendments to seek clarification. With regard to Amendment No. 62,
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if the wording is to be taken to mean that the "arrangements" are simply the procedure by which the reviews are to be carried out, we have no objection, but I need that to be clarified. However, there is an implication in the Bill that the role of the chief inspector will be much stronger than that, and again I seek clarification.
Once again, the major problem is that there is a disparate body of people involved, and we are not satisfied that the Bill will establish a clear line of command. The chief inspector may be expected to command support, if not obedience, from those who work in education, except that he is the sole representative of the child and youth education listed. He has, perhaps, fairly strong ties to social services and the police, but where is his knowledge or understanding of the rest of his functions to be drawn from? Indeed, the noble Baroness, lady Howarth, was right to ask about the social care side. That obviously needs to be looked at.
Some of those working in the individual authorities charged with the provision of children's services are employed on contracts that have no reference to the type of activity envisaged by the Bill. Do the Government anticipate that they will provide their time and input in effect for free, and in accordance with the timetable set out by the chief inspector of schools? How do the Government expect a review to work? It may well follow the lines of existing reviews, but I would like clarification of that. Will the Minister address the timetable that is envisaged—that is, the frequency, the time allowed to set up the review, the time to carry out the review, and the time allowed for the report to be published following the review? It is not clear, but it may well be that this is tied up with other existing Acts or processes. Who will pay for the undoubted clerical, administrative and use of resources costs involved?
Finally on this amendment, will the Minister assure the House that the senior people listed here—several of them are in groups listed between paragraphs (a) and (i)—will have some form of indemnity to protect them from censure? For example, the chief inspector is listed as literally the "chief inspector". I presume that means one individual person. Will he have some form of indemnity to protect him from censure should the duties under this section interfere with other duties that he might have to undertake as a chief constable? It is not clear where the overlap does or does not occur. These are fairly minor points, but I would be glad of some clarification.
With regard to Amendment No. 64, I understand that the reviews will be carried out by a combination of designated job-holders and responsible bodies. In theory at least, it would be possible to have the Chief Inspector of Constabulary working with a social care inspector. Is the former senior to the latter, or are they all equal? If these reviews are to have value, they must be properly organised and run. They will need high-quality administrative and clerical support. Each review must be clearly staffed with the lead person identified by name and not by department or function,

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or not notified at all. A timetable should be laid down. I apologise to the Minister that there are quite a few questions, but I was not here for Committee stage.
Lord Laming: My Lords, I contribute to this debate with some diffidence, partly because the noble Baroness, Lady Sharp, knows a great deal more about education and the working of Ofsted than I will ever know. In commenting on this amendment I need to declare two interests. The first is that I shall be quoting from the Victoria Climbié report. Noble Lords will recall that one of the firm conclusions reached in that inquiry was that each of the statutory services has a separate and distinctive contribution to make to the wellbeing and safeguarding of children. It is not possible to adequately provide that framework if any one of those services fails to carry out its particular responsibilities.
Clause 7 is one of the great achievements of the Bill because it places a duty of care on each one of the key services. That being so, it seems clear that the Government's inspectorates and the Audit Commission have a contribution to make that needs to mirror those functions of these key services. I declare an interest in that Members of your Lordships' House will probably know that the 10 inspectorates have produced a discussion document on this, which they have all signed up to. If there is anything good in this, I claim no credit for it, although I admit that I played a small part in it.
It is important to be clear what the inspectorates are doing to respond to the challenge that the Government have placed on them. Each inspectorate will continue to fulfil its distinctive core functions. In so doing, it will amass a huge amount of data relating to the wellbeing of children, both specifically and generally. In discussion, it seemed to the inspectorates that it would be helpful if that data could be brought together to produce a more comprehensive picture of children's needs and the way in which those needs are being met, and for the inspectorates to produce a protocol whereby collectively they could look at the way in which the co-ordinating machinery, as established by the Bill, is working for the benefit of children.
5.30 p.m.
Therefore, in addition to their everyday responsibilities—to put it rather crudely—the inspectorates would produce a protocol whereby they could collectively work towards evaluating how well the arrangements under the Bill would work in the future. Because of that, they came together and produced this document, which I commend to your Lordships.
In those discussions, it was clear that one body would have to co-ordinate the activities. That is not to say that it would dominate, dictate or override other inspectorates, but would take on the duty of co-ordinating the task. The Government decided that Ofsted was best placed to do that for one overriding reason; namely, that Ofsted has an interest in the whole range of school-age children. Therefore, it would be the service that would have most contact with children as whole.
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I hope that I have not detained the House too long. I hope that noble Lords will feel that the progress that has been made in producing an almost unique way of working across 10 government inspectorates is something that should commend itself to the House. Therefore, I hope that the thrust of the thinking behind this amendment will be considered to have been addressed in that way.
Baroness Ashton of Upholland: My Lords, perhaps I may say to the noble Lord, Lord Laming, that not only has he allowed me to be briefer than I would have been, which is great, but also that he is being modest in saying he has played a very small role in this. The noble Lord has been incredibly helpful in ensuring that all of this was thought through properly. I should not think that other noble Lords underestimate for a moment the importance of that role.
I am pleased, too, that the noble Baroness, Lady Sharp, said that this is a probing amendment. I can therefore skip everything that refers to what would happen if the amendment should be passed. I can see clearly now that the noble Baroness was looking for reassurance and wanting to discuss the overarching issues rather than either to create a brand new inspectorate umbrella or to subsume all the other inspectorates. I think that the noble Baroness, Lady Howarth, addressed the problems that would be created were we to take that route. I shall therefore not spend too much time on that.
The critical element of this is within the discussion document. We have brought together 10 different inspectorates to consider how best their resources, services and inspections can focus on an area in order to consider outcomes for children as effectively as possible. Noble Lords who have had the opportunity to look at the discussion paper will know that these are proposals presented by all of them. It states that the proposals come from a steering group of commissions and inspectorates.
Members of the steering group fully recognise the benefits that a co-ordinated approach can bring and are committed to working together to meet the objectives of Every Child Matters, which states:
"Nothing can be more important than promoting the well-being of children and young people and we believe that inspection, assessment and review have a key part to play in evaluating and helping to improve the way services work together to improve outcomes".
In seeking views from people, the inspectorates hope to be able to refine the work that they are doing and consider how best they can establish the framework. I think that noble Baroness, Lady Byford, was concerned about how the framework would work. They have already said that they want to see an integrated approach that will establish agreed sets of principles that underpin all inspection activity; they want to define the contributions to the outcomes for children and young people that different settings and different services may make; they want to identify an extent to which these will be evaluated in different inspections; and they want to develop a consistent approach to making judgments, which I think is important in that co-ordinated

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framework. By conducting joint area reviews, evidence from a range of different sources will be pooled so that it can be linked into a unified system of performance assessment.
That is the basis on which this discussion document has gone forward. Noble Lords who have seen it will know that it goes into much greater detail of the ways in which the inspections would operate, including having the experience of children and young people and the outcomes for them at its heart. Again, that is absolutely critical.
The reviews will work by being organised around the arrangements set up under Clause 15(6). The initial thoughts fall within the document that was published in May 2004. The ambition is that the inspectorates will reach a point where they can make fuller proposals on which there can be a full consultation later this year. This is their "first stab" at looking at what might be the right way to go forward. As I have said, that is based on what they have said about an integrated approach and what they hope to achieve by so doing. They hope to position this within a framework that is consistent and agreed between them all.
In terms of the resources available, two points are critical. The first is for the Government to ensure that resources are available. But I have always been a very strong believer that when one integrates different services, greater opportunities are provided for "better"—dare I use that word?—resources. I am not sure that there will be a resource implication in addition to those that currently exist. However, I accept that that is a critical part of the way in which we must approach the issue. If I am able to elaborate on that, I shall do so in correspondence, but it will be important to make sure that we have considered that.
As regards timing issues, we will ensure that inspection arrangements are differentiated between different authorities, which reflect their comprehensive performance assessment ratings. That may mean that some authorities will have less frequent inspections or, indeed, inspections with less fieldwork associated with them. The regulations being put in place under Clause 15(1) can set out the times or intervals for inspections. Currently, we intend that all authorities will receive an initial joint area review. We will assess the timings of follow-up reviews in the light of experience during that initial round.
That is the ambition. I have said that there will be an opportunity to look at the fuller ambitions of the joint inspectorate document later in the year when it comes into formal consultation and after there has been an opportunity to reflect on what is in the document. I recommend noble Lords to examine it. It demonstrates not only the commitment of the different inspectorates working together, but also the way in which they plan to go about it.
The noble Baroness, Lady Byford, spoke about the possible conflict of interests. The chief inspectors and inspectorates that are listed, as the noble Baroness said, in Clause 15(5) are all bodies and organisations that focus on inspections. The purpose of the joint area
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review is to ensure that the work on children's services takes place against a joint statement of principles, on which the inspectorates have done excellent work and have made great progress, some of which I have just indicated.
In a sense, this will embody the common purpose at the heart of the Bill. All the inspectorates are equal. The references to the chief inspector are to ensure accountability where needed, which brings me to the role of Ofsted. The noble Lord, Lord Laming, was very much party to these discussions and deliberations. As he said, the reason that Ofsted has been put in this position is twofold. First, it is the only inspectorate that deals solely with children: other inspectorates deal with adults and work in different ways. Secondly, it was thought very important that someone should take the final decision. We expect that this will be done through consultation. However, if a local authority has particular issues around certain aspects of its work, it may well be appropriate for that inspectorate to take the lead. The situation would be obvious. For example, if the issues were to surround social services, it would be appropriate for it to be the social care inspectorate and so forth.
Ultimately, we need a co-ordinator who can make the final decision in what I stress would be the collaborative sense, not in an overriding way. We feel it is important for one body to take final responsibility and we have chosen to achieve that in this way. As I have said, engagement and co-operation have been very encouraging so far, and we believe that the inspectorates are working together extremely well.
I hope, therefore, that I have been able to address the points raised by the noble Baroness, Lady Sharp, while deliberately not taking the route of explaining in detail what the effect of the amendment would be.
I return to a question asked by the noble Baroness, Lady Byford. We are very clear that we expect the framework for inspections of services to be in place at the start of joint area reviews. While that is not stated explicitly in the Bill, that is the ambition and the timetable the inspectorates are working towards in the deliberations that form part of the discussion document.
I have already indicated why we think that Ofsted is the appropriate body to take forward the co-ordination role as I have described it. Amendment No. 64 asks for agreement on the most suitable inspectorate or commission to take the lead for each review. However, were no one to be available, should no agreement be reached? Ultimately, we are beholden to ensuring that there is a process in place should such a situation arise. It is not one that we anticipate, but we have to be clear about this.
We recognise that the arrangements under Clause 15(6) need to cover when the review would be scheduled, notification of the review, the formation of the review team, and who is to be the lead inspector. All of those details need to be in place to make sure that we fulfil our obligations, and we believe that these arrangements are appropriate for the inspectorates to determine.

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As I have also said, we do not intend in anything we do to compromise the independence or identity of the other inspectorates, but in order to run what will be a differentiated inspection process which will draw in the broad range of different expertise there has to be a named individual who will look across the programme and take on the co-ordination function. Clause 15(7) provides additional recognition that we value the range of inspectorates by providing that:
"Before making arrangements … the Chief Inspector of Schools must consult such of the other persons and bodies … as he considers appropriate".
I understand, too, the underlying principle that the most suitable inspectorate or commission should lead a particular review. As I have indicated, we are clear that the arrangements for any joint review must include the forming of a review and the determination of who is to lead it. It is important to have a lead inspector to ensure that the initial fieldwork is co-ordinated and that the findings are drawn together in order to prepare the report. Of course the lead inspector could be drawn from any one of the participating inspectorates or commissions. Moreover, it is important that they should fit the circumstances of the particular inspection based on information and knowledge of the areas that perhaps need greater input than others. Clauses 15(6) and (7) allow for that to happen.
I hope that I have given a broad-brush explanation of what we are trying to achieve within the inspection framework, and of our recognition of the way in which the inspectors will work closely together, as well as the way in which the Chief Inspector of Schools would operate in a lead capacity, while recognising that for differential inspection the appropriate inspector will be determined by the needs of that particular inspection, and that it will be co-ordinated through Ofsted.
I hope that I have answered as many of the points as possible and that the noble Baroness will feel able to withdraw her amendment.
5.45 p.m.
Baroness Sharp of Guildford: My Lords, I thank the Minister for that full reply and other noble Lords for participating in this debate. I am sorry that I wrong-footed the noble Baroness, Lady Howarth, but this was very much a probing amendment. Initially it was proposed by the National Union of Students and arose originally as a result of its suggestion that the Children's Commissioner should be the person to set the framework. Noble Lords on these Benches reacted firmly against that, but said that it would be useful to probe the thinking here. This series of amendments was tabled as a result.
I did not know about the joint report from the various inspectorates. Had I done so, I probably would not have bothered to raise the amendments because that report may well answer many of the questions raised. However, I think that it has been extremely useful to put on the record what is already going on and the reassurance that it is to remain a differentiated inspection process, but one
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with underlying collaboration. Many noble Lords will be reassured by the degree of engagement and co-operation that is taking place.
In terms of resources, a point raised by the noble Baroness, Lady Byford, it seems that the early process of getting together can cost much more in resource terms, but that the savings are made down the line. Sometimes a certain amount of seedcorn funding is needed to get such processes under way.
I thank the Minister, once again, for replying in such detail and, in view of the assurances that she has given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 [Joint area reviews]:
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 60:
Page 11, line 14, at end insert—
"(a)"
The noble Baroness said: My Lords, in moving Amendment No. 60 I shall speak at the same time to Amendment No. 61. They address many of the same issues that we have been considering. In the current process of inspecting LEAs, the joint area review is an outcome-driven model of assessing performance, with the outcome focused on the total experience of the child in the local authority area. The original purpose of Ofsted inspections of LEAs was to assess the effectiveness of each LEA's school improvement role. The current framework, set up in 2004, has enlarged this role to look at many other important factors such as compliance with statutory requirements and capacity to improve, as well as output indicators such as the quality of provision for children with special educational needs.
The aim of these amendments is to add an additional purpose; namely, that of an assessment which would be made of the extent to which the children's services authority had improved education and care settings in schools, domiciliary and day care services. The amendment probes the extent to which the joint area review will still assess the LEA in the school improvement role and how much wider that will be.
As I say, the amendments overlap somewhat with the issues already discussed, which the Minister will probably take into account in her reply. I beg to move.
Baroness Ashton of Upholland: My Lords, I should say, first, that I am very sorry that the noble Baroness did not receive a copy of the discussion document. I thought that I had covered everyone. I can confirm that it has been placed in the Library of the House, but I shall ensure that it is sent to all those interested. I apologise if the document was not made widely available, but I try to get everything out as quickly as possible. However, I think that our debate has been extremely useful because it covers an important subject.

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My first reaction to the amendments was to turn to a word that I have not used for a while in our debates; that is, "list". I am concerned that we should not find ourselves making another list of different purposes.
Clause 15(4) provides that:
"The purpose of the review … is to evaluate the extent to which, taken together, the children's services being reviewed will improve the well-being of children and relevant young persons".
That is the key focus of the joint area reviews: outcomes for children and young people, and how the children's services being inspected improve their well-being. Clearly, within that, education and care are critical, but there are many bodies which contribute to them. Joint area reviews will look at the children's services authority function as an education authority and review children's social services. Therefore, we agree that the children's services authority has a key role in helping to secure improvement but, as I have indicated, other bodies contribute as well. We could, for example, also list in Clause 15(4) the support given by the relevant partners of the children's services authority, already listed in Clause 6(3).
We do not want to lose sight of the primary focus. We think it is very important that education and care are reviewed properly. Noble Lords will know that the impact on issues of education and care come from a broader range of services and require us to think much more holistically about the impact on a child. To take a purely educational stance for a moment, in terms of wanting improvements in the outcomes for children in educational achievement, we know that much of their ability to achieve comes from what else we can provide in additional support. I have already threatened your Lordships that I could talk about extended schools for hours, but I will not.
I do not think that we need this amendment. I would be concerned about starting another list. The noble Baroness can be reassured that the education authority and social care functions will be reviewed. However, we should be clear that those services are provided by a broader range of organisations. At last, we have the opportunity to review them, as a whole, and to test the outcomes for children.
Baroness Sharp of Guildford: My Lords, I thank the Minister and am reassured by what she has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 61 and 61A not moved.]
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, I have to inform the House that if Amendment No. 62 were to be agreed, I would not be able to call Amendments Nos. 62A to 64 because of pre-emption.
[Amendment No. 62 not moved.]
[Amendments Nos. 62A to 64A not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 65:
Page 11, line 42, at end insert "(including provision for the creation of criminal offences)"
The noble Baroness said: My Lords, I believe that these amendments improve Clauses 15 to 18, the inspection clauses. As I have indicated, for the new purposes of joint area reviews, whenever possible we shall mirror the powers that inspectorates have for the purposes of their existing inspections, reviews, investigations and studies.
The principle that failing to provide information to inspectors or obstructing their entry to premises is an offence is well established in other enactments—for example, in Section 57 of the Learning and Skills Act 2000 and Sections 66 to 68 and 89 to 90 of the Health and Social Care (Community Health and Standards) Act 2003. It is our intention that regulations made under Clause 15(9) can replicate this principle for the purpose of joint area reviews.
Amendments Nos. 65 and 66 make it clear that under the regulation-making power of Clause 15(9), a criminal offence can be created where persons fail to comply with requirements under Clause 15(9)(a) or (b). That is where people fail to share or produce information for the purposes of a joint area review, or obstruct an inspector from entering premises for the purposes of a joint area review.
Amendment No. 68 shows that we intend to apply the existing powers of inspectorates and commissions to require information and enter premises, when making regulations under Clause 15(9)(a) or (b). So, where an inspectorate's existing powers of entry specifically exclude domestic premises, the same limitation will apply for the purposes of a joint area review.
Amendment No. 76 provides a definition of an "assessment" as being something which encompasses inspection, review, investigation or study. It adds the word "study" to the three words already in the Bill. Relevant existing enactments use each of these four words, and the intention behind the amendment is very straightforward—it is to ensure that all relevant assessments will be covered by the framework for inspection of children's services and can be drawn upon for the purposes of joint area reviews. In particular, we wish to ensure that evidence from Audit Commission "studies" under Section 33 of the Audit Commission Act 1998 can be drawn upon for the purposes of a joint area review.
Amendments Nos. 69 to 75 and Amendment No. 77 each replace the term "inspections, reviews or investigations" with the word "assessment", as defined by Amendment No. 76.
Clause 15(9)(e) provides that regulations may disapply the requirement for an inspectorate or commission to undertake an assessment. This is straightforwardly to avoid duplication in having the same service or function assessed twice, once for the purpose of a joint area review and, secondly, for another purpose.
In practice, an assessment may be undertaken under an existing enactment and also used for the purpose of a joint area review, with findings included in the report of the joint area review. Amendment No. 67 provides that regulations may also disapply a requirement to do,
"anything in connection with an assessment".
Thus, for example, regulations could disapply the requirement to write a report or an action plan, so avoiding duplicating joint area review activity under another enactment. In other words, one does not have to write the report twice.
I believe that these amendments will improve the Bill. I beg to move.
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 66 to 68:
Page 11, line 44, at end insert "(including provision for the creation of criminal offences)"
Page 12, line 6, leave out "a review, inspection or investigation" and insert "an assessment or to do anything in connection with an assessment"
Page 12, line 7, at end insert—
"(10) Regulations under subsection (9)(a) and (b) may in particular make provision by applying enactments falling within subsection (11), with or without modification, for the purposes of reviews under this section.
(11) The enactments falling within this subsection are enactments relating to the powers of persons and bodies to which this section applies for the purposes of assessments other than reviews under this section."
On Question, amendments agreed to.
Clause 16 [Framework]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 69 to 72:
Page 12, line 13, leave out "inspection, review or investigation" and insert "assessment"
Page 12, line 14, leave out "inspections, reviews and investigations" and insert "assessments"
Page 12, line 20, leave out "inspection, review or investigation" and insert "assessment"
Page 12, line 22, leave out "inspection, review or investigation is one" and insert "assessment is an assessment"
On Question, amendments agreed to.
Clause 17 [Co-operation and delegation]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 73 to 75:
Page 12, line 37, leave out "inspections, reviews or investigations" and insert "assessments"
Page 12, line 38, leave out "inspections, reviews or investigations" and insert "assessments"
Page 12, line 41, leave out "inspections, reviews or investigations" and insert "assessments"
On Question, amendments agreed to.
Clause 18 [Sections 15 to 17: interpretation]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 76 and 77:
Page 13, line 2, at end insert—
"( ) "Assessment" includes an inspection, review, investigation or study."
Page 13, line 6, leave out from "of" to "is" in line 8 and insert "assessment, or secures that any kind of assessment"
On Question, amendments agreed to.
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 78:
Before Clause 20, insert the following new clause—
"CHILDREN'S SERVICES IN WALES: PRINCIPLES
In the delivery of children's services in Wales, Children's Services Authorities and their relevant partners in section 20(3)(a) to (e) shall have regard to the United Nations Convention on the Rights of the Child."
The noble Baroness said: My Lords, the purpose of this amendment is to ensure consistency between all agencies working with and for children and young people in Wales. It is in accordance with Assembly policies that have been debated and were formally adopted on 14 January 2004, when the Assembly recorded that it formally adopted the United Nations Convention on the Rights of the Child as the basis of policy-making in this area.
The amendment is also consistent with the advice of the Carlile review into safeguards for children in the NHS in Wales. The Assembly wants this enshrined in primary legislation. This coherent policy framework is essential to realise a shared vision for services. The UN Committee on the Rights of the Child has praised the use of the convention as a framework for the Assembly's strategy for children and young people.
The Children's Commissioner for Wales and the national umbrella body, Children in Wales, want this amendment because they feel it would be helpful if there were a clear statutory requirement for all those providing children's services in Wales purchased by the Assembly, in line with its strategy, to have regard to the UN Convention on the Rights of the Child. It would give additional force to the commissioner's focus on promoting and safeguarding children's rights and welfare.
At present, the commissioner can recommend improvements, but an explicit instruction to providers of services to children would allow him to identify non-compliance.
The commissioner and the Welsh Assembly want to make Wales fully compliant with the UN Convention on the Rights of the Child. I beg to move.
6 p.m.
Lord Prys-Davies: My Lords, I support the amendment which has been ably moved by the noble Baroness, Lady Finlay of Llandaff. A weakness in the Bill is that the UNCRC has been treated as being of importance solely for the Children's Commissioner, whereas it is of equal importance to all the agencies which provide services for children and young people.

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The noble Baroness, Lady Finlay, indicated the principal benefit of this amendment. It will ensure greater consistency of practice between all the children's agencies in Wales. Two other benefits will also flow from the amendment. First, it will ensure that the commissioner and the children's authorities share the same philosophy and approach. Secondly, I believe that the role of the commissioner will be more effective because the children's authorities will be aware of their statutory duty to act in accordance with the UN convention. Therefore, the amendment would facilitate the implementation of the UNCRC in Wales.
When we discussed a similar amendment in Committee, my noble friend Lady Andrews, in replying, indicated that she was sympathetic to the principles of the amendment. I understood her to say that the department would be discussing the matter further with the Assembly. I very much hope that my noble friend will respond positively to the amendment. However, in fairness to my noble friend I also recall that, in replying to the debate, she mentioned the department's old friend—complex legal issues—that might stand in the way of reform. If the Government have decided to resurrect the complex legal issues argument, the children's charities in Wales would be grateful if the Minister would tell us precisely what those difficulties are so that leading counsel can be instructed to advise us on how they can be overcome.
Lord Thomas of Gresford: My Lords, I also welcome the amendment on behalf of these Benches. The United Nations committee has praised the National Assembly for Wales for setting out its priorities in this field and for commending the convention as a framework within which all service providers should work, as the noble Lord, Lord Prys-Davies, said a moment ago. In Committee, we detected that the Minister showed some warmth towards the amendment and we had hoped that some work has been done on it since so that we could have a favourable reply. It would not go down well in Wales should it emerge that the principle has been accepted for the English commissioner and for the purposes of the Children Bill relating to English issues, but for some reason—to do with devolution or some legal problem—it will not be put into primary legislation for the Welsh people. I say Welsh people, but of course it is Welsh children who are our priority in this Bill.
Baroness Andrews: My Lords, we had a good debate on this issue in Committee and I am happy that we have another opportunity to revisit what has happened since then. The noble Baroness, Lady Finlay, has been assiduous in keeping us up to the mark on what she wants to achieve. She has spoken about the support in Wales for this change. We fully recognise what Wales has achieved—such a new Assembly giving priority to children—and the Assembly's commitment to the UN Convention on the Rights of the Child.
The Assembly has adopted the convention as the basis for all its work with children and young people and it has translated the convention into seven core aims that are being developed as a basis both for setting priorities and
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for measuring the impact of services for children and young people in Wales. In practical terms, the Assembly already requires that the Children and Young People's Framework Partnerships in Wales set out in their plans their commitment to the convention. Those partnerships are unique to Wales and much can be expected from them. In addition, we know that the Assembly has established a Cabinet Sub-Committee on Children and Young People, the main aim of which is to oversee implementation.
Therefore, to an extent, we are considering something that is logical in terms of what Wales has achieved. I am happy to repeat the assurance that I gave in Committee. The Government are giving detailed consideration to this issue, in conjunction with the Assembly. Discussions to resolve the problems are continuing. I do not think that complex legal issues are an old friend of the Government. The Government would never seek refuge in such an excuse. We are trying to ensure that, if the measure is introduced, it has a practical effect, it adds value, does what it is intended to do and will make a material difference. It must serve the children of Wales in the specific ways intended.
These are not matters that can be lightly or superficially resolved or discussed because they go into the operation of different services in Wales, many of which are organised differently, particularly children's services. We must ensure that all services are treated consistently and will be able to respond consistently. There are serious issues to be resolved that will take time.
We have been asked to come back and keep noble Lords informed about how we are proceeding with those discussions. I must repeat that, because this is work in progress, we will have to wait until discussions are concluded before we can consider giving any commitment to introduce an amendment. This is a live issue and one that we are taking very seriously. We want to make a positive difference. I hope that, with those assurances, the noble Baroness will undertake to withdraw the amendment.
Lord Thomas of Gresford: My Lords, before the noble Baroness sits down, is she embarrassed to concede anything at this stage because there is to be a handout from the Secretary of State Mr Peter Hain in the House of Commons at some later time? What difficulties are there?
Baroness Andrews: No, my Lords, it is not a question of that at all. If we require services to develop consistently with the UN convention we have to ensure that they are in position to do so, that they have the capacity to do so and that they do so consistently. When they sign up to do that we must have some guarantee that it will happen. It is very important to have that certainty. It is important, not least for the children who are dependent on those services. These are practical measures. This is not political games play. Officials will be going through a serious process of discussion and review. I am afraid that that is all I can say to noble Lords. I am sincere in that analysis and I hope that we can come back to the House and inform the House in due course what has been achieved.
Baroness Finlay of Llandaff: My Lords, I am grateful to the Minister for her reply, although I remain a little unconvinced by what she said. I have a major concern that in parts of Wales there is not a huge choice of providers, and that the Assembly, the children's charities and the Children's Commissioner recognise that they need a lever to give them a little push.
The standards laid out in the convention act as an international benchmark against which services can be measured. It would therefore, as the noble Lord, Lord Prys-Davies, said, increase the effectiveness of the commissioner to have some levers with those services. We must close the loop and ensure that everyone is working to a common philosophy and common aim. It is fine to state that the commissioner has to work to those standards; but then he must work with services, with which he has no lever, to ensure that they jack up in every single area. There is a real problem in some parts of Wales—if one took a service away, one would need to know that there was something coming in to fill its place.
At a personal level, I would like to see Wales delivering the best standard of care for children and young people anywhere in the UK. I want Wales to be an exemplar. I believe that the Assembly, the commissioner and the charities in Wales also want that as a common aim. Therefore, we must push on with this matter. I accept what the Minister said—that discussion is in progress and that she is asking for time to come back—but I fear that we cannot wait for ever.
Although at this stage it is appropriate to withdraw the amendment, I am really not convinced that this is something that can be let drop in the long term. As this Bill passes through Parliament, it must incorporate the issue, because there is a consistent call coming from Wales in that regard. I have not heard any voices from Wales saying that they did not want the provision that we are discussing in the Bill. That is a difficulty that I have with the legislation. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Co-operation to improve well-being: Wales]:
[Amendment No. 79 not moved.]
Baroness Byford Baroness Byford moved Amendment No. 80:
Page 14, line 5, leave out "and training" and insert ", training and recreation"
On Question, amendment agreed to.
[Amendments Nos. 81 to 83 not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 84 to 86:
Page 14, line 7, at end insert—
"( ) In making arrangements under this section a children's services authority in Wales must have regard to the importance of parents and other persons caring for children in improving the well-being of children."
Page 14, line 13, at end insert—
"( ) a youth offending team for an area any part of which falls within the area of the authority;"
Page 14, line 22, after "section" insert—

"(a) provide staff, goods, services, accommodation or other resources;

(b) "

On Question, amendments agreed to.
Clause 22 [Arrangements to safeguard and promote welfare: Wales]:
[Amendments Nos. 87 to 89 not moved.]
Clause 24 [Establishment of LSCBs in Wales]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 90:
Page 17, line 31, at end insert—
"( ) a youth offending team for an area any part of which falls within the area of the authority;"
On Question, amendment agreed to.
Clause 25 [Functions and procedure of LSCBs in Wales]:
[Amendment No. 91 not moved.]
Clause 26 [Funding of LSCBs in Wales]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 92 and 93:
Page 18, line 37, at end insert—
"(1A) Any person or body specified in subsection (2) may provide staff, goods, services, accommodation or other resources for purposes connected with a Local Safeguarding Children Board established under section 24."
Page 18, line 38, leave out "subsection (1)" and insert "subsections (1) and (1A)"
On Question, amendments agreed to.
Clause 36 [Amendments to notification scheme]:
6.15 p.m.
Baroness Barker Baroness Barker moved Amendment No. 94:
Page 23, line 25, at end insert—
"( ) In subsection (2), after paragraph (b), insert—
"(c) requiring any person who fosters a child privately within the local authority's area to be registered by the local authority.""
The noble Baroness said: My Lords, how nice it is to be here. I apologise for my absence during earlier proceedings.
We return yet again to the issue of private fostering and, specifically, its registration. When we debated the matter in Committee, I used a sporting metaphor relating to cricket and bowling to highlight, somewhat lightheartedly, the completely contradictory stance taken by the Minister and her predecessor on this matter. Hence, too, the change of tactics from these Benches. There is perhaps danger of this becoming a classic sporting moment—because, yet again, we on these Benches have returned to the same issue with a slightly different tactic and slightly different form of bowling in an attempt to get through.
These amendments are largely similar to those moved at previous stages and to previous Bills. What has changed this time is that we have removed the restriction that the regulations should apply only to children up to 11. I still believe that it is right, when one

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has to prioritise on resources, as we are frequently told we must by the Government, that we should have a reasonable means of doing so. With our earlier amendments, we thought that children below the age of 11 would be likely to be less able to articulate, principally to professionals, that they were in a private fostering relationship that was unsatisfactory. However, we have taken on board what the Minister said on that matter in Committee and have changed our approach.
The first question that we might be asked is, "Why are you making such proposals yet again?" To put it bluntly, although the Minister gave the matter great consideration in her reply, as she always does, and on a fair basis, she was not compelling on the subject—in fact she was far from compelling. The way in which the Government turned the argument on its head, in discussing whether children below the ages of 16 or 11 should be included, was symptomatic of that. The tactic is not unsurprising, when one considers the history of legislation on matters of adoption and fostering. It happens all the time that a government can deploy completely contradictory arguments.
We believe that the Government's points, which they made in Committee, about the need to establish best practice and enable local authorities to have some degree of freedom in which to determine what is best practice, were good ones. However, we see no contradiction between those arguments and stating that there is a necessity for there to be a registration scheme. We on these Benches believe that there is significant evidence from studies such as the Holman study and from People Like Us by William Utting that the notification system does not work. It is ignored far more than it is advanced. When the noble Earl, Lord Howe, comes to speak to his amendments, he may extend that argument.
I reflected at some length on the Minister's remarks in Committee. I agree that there is a great need to enable best practice and to enable local authorities to be proactive in working with communities in which private fostering is more common than in others. At the end of my reflection, I was left with an unmistakeable impression that privately fostered children will remain the most vulnerable and most hidden in the land if we do not have a registration scheme. Although the Government are willing to expend a great deal of time, regulation, effort and expense in the Bill for the majority of children, this is the one area in which there could be the most effective targeting.
The basis for that effective targeting needs to be a registration scheme. The three amendments that stand in my name enable local authorities to do that. They add the power to have a regulation scheme to the Children Act 1989. They place a duty on local authorities to establish and maintain a register. It is inconsistent with practically every other aspect of childcare, not just childminding, about which we spoke on an earlier occasion, but also with fostering, adoption and other forms of childcare. To leave unregistered and unregulated the placing of children with strangers—
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maybe for the best of reasons—is wrong. Much of what the Government have put forward to date has been based on the misapprehension that it is possible and comparatively easy to change a bad private fostering arrangement once it has started and that that is better than having a scheme that is proactive, in which private fosterers have to be assessed and show that they come up to standard in advance and in which the arrangements are then monitored. Parents, children and private fosters, all of whom have experience of the current situation, have said to researchers that they believe that a system of registration would be beneficial to all concerned.
The Bill is framed around reactions to the worst care of children. The amendment is a proactive way of ensuring that some of the most vulnerable children receive good and adequate care. Since we discussed this matter during proceedings on the Adoption and Children Bill, I have not understood why the Government are so resistant to this measure. It is a measure that will not affect many children but it will have a demonstrably beneficial effect for a very small number of children. That is why we are back at the crease today. I beg to move.
Earl Howe: My Lords, before expanding on the noble Baroness's very wise words, with which I fully agree, I shall speak to two other amendments in this group. In Committee, I argued through Amendment No. 94A for a refinement to the provision in Clause 36(6), such that instead of a local authority simply having someone to monitor the discharge of its private fostering duties it would appoint someone responsible for the delivery of the entire service.
The Minister kindly wrote to me about what the monitoring role might involve and I am grateful to her for that. However, the description that she gave in her letter did not really seem to amount to more than a back office job. It did not seem to involve a co-ordinating role for an authority's private fostering activities, including support for carers, which is what my amendment proposes.
If the Minister does not feel able to agree to the amendment, I wonder whether, as a substitute, she might be in a position to reassure me that the national minimum standards for private fostering will include a recommendation that local authorities should appoint a private fostering officer to perform a co-ordinating role, not just a clerical, recording role.
Amendment No. 98 is designed to ask a very simple question. Clause 37(4) sets out the circumstances in which someone may be disqualified from being registered as a private foster carer under the scheme that Ministers will have the power to introduce. Subsection (4)(d) provides that a person will be so disqualified where he has been convicted of a relevant criminal offence, or is on probation for such an offence or, and these are the crucial words,
"he has been discharged absolutely or conditionally for any such offence".
It is this last part that concerns me.
I can understand the reason why a conditional discharge for a certain type of offence might render a person unsuitable to foster a child. But if that person

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has been discharged absolutely by a court, what possible grounds could there be for denying him the right to have his name on the register? I simply do not understand how this provision is consistent with natural justice or human rights. I hope that the Minister can explain.
Reverting to the main issue, the essence of the matter is whether we believe that an enhanced notification system on its own is capable of delivering the kind of tightening up of the private fostering system that we all know to be necessary. I am afraid that, like the noble Baroness, Lady Barker, this is one issue on which the Minister has so far failed to convince me. An increase in the number of notifications would be desirable if it could be achieved. But even if it were achieved, there is nothing in current law to enable social workers easily and quickly to stop a private fostering arrangement if they think that it is undesirable. Only a registration scheme would do that.
The Minister held up Gloucestershire as a shining example of why a registration scheme is not needed. It is true that Gloucestershire has actively promoted the current legal requirement for private foster carers to notify the local authority of placements and that that has led to a significant increase in notifications. But Gloucestershire County Council has publicly said that this is not enough. It says:
"We would welcome a requirement that private foster carers must be assessed, approved and registered as the most effective way of ensuring that children and young people are protected and that their needs are identified".
Councillor Maureen Rutter, cabinet member for children and families, said that,
"we would welcome a strengthening of the law to ensure that privately fostered children are recognised as a potentially vulnerable group".
That is the nub of the problem with the Government's proposals. They do not sufficiently address the vulnerability of privately fostered children as a group. All the work in Gloucestershire and elsewhere shows that local authorities rarely hear about placements until after the event, which is too late. Under current legal powers, it is extremely difficult to change an unsatisfactory private fostering arrangement at that stage. In fact, such prohibitions are rarely undertaken. This in turn encourages some carers to believe that they have been "approved" when actually they have not been. But it is a belief that can lead birth parents into a false sense of security that it is somehow officially "all right" to leave their children with those carers.
The Minister did not answer my question in Committee about the review of private fostering initiated by the DfES in 2002. Can she say what the result of that review was and whether it has been published? My information is that the review came out in favour of a registration scheme, as did the Social Care Institute for Excellence last year. I understand that the Thomas Coram Research Unit at the Institute of Education has also recently done some work in this area for the DfES. Can the Minister confirm that its research too overwhelmingly indicated a preference for a registration scheme?
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In Committee, I argued that a registration scheme would provide a seal of approval for private fosterers that they would value and that parents would also value as a means of accessing safe carers for their children. I still believe that those are very powerful points. If the Minister is unable to accept the arguments for introducing a registration scheme straightaway, at the very least I should be grateful if she would say something about the criteria the Government will use for deciding whether the enhanced notification scheme has been a success or not. What sort of improvement in the statistics would tend to persuade the Government that there was no need to introduce a registration system? Indeed, will their decision rest solely on statistics or will it consider the pros and cons of a registration scheme in the round?
I very much hope, however, that the Minister will recognise that the Government's proposals are unlikely to deliver what we all want. It would be very good if she felt able to tell her colleagues that the case had been made for them to think again on this whole question.
6.30 p.m.
The Lord Bishop of Oxford: My Lords, I rise to support the amendment in the name of the noble Baroness, Lady Barker, to which my name is attached, for reasons which were set out in Committee; therefore I shall speak only very briefly now. The fact is that an enhanced disclosure system will not bring forward foster parents with whom are placed the most vulnerable children. I agree with everything that the noble Earl said about the inferences that can and cannot be drawn from the Gloucestershire example. What they have done there is very good, but we really cannot generalise from that. As he pointed out, they themselves are calling for a registration scheme.
I am very impressed by the argument that parents who want to place children with foster parents should from the outset have confidence that the foster parent is registered. Surely it must be a benefit to society that once a foster parent is registered, he or she will be able to foster not only one child but a whole series of children, and parents can put children in such care with some degree of confidence.
I know that the argument about the relationship between foster parents and childminders was made previously, but it is still very compelling. It is not possible to put a child for even a few hours with a childminder, and up to 28 days, unless that childminder is registered, and yet at the moment we can put a child with a foster parent for longer than 28 days. That seem an extraordinary type of anomaly.
The arguments against having registration are not compelling. It is very difficult to understand why the Government continue to resist it. I hope that they might make some concessions even now at this stage.
Baroness Howe of Idlicote: My Lords, in Committee I put my name to a very similar amendment on private fostering. Having listened to what noble Lords have just

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said, I am completely puzzled why these amendments cannot be accepted. The right reverend Prelate has just mentioned the parallel with childminders that is there for all to see. We have been told that all the organisations involved with fostering, adoption and all these matters are in favour of moving to registration as opposed to the currently proposed voluntary arrangements. I should also have thought that parents who had to foster privately for whatever reason would be more reassured by the registration process. A check with local authorities would reveal whether anything known about potential foster carers made it undesirable for them to serve in that role.
I shall not repeat everything that has been said. I merely wanted to add my remarks to those of noble Lords who believe that the Government should move firmly towards a permanent registration system.
Baroness Howarth of Breckland: My Lords, I had not intended to speak to the amendment. However, I should like, if I may, to ask a few questions. I apologise that I missed the Committee stage. Although I have tried to catch up, I may have missed the answers to these questions.
Are the Government reluctant to put in place a registration scheme because of the resource implications? The Association of Directors of Social Services has occasionally raised the issue of the resource implications of registration schemes. Are the Government reluctant because minimum standards would have to be set, just as there are for childminders and other foster carers? The stringency of those standards vary. As some of these foster parents would not meet those standards, there would be a need to find alternatives.
Are the Government reluctant because of a worry about family placement, an issue which has been raised before? If so, I believe they could make exclusions for children placed with families. I successfully brought up my sister's children for five years. I would not have expected to be registered; but if I had to be, then I would have looked at it.
If it is not for those reasons, I would find it extraordinarily difficult to understand why these most vulnerable children should not receive the same care as childminded children and fostered children. I am just very sorry that the noble Lord, Lord Laming, is not here. I am sure that he would have had something similar to say.
Baroness Ashton of Upholland: My Lords, I am very grateful that we have had the opportunity to discuss this issue again—although I am always sorry when I have not been compelling in my arguments. However, this is a very important debate. I am very glad to see the noble Baroness, Lady Barker, in her place despite her undoubted jetlag. We will forgive her if that has some effect later.
If I may, I should like to deal with Amendment No. 94A before turning to the substance of the group. I believe that the noble Earl wanted me to say something about the national minimum standards in this context.
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We think it very important that local authorities ensure that those who carry out the functions around private fostering on behalf of the local authority understand the private fostering issues, have the right kind of access to support and training and provide the co-ordination function for which the noble Earl was looking, and which I clearly failed to address earlier. However, other issues such as monitoring, and so on, are also important. It is quite important to cede those to the local safeguarding bodies.
I take the noble Earl's point that the job is broader and perhaps bigger than that. We will look at addressing that in the forthcoming national minimum standards, which I hope will answer that point. I may expand on that in correspondence with the noble Earl after I reflect on it. I wanted to say that straightaway, however, as I think it may sufficiently deal with the point.
I turn to Amendments Nos. 94, 95 and 96. The noble Baroness, Lady Barker, and other noble Lords have put the case very strongly and passionately for moving directly to a private foster carer scheme. We have taken a different view—by the very nature of the way in which we set out our objectives for the enhanced scheme and the sunset clause—but I hope that we have indicated that we take the case seriously. We may disagree about how we get there, but we recognise the vulnerability of children and young people in this context. We have thought very carefully about it.
It is just that we are not convinced that a registration scheme will work better than the Bill's provisions to enhance the existing notification scheme. That is partly because we believe that the existing scheme provides a robust framework of safeguards and that the Bill's provisions will make it even stronger. So we start from the principle of saying, "We think that it is robust. We recognise it could be strengthened. We have tried to do that in the Bill. If it does not work we will take action". Within the department I have discussed and deliberated on why we do not want to make such a direct move. The main reason is that it is very difficult to generalise about privately fostered children. As we discussed in Committee, there are many different types of privately fostered children and we need to be aware of that. Noble Lords expressed great concern about those who come from abroad perhaps to enhance their educational opportunities. Some children are in language schools—a category that has been looked at—for more than four weeks. Some of them are young people on exchange holidays, and some may have fallen out with their parents; that is, teenagers who need to go and live with someone else while the situation cools down. For some, a parent may have been taken suddenly into hospital and close friends or godparents are staying with the family during that period.
We seek to find a way of safeguarding all these children in different circumstances, some of which are purely commercial arrangements in which the people involved might be loving and caring, but the motivation is at least in part a commercial one and in arrangements where the motivation is purely one of support for the family. In the latter case emergency

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circumstances may arise which could last for some time and someone may take in the children of a family with whom he or she is very close but to whom they are not necessarily related. I can think of circumstances—as I am sure can noble Lords—in which should an emergency arise, heaven forbid, I would take in children whom I know well without hesitation for as long as that was necessary.
Given the range of circumstances that may arise, we wish to test out the enhanced notification scheme. We believe that it is worth giving it a chance to work. We believe that it could better engage local communities than a registration scheme. It might encourage people to notify the authorities of a much greater range of arrangements than would occur if the alternative was to register as a private foster carer.
We have talked about Gloucestershire where notification schemes have begun to work well. We want to test whether they could work well elsewhere. The requirement to raise awareness of the need to monitor—I am sure that some people are unaware that that is a requirement—closely the operation of schemes locally with a view to ensuring that they comply with all their duties in relation to privately fostered children is important. If people do not know that they should come forward, they simply will not do so. We have placed the onus on local authorities with regard to the enhanced scheme rather than on parents or individuals. We want to test that approach before we place the onus on the individual to come forward because of the range of different circumstances that I have outlined. We think that it is important to get our services working more fully before we place the onus elsewhere.
We have concerns—I hope that I have indicated them—that while a registration scheme might be appropriate for strictly commercial arrangements, it is more problematic where an extended family or friends offer to care for a child or help out in emergency situations. We are not yet convinced that they should need to register as private foster carers for what is to all intents and purposes informal and private arrangements made by parents who know the adults concerned extremely well, as, indeed, do the children. I am not convinced that families would expect or welcome such scrutiny of those private arrangements.
We are not sure that a dual system, which could cause confusion, is the best way forward. As I said on 27 May, we believe that we should have one system, whether that is enhanced notification or a registration scheme, which applies to all privately fostered children. We are approaching this matter with a degree of caution with regard to moving directly to another system without doing more to make the enhanced notification scheme work, and making sure that we consider very carefully the range of children involved in the matter.
The noble Baroness, Lady Howarth, asked whether resource implications were the reason that the Government do not want a registration scheme. That is not the case. It is a question not of minimum standards but of the matters that I have indicated. The
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noble Baroness was right to talk about exempting families from certain requirements. However, the difficulty arises when one tries to define a family. I mentioned the kind of arrangements in which I would look after the children whom I mentioned. I would not register myself formally as I would not expect that to be necessary in those circumstances. However, I would probably not be caught by the traditional definition of a family as I would not be a family member. We shall, of course, consider the case—the noble Baroness makes an important point in that regard—where parents make private arrangements for their children with people with whom they have strong relationships who are not family members. We have to ask whether we should get involved in or interfere with that. Making a registration scheme encompass them is a matter that we have to consider further.
The noble Earl, Lord Howe, asked me on what basis we would determine the evaluation criteria. I do not have the detail of all the evaluation criteria at the moment as we are still thinking about it. I think that the noble Earl would be surprised if that were not the case. However, it will certainly involve an increase in notifications. That will be a critical part of it. We shall assess the impact of the Bill on authorities to raise awareness locally. We shall measure that through the new annual data collection exercise on notification rates which came in in April 2004. We shall monitor compliance with the Children Act and associated regulation through inspection. Ultimately, we shall need to decide whether the new measures, along with the national minimum standards for private fostering, have addressed the problems with notification schemes that have been identified.
As I said in Committee, we have deliberately given ourselves a short timescale with a sunset clause in order to conduct an evaluation quickly. Since our debate on 27 May we have agreed that we shall during the lifetime of the registration provisions publish a report on the impact of the new measures in Clause 36, including an indication of whether, in the light of that, we are minded to move towards a registration scheme. A report will be available as quickly as possible on whether we think the measure is working and whether we think that we should move to a registration scheme.
We are searching not for different ends but for different means to that end. We want to encourage private foster carers to contact their local authorities. We are worried that moving directly to a registration scheme could make them more reluctant to do so. They may be worried about being considered suitable or fearful of being subjected to regular inspections.
Private foster carers would need to be checked. The measures that we are introducing through this Bill mean that under the existing notification scheme a local authority would need to check a private fostering arrangement before a child was placed in it. We are not entirely convinced that a registration scheme has great benefits over enhanced notification.

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Our ambition is to take the measure one step further with national minimum standards, enhanced notification, review and inspection and a careful consideration of categories of children. We need to be clear that we have one system but that we recognise different categories of children within that. In the course of reviewing the measure—as I say we have deliberately put in place a sunset clause—we would come forward with a registration scheme if we considered that that was necessary.
I hope that I have made a more compelling argument than I did previously as I consider that I owe it to my colleagues who have worked long and hard on the matter. As I say, we seek to take the measure a stage further with a view to introducing a registration scheme if that is considered necessary. We recognise that many of the arrangements we are discussing are made between families. The Government should become involved in that only if it is appropriate. On that basis I hope that the noble Baroness will feel able to withdraw the amendment.
The noble Earl, Lord Howe, rightly asked a question about Amendment No. 98. We believe it is important, even in the circumstances that the noble Earl indicated; namely, that local authorities should be able to determine whether a person is appropriate in the context that we are discussing. For example, if a person has a conviction for an assault on a partner and the court gives an absolute discharge, we believe that the local authority should be able to take its own view on whether that person should foster privately. My understanding is that this is in line with existing provisions on persons being disqualified under Section 68 of the Children Act and provides a degree of flexibility.
The noble Earl raised a point about human rights and so on. If he will allow me, I am inclined to take it away again. Although I have the answers, we need to put in writing specifically how the matter is covered, as I can see that noble Lords are concerned and think that it is not addressed effectively. The Bill is in line with existing provisions, which will have taken into account issues such as human rights. I would like to come back with better examples on that. On that basis, I hope that he will not press the amendment.
Earl Howe: My Lords, do I understand the Minister to say that "may" in Clause 37(4)—it states that,
"a person may be disqualified"—
actually means "may", and that the intention is that the regulations should allow a local authority discretion in the circumstances that she outlined?
Baroness Ashton of Upholland: My Lords, that is my interpretation—that the provision would be about discretion, taking into account all the factors.
Earl Howe: My Lords, I am most grateful. Even so, I am sure that the Minister will agree that there is a question to be resolved in that respect.
Baroness Barker: My Lords, I find myself in some difficulty. I understand the sincerity with which the noble Baroness puts her case, but the slow way in which the Government have approached the issue does not give anyone who cares about it great comfort.
The context for the debate is that the bus has been well and truly missed once already. The provision should have been in the Adoption and Children Act, but it was not. Some of us drive around central London and see buses with exhortations on their backs for people to become foster parents, because there is an acute crisis in foster care about which we have talked before. The issue has been pushed further and further back. In that context, one has to doubt the sincerity of the Government to move forward on the issue.
Now is not the time to talk again about the Government's provisions on some sectors; we did that in Committee. However, there is no compelling argument in that either. Those in the field who care passionately about the subject and have argued for it—the ADSS, BAAF, the NSPCC—are yet again battered back and forth between arguments about whether such provisions should involve all kids or only children up to the age of 11.
It is entirely possible for there to be a registration scheme that is widely known about and promoted, into which people who may be engaged in informal care of the types explained by the noble Baroness understand that they fit. Anyone looking after a child by accident—in an emergency, for a minimal period—will see that it is to the benefit of that child and all children that that arrangement is known about and known to be safe. We spend so much time trying to make other children safe, in all other circumstances, and there really is discordance here on the part of the Government. It does not add up.
I take the argument that the matter is not about resources. I shall go away and look at what the noble Baroness said but, when more resources are going into the development of adoption and fostering services, the issue stands out a mile as a gaping hole.
The track record of another place on the matter is not one from which we should take any comfort. We in this House should determine the matter. For the moment, but with great reluctance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Andrews: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Scottish Parliament (Constituencies) Bill
6.55 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Filkin.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gould of Potternewton) in the Chair.]
Clause 1 [Constituencies and regions]:
On Question, Whether Clause 1 shall stand part of the Bill?
The Earl of Mar and Kellie: I oppose—for a moment, at least—the inclusion of Clause 1 in the Bill, so that the Committee in particular, and Scotland in general, can find out the Government's plans for the devolution of control of the Scottish parliamentary election process to the Scottish Parliament, and hence to the people of Scotland.
Now that the decision has been taken and implemented to restart Scotland as a political entity at a national level, it is important for all observers and participants to understand how the process will develop. We were told in 1999 that devolution was a process, not an event. That implies that 1999 and the first Scottish parliamentary elections were the first stage of a process of more than one stage. So why is the Bill silent about the next stage? Why does the Scottish parliamentary election process continue to be reserved to Westminster? Why are the people of Scotland not being trusted to make their own decisions on the matter?
I congratulate the Government on producing such a tightly drawn Bill. Like many others, I was unable to develop any amendments to achieve the devolution of powers over constituencies and regions. Admirable as that is for the Ministers involved, it might be viewed as an undemocratic act to produce unamendable legislation—or perhaps I am not very good at drafting amendments. I tried to develop amendments that removed Scottish Parliament elections from Schedule 5 to the Scotland Act in May 2011. However, that was too difficult for the Public Bill Office to accept, as was my second attempt, which was merely to devolve at constituency and regional boundaries on the same date. Why May 2011? The answer is that it would be immediately after the fourth Scottish general election, after considerable election experience had been gained. There would have been no rushing things in such a mild amendment.
I hope that the Minister will now lay before the Committee the Government's plans for constitutional development in Scotland, so that everyone may know where we are going with Scottish autonomy.
Baroness Carnegy of Lour: I do not think that the noble Earl really believes in devolution. He seems to want a completely independent Scotland. If the United Kingdom were to remain together and Scotland were not to become independent, it would of course be very important that the constitutional arrangements for Scotland remained at Westminster. It is also very important that there be fairness between constituencies across the United Kingdom, as well as between constituencies in Scotland. It is Westminster's job to seek that. The noble Earl disregards the fact that there are 72
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Scottish MPs at Westminster who represent the people of Scotland. He seems to think that representative government in Scotland can happen only in the Scottish Parliament. I do not agree with him—it happens at Westminster. I do not think that the noble Earl has a valid argument. We certainly cannot take the clause out of the Bill, as it would be wrecked and we would not wish for that. I hope that the noble Earl will not pursue that line.
7 p.m.
Lord Filkin: I am pleased to respond to the noble Earl's question. In doing so, I acknowledge the support that he indicated at Second Reading for the broad thrust of the Bill. I appreciate that, although I do not believe that he will be as appreciative of, or surprised at, what I shall say.
The Government have no plans to devolve powers to the Scottish Parliament in relation to its constituencies and regions and elections to them—and there are no plans for any other substantial amendments to the Scotland Act in primary legislation. The Government are confident that the balance of powers contained in the Act is about right. Overall, there is no prospect or desire for a Bill to revisit the Scottish devolution settlement. This is settled business. We believe that the current position serves both Scotland and the United Kingdom well.
The basic structure of, and electoral system to, the Scottish Parliament is a central part of the constitutional settlement, whereby Westminster devolved some of its responsibilities. These matters have to remain the responsibility of Westminster. However, the noble Earl will be aware of the new independent commission on boundary differences and voting systems, to be chaired by Sir John Arbuthnott, which we discussed at Second Reading, which will make recommendations to the First Minister as well as to the Secretary of State for Scotland.
Ultimately, given that the issue of elections to the Scottish Parliament is reserved, it will be the responsibility of the Secretary of State to decide on the Government's response to the commission's recommendations. The Secretary of State has, however, made it clear that in doing so he will take into account the Executive's views.
I do not expect that my comments will surprise the noble Earl, although they may disappoint him, but I wished to put them on the record.
Lord Monro of Langholm: My noble friend Lady Carnegy of Lour sat down more quickly than I expected and I had hoped to leap to my feet after her. However, there are some points that we need to discuss.
I agree with the noble Earl, Lord Mar and Kellie, that this matter should have been returned to Scotland for a decision, because that is what has happened. The Scottish Parliament has decided that it wants 129 Members and the Scottish inquiry decided on 129. Westminster has been looking at the matter edgeways, so that might as well have been returned to Scotland, as it would have been able to make its own decision without involving Westminster.

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I have some questions relating to the Electoral Commission. I am not clear about paragraph 5 on page 4, which I have been looking at all afternoon, relating to the Boundary Committee. Is the Boundary Commission reinventing itself as the Boundary Committee? If so, is that not a devaluation of the present Boundary Commission, if it is only to become a committee of the Electoral Commission? Paragraphs 5 and 6 of the Explanatory Notes refer to the Boundary Commission, while the Bill refers to the Boundary Committee. There must be a misunderstanding somewhere.
In view of the recent decision by the Electoral Commission in England that was not accepted by the Government, there must be concern over whether the electoral commission in Scotland, which will be a different body from that in England, will be over-ruled as well. There is also concern about the voting system, because at Second Reading the Government never came to grips with the intense muddle that has been, or will be, produced in Scotland, given that there will be four voting systems and four constituencies in each area. That is opposite to what, I appreciate, the Government are trying to do—to involve more of the electorate in voting. But the greater the muddle, the fewer people will vote.
We need a much speedier resolution of that problem and, as the noble Earl, Lord Mar and Kellie, said, we cannot allow this to drag on until 2011. Nothing would settle down until four years after that. We will have years of incoherence on issues relating to elections in Scotland. Will there be a continuation of the additional member voting system or a move to STV, as the Liberal Democrats appear to want, or will they continue their pursuit of the present Scottish Executive for a move to proportional representation for local government in Scotland?
Another matter of concern regarding Clause 1 is that when the commission reports, it is up to the Secretary of State and the First Minister to make a decision. That is different from the present position relating to the Boundary Commission. When it lays an Order in Council, that has to be put to Parliament and not altered in any way by the government of the day. So there is some concern about the procedures for the new Electoral Commission.
At Second Reading, I pressed the Minister on timing and I appreciate that he gave a fairly detailed response. However, the Government have been dilatory about introducing this legislation. It received a Second Reading on 9 February in another place. Nothing happened thereafter until 4 May, when the Bill had its Committee stage and remaining stages. Second Reading in this House was on 25 May and there has been some delay before we reached Committee today. I have been concerned about that because I explained at Second Reading that unless the Bill is enacted very soon—and these Benches are not delaying it—there will be no hope of having the new constituencies in place for, say, an election in the autumn. If there were to be an autumn election—no one knows whether that would happen until much nearer the time—there would be almighty chaos, because although Scotland
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has moved to the new constituencies, we would have to return to the old constituencies. We would have the problem of appointing candidates. Heaven knows what those in charge of the administration of the elections would do.
I asked the Minister to state the minimum time between the passing of this Bill, the subsequent Order in Council on the Westminster constituencies and when a general election could be held on the new constituencies. That is crucial for Scotland, yet there seems to be no hurry to do that. The Minister said to me that the Boundary Commission in Scotland, which has made its decision on constituencies, would not lay its order until this Bill was enacted, so that it did not have to consider the regions. But the regions have nothing to do with the coming general election. They are not required until we reach the next elections for the Scottish Parliament. I do not know why the Government are unable to say to the Boundary Commission in Scotland, "Lay the orders on what you have done and let's get on with the new constituencies for Westminster", for which everyone has been preparing but which may not be implemented if an election takes place unexpectedly, and which we know could happen for any number of reasons.
Is the Minister able to give me some encouragement as to when all this will be sorted out? A great many people in Scotland are now working on the assumption that they will have the new constituencies in operation very soon, and yet the Government are not making rapid progress on an Order in Council to implement what the present Boundary Commission has decided.
I hope there is some urgency among the Government. I know that they do not really want this because they are going to lose seats but, in the interests of proper democracy, other people want to get these seats in place as soon as possible.
Lord Filkin: I am happy to clarify a number of the questions that the noble Lord, Lord Munro, asked about the Electoral Commission. I am even happier to repeat what I said at Second Reading, hopefully in even clearer terms so that there is no doubt on this issue.
First, the Electoral Commission is an electoral commission for the UK. It is not a new body; it was, if memory serves me right, established by the 2000 Act. It has therefore been in place for some time. Because electoral matters go to the heart of our constitution, the Electoral Commission's remit covers all parts of the United Kingdom.
As to the existing boundary commissions, they are replaced by boundary committees which report to the Electoral Commission. Therefore the Boundary Commission for Scotland will be replaced by the Boundary Committee in Scotland, looking at Scottish issues, which will report to the Electoral Commission. This has all, for good reason, been put in statute for several years. The electoral arrangements across the UK constitution need to be looked at as a piece by an organisation which is completely independent of government, which the Electoral Commission is.

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Secondly, I turn to voting systems and boundaries and the famous discussion about non-coterminosity that we enjoyed at Second Reading. As I signalled, Professor Sir John Arbuthnott has been appointed as the chairman of the ad hoc commission to look at the boundaries and the four voting systems in Scotland. I signalled that at Second Reading and he and his commission will undertake their work according to the terms of reference that I think were announced by the Secretary of State for Scotland in February in another place.
Turning, thirdly, to the relationship between this Bill and the reduction in the number of Westminster MPs elected from Scotland, the Government's position on this has always been that the case for the existing number of MPs in Scotland was not legitimate or sustainable once a Scottish Parliament had been established. Therefore we designed a process for reducing those numbers. As to why we have not done so before; as I sought to say at Second Reading, the Government have no power to override the statute. The statutory duty is placed on the Boundary Commission for Scotland to complete its review of changes to Members of the Scottish Parliament. The final part of that process is to look at the regional list MSPs.
As soon as this Bill is passed, part of it will sweep that process aside. Therefore as soon as Royal Assent is given to this Bill, the Boundary Commission for Scotland will be able to report to the Secretary of State for Scotland to say that its work is completed. When that then happens, the Secretary of State for Scotland is charged by the legislation, as I recall, to report to Parliament as soon as may be on the recommendations for a reduced number of MPs to be elected from Scotland to Westminster.
Therefore the Government have no power whatever to do what the noble Lord, Lord Munro, said, but he has considerable power to ensure that our processes are efficient and expeditious. As soon as we end this process and Royal Assent is given, the Boundary Commission will be in a position to report and its work will be completed. As to when that will be, if, as human endeavour ought to make possible, we complete the passage of the Bill before the Summer Recess—particularly if there are no amendments which would force it to go back to another place and to come back in the spill-over—then the Boundary Commission will be in a position to report to the Secretary of State and the process will follow exactly as I have sought to indicate.
That is the gist it. In a nutshell, were an election to be, for the sake of argument, held next spring and we completed the passage of this Bill before the Summer Recess, there is no doubt that the elections to Westminster from Scotland would be with a reduced number of MPs. That is what I believe the noble Lord, Lord Monro, wants to see. I hope that that is helpful.
Clause 1 agreed to.
Clause 2 agreed to.
Clause 3 [Expenditure]:
On Question, Whether Clause 3 shall stand part of the Bill?
7.15 p.m.
The Duke of Montrose: Clause 3 is entitled "Expenditure" and simply states:
"There shall be paid out of money provided by Parliament any increase attributable to this Act in the sums so payable under any other enactment".
I find the clause vague, to say the least.
Parliament—presumably the Westminster Parliament and not the Scottish Parliament—is to provide money to cover any increase in costs which is a direct result of the Bill becoming an Act. In the Explanatory Notes at paragraph 25, dealing with the financial effects of the Bill, we are told:
"The provisions which introduce a regular review of the boundaries of the Scottish Parliament constituencies and regions will place an additional requirement on the Electoral Commission and the Boundary Committee for Scotland, from time to time. It is estimated that these periodic reviews will cost in the region of up to £300,000 per annum when active".
I see two points at issue here. First, can the Minister give us an idea of how the figure of £300,000 was reached?
The provisions of the Bill place an extra duty on the Electoral Commission and the Boundary Committee compared with their original remits under the Political Parties, Elections and Referendums Act 2000. I do not have a problem with the principle, but it was in the first instance understood that the cost of devolution would be a charge on the UK taxpayer. However, there must be many who would question why this particular advantage on which the Scottish Parliament seems to insist should be imposed on the rest of the country as a penalty for having the Scottish Westminster seats reduced.
The forthcoming report of the Boundary Commission—the results are more or less known and it brings the Scottish constituency quota into line with the rest of the UK—is welcome. However, it can be argued that the extra charge does not benefit anyone outside Scotland and, furthermore, there are bound to be those who are numerate who will question whether it benefits those inside.
We have no substantial objection to the handover to the Electoral Commission and the Boundary Committee of the responsibilities, as detailed in the Bill. In anticipation of our later amendments to Schedule 1, the earlier amendments probe the detail rather than the substance of the schedule which deals with the handover.
Our second point is of a more general nature. Clause 3 makes provision for expenditure under the Bill. We were more or less agreed that the £300,000 to cover the extension of the Electoral Commission and the Boundary Committee was not the only expense that the passage of the Bill would cause. I seem to remember that at first the Minister appeared fairly dismissive of my comment that to retain 129 MSPs as a consequence of cutting the link with Westminster constituencies had cost implications. Members of the Committee were much reassured when he stated in regard to the financial net effect of the Bill:

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"I am not going to waste time on obfuscation now on this point. I shall put before Members of the House the best estimate of what would have been the cost if those changes had been made … One would expect that the cost of reducing the numbers will not affect the fixed costs in any significant way. It will affect variable costs, but the variable costs will be reduced by the cost of change. I therefore ask noble Lords not to get overexcited by expecting that this will transform public expenditure".—[Official Report, 25/5/04; col. 1237.]
Personally, I have waited with eager anticipation for that letter for almost four weeks. In fact, I searched my mail box last night and, again, first thing this morning, but I am still at something of a loss to know what kind of gremlins are at work in the parliamentary postal system when the Minister's letter carrying the date of 17 June appeared there only this afternoon. I am grateful to the Minister for giving me the figures in his fairly brief note.
I tabled my opposition to the clause standing part when the note from the Minister on the costing question was not forthcoming. We on these Benches did not think it unreasonable to ask whether he had any figures available for us. The figures in the note which the Minister sent me accord with the figures which our Scottish office had already produced for us—that is, a saving of more than £2 million if the reduction in the number were to take place.
As I said at Second Reading, we know that the expenditure of the Scottish Parliament has escalated considerably from pre-devolution days. I am not talking only about the sky-high figure of the Scottish Parliament building; figures provided by our Conservative office in Scotland tell us that the cost of administration in Scotland has risen since 1997 by more than 60 per cent and that there are three times as many chauffeur-driven cars, three times as many press officers and five times as many special advisers.
Although consultation has been going on for several years regarding retaining the number of MSPs at 129 rather than reducing it to 108, it was not until the publication of this Bill that it was anywhere near certain to happen, and the Bill has still not achieved Royal Assent. Surely there must have been some forecasting of the relative costs of cutting or retaining the number of 129 MSPs. I ask the Minister whether the figure of £2,468,000, given in his note, is the result of a previous costing exercise or whether any further documents are available. I wonder whether that is still regarded as being a not very serious sum. It seems incredible that we are dealing here with a budget for a country whose inhabitants have built a reputation on the great care that they take with their money.
I know that the Minister is trying to avoid becoming involved with a fixed-cost element, but perhaps, in addition, he could tell us how the 129 MSPs will be accommodated in a building which is reputedly large enough to provide offices for only 108. Perhaps there will be a need to rent a small additional office block.
I wonder whether I am alone, even though I understand part of the logic, in finding cause for concern in the Scottish parliamentary corporate body's response to the consultation on the size of the
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Parliament. It lists the three questions that were put, none of which concern finance, and, indeed, its response is concerned solely with the first—the effect on the operation of the Scottish Parliament. There is no mention or consideration of cost. I feel bound to ask whether this will become a habit.
The cost of the change is only one factor which should be considered when we are thinking about retaining the number of MSPs at 129 and cutting the link with Westminster. It is certainly not our sole or principal concern. With Amendment No. 1, we shall come to the substantial debate about the benefits of having coterminous constituencies. However, it is something that should be taken into account when deciding how best the Scottish Parliament can serve the people of Scotland. Money saved in reducing the number of MSPs can be used for other, and possibly better, services. We wish to ensure value for money in the Scottish Parliament.
Lord Filkin: I think that the first question posed by the noble Duke, the Duke of Montrose, related to the sum of £300,000. It concerned both how it was derived and why it was necessary. As a consequence of uncoupling, if I may put it in that way, Holyrood MSPs from Westminster MSPs, there is no automaticity to the constituency boundaries of Scottish MSPs.
Therefore, completely in line with what happens with regard to electoral processes elsewhere in the United Kingdom, there needs to be a process whereby the relevant body—the Electoral Commission serviced by the boundary committee for Scotland—looks periodically at all reviews. From memory, those take place at seven to nine-year intervals. There also needs to be a power for it to look at anything that has happened in between, when it considers it necessary to do so. It is a completely standard process for boundary commissions to look at any anomalies which they believe have arisen and which cannot wait until the major periodic reviews of all the boundaries take place.
The figure of £300,000 is officials' best estimate of what it would cost when such an interim, more focused review was switched on. It would not be switched on every year because there would not be a need for that, but that is their best estimate. Obviously, it partly depends on the size and scale of the issues that the boundary commissions are considering, but that is a function that they must undertake periodically. It is part of the funding of electoral arrangements generally across the United Kingdom and it is four-square with those.
I turn to the noble Duke's second question concerning the savings that would have been made if there had been a reduction in the number of MSPs. I am saddened to hear that the letter I wrote on 17 June to the noble Duke did not arrive until today. I recollect specifically asking my officials, if I may be so personal, to check the exact spelling of his first name because I was unsure of it. I believe that they rang his office several weeks ago to check on that, and the letter was

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signed within a day. Nevertheless, for whatever reason, I am very sorry that he did not receive the letter.
There will be no great shocks in the letter, and I shall add a little to it for the record. The figure of £2.468 million is made up of 23 MSPs' salaries, making a total of £1.134 million, plus the Members' costs, which enable MSPs to secure staff and accommodation to assist them in the discharge of their duties. That gives an average cost of £58,000 for each MSP, making a total for the other costs of £1.334 million. Those two figures together give a total of £2.468 million.
I was in no sense implying that £2 million is not a significant amount of money. It is all public money and it all matters, particularly to those who fund and provide for such expenditure. However, I was signalling that it was not a central issue to this Bill. By that, I mean that, after a very thorough process of consultation, we took the view that we would not reduce the number of MSPs in Scotland. That was because that was the overwhelming view of virtually all the people in Scotland who responded to the consultation process. They argued for both a period of stability and a continuation of the very active committee system, which involves civil society in Scotland in its legislative process.
Therefore, I do not think that this issue is fundamentally driven by cost. I go further: were the change to the number of MSPs to have been carried out, effectively the cost would have come out of the block vote of the Scottish Executive's budget. Therefore, there will be no direct saving to the Westminster taxpayer; it will simply be the case that the Scottish Executive has chosen to spend its money in a slightly different way. It has fairly explicitly already made the decision to have the same number of MSPs in Scotland and therefore it has fairly explicitly forgone the notional saving that would have come about had it supported a reduction in the number of MSPs. I hope that that is helpful.
Baroness Carnegy of Lour: There was one point that my noble friend raised which I do not think the Minister addressed—that is, the question of accommodation. Does he know how many MSPs the Parliament building is designed for? If it is designed for fewer than 129, will extra accommodation have to be rented as a result of the Bill until the matter is finally resolved? It would be interesting if the Minister could answer that point.
7.30 p.m.
Lord Filkin: No, I would be chancing my arm if I speculated on that. With the greatest courtesy to the noble Baroness, Lady Carnegy of Lour, I do not believe that that is central to the issue before the Committee. The Scottish Executive has affirmed—and the Government have not dissented as a result of the decisions that they have made—that the current
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number of MSPs in Scotland will be retained. They will be accommodated and the Government have no intention of going back on that decision.
The Earl of Mar and Kellie: Does the expenditure mentioned in Clause 3 in relation to the Boundary Committee come wholly from the Scottish block grant or does some of it come from the UK Treasury?
Lord Filkin: I was checking that my speculation was correct. I believe that it all comes from the Westminster budget rather than from the Scottish budget.
Lord Palmer: Can the Minister remind the Committee how many people responded to the famous consultation document? I am sure that someone mentioned the number at Second Reading, but I do not have the text of that debate in front of me.
Lord Filkin: Perish the thought, but neither do I. No doubt I shall find it when I peruse my files. I apologise to the noble Lord. It is part of my later notes. I shall bore the House with the detail of that, I promise.
The Duke of Montrose: Perhaps I should apologise. I am one of those who completely ignored the consultation period in Scotland. I am sure that the consultation period passed quicker than many anticipated. No doubt at some point the Minister can tell the Committee the figure.
Clause 3 agreed to.
Clause 4 agreed to.
Schedule 1 [Substitution of Schedule 1 to the Scotland Act 1998]:
The Deputy Chairman of Committees (Baroness Gould of Potternewton): Before calling Amendment No. 1, I must inform the Committee that if Amendment No. 1 is carried I cannot call Amendments Nos. 2 to 4 inclusive for reasons of pre-emption.
The Duke of Montrose The Duke of Montrose moved Amendment No. 1:
Page 3, line 7, leave out paragraph 1 and insert—
"1 For the purposes of this Act, the constituencies are—

(a) the Orkney Islands,

(b) the Shetland Islands, and

(c) the parliamentary constituencies as set out in the Boundary Commission report for Scottish Westminster constituencies."

The noble Duke said: In moving Amendment No. 1 I shall speak also to Amendments Nos. 4 and 5 grouped with it. The problem that we face with the Scottish Parliament is that like so many of the constitutional issues it has been dealt with using a bottom-up form of logic. The Consultative Steering Group on the Scottish Parliament set out its principles which appear to embrace accessibility, transparency, the sharing of power and equal opportunities. Those are not defining constitutional principles and do not dictate anything concerning the size of the Scottish Parliament.
When your Lordships finally got around to considering the Commons amendments to your Lordships' amendments, the noble Lord, Lord Sewel, admitted that he had once made an effort to look at matters in an overall context. He said:
"I was a member of the backroom group known as the constitutional commission … I had responsibility for examining the electoral arrangements. I came up with a scheme that produced approximately 110".—[Official Report, 17/11/98; col. 1194.]
The Government, faced with how to implement that practically, seem to have founded their policy on the principle of coterminosity—perhaps the one constitutional principle that was voiced at the time. It was certainly good for transparency.
As the Committee knows, at that time the number of Scottish Westminster constituencies was 72. Coming up with the idea that a ratio of 1 to 1.3 additional seats under the de Hondt system would give the whole thing proportionality, they had what was in their view the temporary total of 129. However, allied to that was the reduction contained in the Scotland Bill to mirror the reduction in Westminster constituencies as and when they occurred. The intention of the noble Lord, Lord Sewel, was that that would run for two terms of the Scottish Parliament and that is what happened.
As the Committee will be aware, many other people, including the honourable Sam Galbraith, have said that the current number need not be permanent. It is perhaps interesting to note that the main time when the issue was discussed in the Scottish Parliament was 27 March 2002. That Parliament was very much younger than it is now and there was a feeling that it did not want to be disturbed. The approach taken by the Scottish Conservative Party was founded on rationalising the committee structure and reducing the number of Ministers. That was outlined by David McLetchie in his speech in March 2002. He said that,
"we should amalgamate the Audit Committee with the Financial Committee and the Standards Committee with the Procedures Committee, we should have a single and larger Justice Committee and we should amalgamate the Social Justice Committee with the Equal Opportunities Committee"
That still appears to be the view of the party in Scotland.
Up until June of this year, the Scottish Parliament had passed 65 Bills and "Seweled" 38 Bills on devolved issues back to Westminster; that is, 103 pieces of primary legislation. It has also passed roughly 1,700 statutory instruments and has issued innumerable consultation papers. I feel that I have received more than my share.
It is perhaps easy to argue that for legislating at that kind of pace they need all the members. It is never easy to argue that there are direct parallels between parliaments, but I wonder whether the Scottish electorate would be happy to know that the Province of Ontario in Canada, with twice the population of Scotland, has 103 members and eight committees. If the Scottish electorate reckons it is not getting value for money, to whom is it supposed to appeal? Perhaps the Minister can tell the Committee whether and how we should be concerned about these matters.
Amendment No. 4 is a probing amendment designed to find out why the date of the order is so important to the Bill. Will the Minister explain what happened after 11 April 1995 that would somehow render Clause 1(2) invalid?
Amendment No. 5 is consequential. If the number of directly elected members is reduced, the principle of the ratio requires that the proportional seats will also be reduced. As my noble friend Lord Monro said, the Bill will add a whole new level of confusion for the Scottish voters as well as an infinite variety of overlapping responsibilities for parliamentarians—constituency MPs, Westminster MPs, list MPs, and European MPs. I for one do not like the idea that constitutional issues are to be fiddled with constantly and modified. If transparency and accountability are to be major principles of significance, it is important that legislation is not changed too frequently. I beg to move.
Lord Filkin: In speaking to these amendments I shall provide the Committee with the information with which I so woefully failed to provide the noble Lord, Lord Palmer, in relation to the previous amendment.
The effect of Amendment No. 1 to paragraphs 1 and 2 to Schedule 1 would practically reduce the size of the Scottish Parliament to that originally intended in the Scotland Act, although it would create 108 MSPs rather than 106. For reasons which I believe are self-evident to the Committee, the Government are opposed to those changes because they would make the whole Bill completely nugatory and would completely defeat the intent of the Bill.
There is a limit to what I can add to what I have said on several previous occasions as to why we believe that there should be no change to the number of MSPs elected to the Scottish Parliament, but essentially there was a thorough and proper consultation process. I would imagine it was the normal 13 weeks of consultation. I am told that that is correct. A summary of the responses to that consultation was placed in the Library on 18 December 2002.
Many of the responses which supported keeping 129 MSPs were from civic bodies and political groups which are representative of a very wide range of interests in Scotland. A particularly significant response, which strongly supported keeping the Parliament at its present size, was submitted by a group called the 129 Reflection Group. That body was convened by the Centre for Scottish Public Policy under the chairmanship of Sir Neil McIntosh, a distinguished former public official in Scotland and included representatives of the Scottish TUC, the Scottish Civic Forum, the Scottish Council for Voluntary Organisations, Action of Churches Together in Scotland, UNISON, the Educational Institute of Scotland and the Scottish Council for Development and Industry.
Out of over 230 responses, only electoral administrators, a couple of civic organisations, the Scottish Conservatives, six MPs, four councils, a constituency organisation and less than a quarter of individual respondents supported cutting MSP numbers in line with the Scotland Act.

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Overall, there was clear support across Scotland for the policy the Bill seeks to implement. This was not a referendum. The Government have to make their own decision after they have consulted with civic society, but there was a fairly strong body of view from Scottish society in all its forms to leave its current 129 MSPs well alone.
On the issue of confusion to Scottish voters, the issue of non-coterminosity was explicitly raised in the consultation paper. Virtually no one raised the issue that retaining 129 MSPs was going to be a significant impediment. Having said that, people tend to change their emphasis a little after they have got what they want. Clearly, there is an issue to be looked at in terms of boundaries, which is why we have asked Sir John Arbuthnott and his independent commission to look at those issues and the potential multiplicity of voting systems in Scotland and to make such recommendations as appropriate.
I agree with the noble Duke, the Duke of Montrose, that we should not always make change too quickly, which is one of the reasons that we do not intend currently to make changes to the number of MSPs elected from Scotland to the Scottish Parliament.
I hope that is helpful. I feel that I can add little more.
Baroness Carnegy of Lour: Of course, I absolutely accept that what the Minister has said is factually correct. Does he accept that the figure of 129 is not a magic figure that has to be? It was arrived at by a process and is the figure which the existing MSPs are working to, since they all have seats and they do not want to lose them. We all understand that. I understand the argument for the Bill.
However, 129 is not a magic figure and will not necessarily be the one we end up with. This is a temporary measure. As I said at Second Reading, it was a temporary measure that was brought in by the Government's idea that they would have the Scotland Act as it was and deal with the awkwardness of what would happen when Westminster MPs were reduced when the time came. They decided to do that. I think it was the noble Lord, Lord Elder, who described how that came about. I was very interested in that.
So when the committee looks at the numbers the figure of 129 is not necessarily the one that we shall end up with. The fact that people said that the constituencies being coterminous did not matter is really not a good point. It matters very much indeed to anyone who is conducting the operation of democracy in Scotland. As someone who has played a certain part in that, having non-coterminous constituencies will be an absolute nightmare. With luck, the committee's recommendations will find a way of returning to coterminous seats. Then the whole thing may work.
However, I do not think that to say it is all right is a good argument. I would say to the noble Lord that it is only all right for the moment because there is no other way.
Lord Filkin: The noble Baroness, Lady Carnegy, is quite right. While I shall not be drawn on whether the
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figure of 129 is temporary, it was certainly not on the tablets when they came down from the mount. There is nothing God-given or ordained in that respect. The argument essentially is that at this point in time there is a clear consensus in Scotland, which the Government support, for not making a change to those numbers.
As to the issue of non-coterminosity, we have initiated a process which will allow anyone with an interest, particularly anyone in Scotland, to put in their views to Sir John Arbuthnott's committee as to where there is difficulty as a consequence of that. The noble Baroness is right, it is more of a problem to electoral administrators and political parties than it is to the general public. Nevertheless, there is a process and an opportunity for putting in views to that commission and we look forward to hearing its deliberations.
The Duke of Montrose: I am interested to hear the Minister's response. Perhaps he can understand our concern that the Scottish Parliament is going down this road. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.45 p.m.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 2:
Page 3, line 10, after "Islands," insert;—
"( ) the Western Isles,"
The noble Earl said: My Amendments Nos. 2 and 3 are aimed at granting the same protection to the Western Isles constituency as this Bill grants to the Orkney Islands and the Shetland Islands Scottish Parliament constituencies. To clarify the matter, the protection sought is protection from incorporation into a mainland constituency. In effect, my amendment applies constituencies Rule 3 now.
The Western Isles is of course the Long Island or the Outer Hebrides—a place which is, rightly, very different from mainland Scotland. The peripheral nature of the Western Isles is recognised by the European Union, which has, correctly, granted the special designation of an islands group to the Western Isles, along with the Orkney Islands and the Shetland Islands. Had the Faeroese decided to join the European Union, the Faeroe Islands would also have been an islands group for EU purposes.
These islands in the North Atlantic have their own special character and peculiar difficulties. They are of course—and I refer to the Western Isles and not the Faeroes—the Gaelic heartland, home of free Presbyterianism, Sabbatarianism, island Catholicism and of course are the other side of that difficult seaway, the Minch.
The Scottish Parliament needs to hear an undiluted message from the three island groups, which are so remote and unique. The islanders' lives do not match in well with the 5 million that the Scottish Parliament must try to understand.
I have considered whether the Western Isles could be incorporated into a constituency with Skye, Raasay, Cam, Rum, Eigg, Muck, Coll and Tiree. Although these are of course islands, I consider that the distant island group known as the Outer Hebrides, beyond the Minch, is sufficiently different from the other islands, which are usually known as the Inner Hebrides.
So, I hope that the Minister can assure the Committee that the United Kingdom Government recognise the particular circumstances of Lewis, Harris, Scalpay, the Uists and Benbecula, Berneray, Barra, Erinskay, Vatersay, Sanday, Mingulay, Pabbay, Barrahead and even the St Kilda group.
Noble Lords will recall that prior to the 1974 reorganisation of Scottish local government, these distant islands were divided between Ross and Cromerty, which administered Lewis, while the rest of the Long Island was part of Invernesshire. The creation in 1974 of the Western Isles Islands Council, Comhairle nan Eilean Siar, was the first step in the right direction towards island group recognition.
The Bill should similarly move to secure the constituency of the Western Isles. I beg to move.
Lord Monro of Langholm: The noble Earl, Lord Mar and Kellie, is asking for too great an insurance policy. No one has every considered, so far as I am aware, reducing the Western Isles constituency by adding on part of the mainland or islands in the Inner Hebrides.
I always thought it was a bit of a miracle—and a Liberal miracle at that—that Orkney and Shetland got two individual constituencies. After all, the population of Orkney is 19,245, and that of the Shetlands is 21,988. The combined population of just over 41,000 is way below the average of around 65,000 that Scotland is aiming for. The Outer Hebrides has much the same population—26,502.
I appreciate only too well the extent of the islands, the difficulty in moving around them, visiting constituents and so on. I am sure that the noble Baroness, Lady Michie, with her great experience of Argyllshire, will say that she probably had a much harder job than the Members for the Western Isles and Orkney and Shetland. It is all a matter of relativity. The amendment is unnecessary because Orkney and Shetland are already separate, and it would be wrong to make the Outer Hebrides or the Western Isles another special case. It will become more and more difficult. Nobody seems to intend to make any adjustment to the Western Isles, so the amendment is superfluous.
Baroness Michie of Gallanach: I support Amendments Nos. 2 and 3, in the name of my noble friend Lord Mar and Kellie. It seems only sensible and fair that the parliamentary constituency of the Western Isles, Eilean Siar, be given the same protection as Orkney and Shetland against incorporation into a mainland constituency. The noble Lord, Lord Monro, says that he has never heard any suggestion of that happening, but we
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do not know that it will not happen when Sir John Arbuthnott looks at the boundaries, so we must ensure that it absolutely does not happen.
With a population of some 26,000, the Western Isles is a large and complicated geographical area with a chain of islands stretching from the Butt of Lewis in the north to Barra in the south, approximately 130 miles. It has its own unitary authority, Comhairle Nan Eilean Siar, belatedly created, as the noble Earl, Lord Mar and Kellie, pointed out, in 1975 following years of mismanagement by various mainland authorities. Next year it will celebrate its 30th anniversary.
The area has its own health board and local enterprise company, it is responsible for tourist promotion, and the islands are rich in history and archaeology. However, it has an above-average rate of unemployment, and population decline is still a problem. But together with Highlands and Islands Enterprise, the University of the Highlands and Islands, Comhairle Nan Eilean Siar and its parliamentary representatives, great efforts are being made to establish a broad-based economy with strategies for renewable energy and limitation of pollution—for example, with the Western Isles Oil Spill Plan and a piers and harbours oil spill contingency plan.
There has been significant investment in jobs and job dispersal, broadband technology, housing action areas and so on. Nevertheless, the area remains economically fragile and is recognised in the EU as requiring economic assistance in the form of transitional status for Objective 1 funding. The need for sustainable development opportunities that combine economic, social, cultural and environmental concerns is widely recognised.
The Outer Hebrides is a powerful bastion of Gaelic life and culture in which the promotion of the Gaelic language through broadcasting and publishing is all-important. As I pointed out during the debate on the Communications Bill, Gaelic broadcasting is not the only matter affecting these islands reserved to Westminster; there are many more. So it is a must that Lewis, Harris, North Uist, South Uist, Eriskay, Barra, Vatersay and others continue to have their own parliamentary representation in Edinburgh and London.
Both representatives are Gaelic speakers and are in a unique position, able to understand and reflect the needs and aspirations of the people and to represent them properly to their colleagues in both Parliaments. That would be lost if the Outer Hebrides were lumped in with a mainland constituency. To do so would deprive them of a distinctive voice which would almost certainly disappear if they were represented by a mainland constituency, MSP or MP. Such a move would rightly be seen as a loss of recognition and a rejection of their unparalleled position in the UK. The islands have been through enough change over the years, and they have suffered, as has the whole highlands and islands area, in the years following the Treaty of Union.

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So the commission that looks at boundary changes and voting systems has here the perfect coterminosity, with the same local authority, Scottish Parliament and UK parliamentary boundaries. Therefore, I support the amendments; they will give the same advantages and safeguards as apply to Orkney and Shetland. Although I do not expect the Minister to accept the amendments, Sir John Arbuthnott's ad hoc commission will no doubt read what we have said. I support the amendments.
Lord Gray of Contin: If there were any danger whatever of Sir John's commission suggesting the incorporation of the Western Isles with a mainland constituency, I would be 100 per cent behind the amendment. But I agree with my noble friend Lord Monro that the amendment is unnecessary. I greatly enjoyed the speeches of both our colleagues on the Liberal Democrat Benches; they were a very good advert for the Western Isles. But they achieved no useful purpose, because there is not the remotest possibility of such a suggestion being made. If such a suggestion were made, I have little doubt that in Scotland and in this House we could create such a fuss that it would never get off the ground. I am sorry that, for that reason, I cannot go along with the amendment, although I agree with the sentiments behind it.
Lord Maclennan of Rogart: It may come as a surprise to the Minister that such concerns should be expressed in this debate, but in the history of the highlands there have been strange electoral linkages. At one time, Caithness was linked with the Isle of Bute, which was neither contiguous nor highland. It is not out of an excess of caution that the necessity of regarding the Western Isles as a distinctive unit for electoral purposes is advanced by my noble friend. The highlands and islands have been victim of very unwise reorganisations for electoral purposes in the past. In my judgment, the highlands suffer at present from the extraordinary phenomenon of being linked in one so-called local authority, notwithstanding the fact that the area constitutes almost half the land mass of Scotland. So if those of us who have some knowledge of these parts appear to be concerned that Sir John Arbuthnott's committee should not entertain any suggestion of this kind, I hope that with the knowledge of the history the Minister may be sympathetic.
8 p.m.
Lord Filkin: One of the hardships of being a Minister is that one's hard heart is so well known that those who are proposing amendments are pessimistic about any prospect of the Government's agreeing to them. However, they are right. On this issue I am with the noble Lord, Lord Monro, and I will explain why.
These two amendments seek to give the Western Isles a guaranteed Scottish Parliament constituency. This issue was considered in some detail during the passage of the Scotland Bill.
As my noble friend Lord Sewel pointed out at that time, there was a simple reason for putting in the Scotland Bill the provision for separate constituencies for Orkney and Shetland for the Scottish Parliament. This was because at that moment Orkney and Shetland
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formed a single Westminster constituency, and the Westminster constituencies were used as the basis for forming Scottish MSPs.
To provide for separate Holyrood constituencies for Orkney and Shetland, it was necessary to make that explicit in the Bill because of the way the building blocks of the Westminster constituencies constructed the electoral arrangements for Holyrood. There was no need to do that for the Western Isles because it was already a separate parliamentary constituency, and therefore there was no need to make that distinction. As was explained at that time, if we go down the road of defining this or that constituency as off-limits, one completely frustrates any attempt by the Boundary Commission to look at more rational ways of addressing it.
While it is no doubt theoretically possible that at some future date the Western Isles might be associated with another part of Scotland, that does not look likely. The Boundary Commission takes into account in its reviews special geographical considerations such as the size, shape and accessibility of a constituency. It also has regard to local ties when formulating its proposals. These are for good reasons. As the noble Lord, Lord Monro, signalled, I do not think that there is anything to fear with regard to the situation involving the Western Isles. The Boundary Commission for Scotland, as part of its fifth periodical review, published its final recommendations for the Western Isles county constituency on 21 August 2003. It recommended no alteration to the existing boundaries, although it did recommended that the name of the constituency should be changed to Na h-Eileanan an Iar county constituency. I shall go and take Gaelic lessons forthwith.
I think that I understand what was going on here. This was an attempt to both advocate the importance of the Western Isles to Scottish life and to UK life; and also a pre-emptive strike, in case anyone was mischievously thinking about anything worse. I understand that, but I do not think that noble Lords have much to fear in that respect.
The Earl of Mar and Kellie: I am grateful to all those who have spoken in this short debate. I admit that I am beginning to wonder what the purpose is of having an insurance policy. Should I pretend to myself that I was a good driver, would that prevent me from needing to buy an insurance policy? I do not think so. The Road Traffic Act would have some stern things to say to me about that. I certainly am happy to be accused of seeking too much of an insurance policy. The Western Isles are sufficiently unique to merit this protection. We know that in the 1880s these islands were so unknown that Lord Napier was dispatched with a commission to go and find out about them. I have read my way through the Napier commission report. Today, Scottish islands are in a numerical crisis, in that their populations as a whole have dropped below a total of 100,000 people. That may be mathematically significant, but it is not desirable. The islands should

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be given this protection. I thank my noble friend Lady Michie of Gallanach for her support. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3 to 5 not moved.]
The Duke of Montrose The Duke of Montrose moved Amendment No. 6:
Page 3, line 32, at end insert—
"( ) The Electoral Commission must submit to the Secretary of State the report under sub-paragraph (3) within three calendar months of the receipt of the report from the Boundary Committee under paragraph 5(3) or (4)."
The noble Duke said: In moving Amendment No. 6, I shall speak also to Amendments Nos. 9, 13 and 14. I will start with Amendments Nos. 6 and 14, which is consequential. In many cases, I have no doubt that the report of the Boundary Committee's review will be in line with the expectations of the Electoral Commission. In such circumstances, I would expect that the latter's report would be on the desk of the Secretary of State very smartly indeed. There may however be occasions on which unexpected factors arise, or previously unappreciated circumstances are uncovered. The Electoral Commission should not be placed in the position of causing a delay because it is in some way unhappy with the review.
We are considering here one of the linchpins of Scottish democracy, as we have heard. Whatever rules are finally agreed in terms of numbers of constituencies, numbers of voters per constituency, and whether Westminster and Scottish Parliament boundaries coincide, the application of these rules should be prompt. I hasten to add that they should be just as prompt for any part of the United Kingdom, but we are talking here about Scotland.
It has been a noticeable facet of recent government legislation that private citizens, companies, and small businesses are frequently given fairly tight timetables within which to respond to government demands. The application of such timetables to government departments has been absent from a number of recent Bills. I should not like to think that a similar oversight could happen here. The setting of the date 30 June 2010 should not be used to hold up necessary changes, the work for which has been completed many months in advance. It would not be fair either to MSPs, some of whom might be overloaded, nor to constituents, some of whom might be inadequately represented. Amendment No. 9 would clarify the chain of command and make clear that the Boundary Committee has no right to initiate investigations. The position, if I have understood it correctly, is similar to that of school organisation committees, which must reach a unanimous view on all matters of school reorganisation in their area, but which are not allowed to start the process by themselves. In the case of school organisation committees, their recommendations must have the unanimous agreement of all the groups that make up the panel. In the event that such an agreement is not forthcoming, the matter has to be referred to a government inspector who makes the final decision on what should happen.
Will the Minister tell the House whether there is any such get-out clause governing the operation of the Boundary Committee to prevent a situation where it fails to agree, or agrees with only a very small majority, after the Electoral Commission has referred a decision back to it under paragraph 5(4)(a) or 5(4)(b) of Schedule 1? I fear that without a get-out clause, unless there is a very clear chain of command, the Boundary Committee could hold matters up for a long time.
Finally, Amendment No. 13 probes the drafting. Either an Order in Council is made under this schedule or it is not. The idea that some sort of counterfeit could find its way into the system and be treated as genuine is enough to engender nightmares. That is particularly true when I read that such an order shall not be called into question—in other words, challenged—for any reason at all.
Logic says that it would not be possible for any one person or a number of people to produce a counterfeit and get it through the system. But there are those however who have either never heard of logic or who take a delight in confounding it. Until I heard it being broadcast, I should not have believed that the American civil aviation authority and the American military commanders could get in such a muddle over the shooting down of a hijacked aeroplane before it crashed into the Pentagon. Even in the past day we have heard about an investigation by Radio 5 Live, which suggests that there is a group of Zimbabweans who have been issuing permits on ministerial notepaper for people to stay in this country.
I truly believe that if a counterfeit order were to ever get through the system it must be possible to challenge it and to countermand it. I beg to move.
Lord Filkin: This group of amendments relates to the process for reviewing the Scottish Parliament's boundaries. The Schedule largely replicates provisions for the review of Westminster constituencies set out in the Parliamentary Constituencies Act 1986 and existing provisions regarding the regions in the Scotland Act.
I should pause at that point because on subsequent amendments we shall come to similar proposals that seek, in effect, to change in Scotland the fundamental principles of electoral review arrangements as set out in the Parliamentary Constituency Act 1986. For reasons that I hope the House will find self-evident and obvious, we do not believe, as a matter of principle, that we should do that. The electoral arrangements and the ways in which the boundaries of constituencies are reviewed separate from government—dealt with in the Parliamentary Constituencies Act—should not be changed for one part of the United Kingdom on the back of a specific piece of legislation, even when it is about such an important part of the United Kingdom—namely, Scotland.
The process for reviewing the Scottish Parliament constituencies set out in this Bill is therefore not significantly different from well-established practice. We can see no justifiable case for departing unilaterally from

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this accepted review mechanism, which will continue to operate in relation to Westminster boundaries. That is for very good reasons.
I do not believe therefore that it would be appropriate to revise through this Bill the current wider structure for reviewing parliamentary constituencies. Those are serious constitutional and democratic matters that should not be altered lightly. If the provisions, processes and rules that are currently in place require to be amended—I am not aware that they do—this should be done only following full consultation with the independent Electoral Commission and other interested bodies as part of a UK-wide review about how the process of reviewing the boundaries for electoral constituencies is developed.
Amendment No. 6 would require the Electoral Commission to submit its report on boundary changes to the Secretary of State within three months of receiving a report from its Boundary Committee. However, imposing such a timetable does not appear to acknowledge the commission's powers at paragraphs 5(3) and 5(4) to seek modifications of or to reject the committee's report, which may involve the carrying out of a fresh review. That clearly could take some time. Those powers are there for a purpose. Amendments Nos. 9, 13 and 14 are drafting amendments, which I am advised do not improve the Bill. Therefore, for those reasons—we shall turn to similar issues on subsequent amendments—we do not believe that in Scotland we should change electoral review arrangements that go to the heart of how electoral review arrangements are considered on a UK-wide basis. Therefore, I regret that I cannot support the amendment proposed by the noble Duke, the Duke of Montrose, and I invite him to reflect on withdrawing it.
Baroness Carnegy of Lour: I do not think that the noble Lord is going to tell us what the phrase "purporting to be" means. I am not sure whether it is an expression used in Scots law, because I seem to have seen it before. I do not see why taking it out and replacing it with the rather clearer wording suggested by my noble friend would not improve the Bill. Does "purporting to be" mean "pretending to be"?. Surely not.
Lord Filkin: I will check it, but I assume that the phrase takes its natural meaning from the Bill: "seeming to mean" and "appearing to mean".
The Duke of Montrose: That is the point which worries us; the exact meaning of the phrase "purporting to be", and the fact that there seem to be no method of appealing or reviewing what is "purporting to be". I am afraid I am not as familiar as the Minister with the Parliamentary Constituencies Act 1986, but I shall take this away and think about it. I shall read carefully what the Minister has said in response. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.15 p.m.
The Duke of Montrose The Duke of Montrose moved Amendment No. 7:
Page 4, leave out lines 4 to 11.
The noble Duke said: This is a probing amendment. Will the Minister explain how the Electoral Commission can be expected to recommend changes to two or more constituencies such that it obeys the constituency rules but does not result in a change in the number of constituencies in an area? Scotland, in common with parts of England, has seen both a population exodus and a population explosion over the years. There has been a decline in the number of young people staying in the area after school, while parts of the central belt have registered substantial gains.
These movements are mirrored in England by the critical expansion in the south-east and the decline in the north-west. I read in last Friday's Financial Times that London is expecting an 8 per cent population increase over the next 10 years. That will have an effect on us all so far as concerns the Westminster constituencies, because we have to meet the same criteria governing the average number of electors within a constituency.
That may not have quite the same effect in Scotland if this Bill becomes law, but I understand that in England there are shortly to be a number of boundary changes that will result in the creation of new constituencies in some areas and amalgamations in others. How can the Government be sure that a similar population movement will not require the number of constituencies to be amended between areas in Scotland? I beg to move.
Lord Filkin: The provisions in Schedule 1 to the Bill largely replicate the provisions for the review of Westminster constituencies set out in the Parliamentary Constituencies Act 1986, and the existing provisions regarding the regions in Schedule 1 to the Scotland Act.
Removing this provision would take away the power of the Electoral Commission to submit reports with respect to particular areas without waiting until its next general report, looking at the totality. However, it may be appropriate for such a review to be undertaken, which is why Parliament legislated in 1986 to this effect, because of sudden and significant demographic change that needs to be addressed in the short term for electoral purposes.
At times there can be significant reductions in population in some areas as a consequence of a major change made when an employer ceases to operate or, similarly, the construction of a new town or substantial housing development. These factors can have a significant impact on the electoral balance in an area. It is for those reasons that the Electoral Commission has by virtue of the Parliamentary Constituencies Act 1986 the power to carry out such reviews as it thinks necessary in between its major,

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overall reviews. Therefore these are necessary powers for the commission, and are consistent with the normal electoral review arrangements set out in the 1986 Act.
The Duke of Montrose: I think I pointed out that this was a probing amendment. However, I am still at a loss over how the Electoral Commission defines what is an "area". How does it define an area requiring either more or fewer constituencies owing to changes?
Lord Filkin: I do not pretend to be an expert on the processes of the Electoral Commission, but it would look at a whole range of issues in a particular area. It would consider the size of the local population, what are its affinities, and to what extent there appears within the existing electoral boundaries for the relevant area to have been a significant change, rendering it out of balance. The Electoral Commission would look at the whole range of issues we have touched on previously this evening—local affinities, where the work is and people's perception of what matters to them in terms of their local identity—when it addresses a particular area.
The Duke of Montrose: I think we have a slightly better understanding of this after the Minister's explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Duke of Montrose The Duke of Montrose moved Amendment No. 8:
Page 4, line 30, at beginning insert "Scottish"
The noble Duke said: Amendment No. 8 is grouped with Amendment No. 15. On page 1 of the Bill, there is reference to the payment of costs attributable to this Act "by Parliament". In the debate on Clause 3 stand part, I assumed from the context that this meant Westminster, and the Minister did not disagree. In line 20 of page 1, there is a reference to "Parliament", before which the Secretary of State must lay the Electoral Commission's report. Again, I assume from the context that this means Westminster.
References in a Bill to the European Parliament are, I think, always qualified as such. I feel that for ease of reference and the saving of time by countless numbers of researchers, local government employees and others, the Bill's architects should ensure that throughout the system "Parliament" means Westminster and otherwise, where it does not, it is qualified.
On Amendment No. 15, the English language is rich in its range and the alternative ways it allows one to say the same thing. Equally, it has a large number of words which are capable of different meanings in different contexts. I think that where a Bill makes reference to one month, it should, in fact, refer either to "four weeks" or to "one calendar month". By tabling this amendment, I am presuming that the Bill intends the meaning "calendar month", but I should be grateful if the Minister would confirm that I am correct. I beg to move.
Lord Filkin: I am pleased to confirm that the noble Duke is correct in his interpretation. While I shall not,
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as is my harsh way, concede to the amendment, 1 have some sympathy with him, because what is clear to parliamentary draftsmen and lawyers is not always quite so clear to the rest of us. With that preamble, let me explain why the amendments are unnecessary.
Section 126(1) of the Scotland Act already defines references to "the Parliament" in the Act as meaning the Scottish Parliament. Amendment No. 15 would add "calendar" before "month". That is also unnecessary, as Schedule 1 to the Interpretation Act 1978 already defines "month" as a "calendar month".
I therefore ask the noble Duke not to press the amendment. I have great sympathy with him, however, given that, at times, legislation needs to be drafted in a way that is hard for non-lawyers to unscramble.
The Duke of Montrose: I am a trifle disappointed by the Minister's response. It should not be necessary for people to bone up on one piece of legislation in order to know what another piece means. However, it is at least useful to have the Minister's explanation on the record for anybody who wishes to consult it on the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9 and 10 not moved.]
The Duke of Montrose The Duke of Montrose moved Amendment No. 11:
Page 5, line 29, leave out sub-paragraph (1).
The noble Duke said: In moving Amendment No. 11, I should like to speak to Amendment No. 12 as well. These amendments are concerned with the procedure for Orders in Council to be made under the Bill as set out in paragraph 6 of Schedule 1.
Amendment No. 11 is probing in nature but is designed to explore the wording of sub-paragraph (1). This explains that the draft of the Order in Council which gives effect to the Electoral Commission's recommendations,
"may make provision for any matters which he—
the Secretary of State—
"thinks are incidental to or consequential on the recommendations".
In the context of this schedule, it seems that this may be too broad a power. What sort of incidental or consequential matters are envisaged here? Can the Minister provide some clarity on what this provision is expected to cover, and why it is necessary? I imagine we will be told that it is all in the name of flexibility, but in these circumstances, it is worth while probing the need for such a provision.
Amendment No. 12 is a probing amendment. Is it envisaged that rejection by either House will come with a set of reasons which should guide the resubmission and thereby tie the hands of the Secretary of State in his redrafting? Will the process of withdrawing a draft Order in Council also involve the affirmative procedure in both Houses? If agreement to withdraw the draft is given by both Houses, will the Secretary of State be constrained to amend the draft only in respect of the areas that he has identified as being unsatisfactory?
My doubt arises from the following paragraph 6(4) which is a conditional statement and suggests that the Secretary of State may not be limited in his redrafting to matters already debated and, in a sense, agreed. If there is any latitude in the scope of the redrafting it should be done again by the Electoral Commission. I beg to move.
Lord Filkin: Amendment No. 11 would disallow the Secretary of State from making any incidental or consequential arrangements in relation to the Electoral Commission's recommendations on the constituency and regional boundaries for Scottish Parliament elections. However, it is necessary to keep such a power—a narrow and limited one—to ensure that the Electoral Commission's recommendations are implemented fully and effectively. It is necessary to have the capacity available to allow for any problems or inconsistencies arising from the recommendations to be rectified.
It should be noted that the procedures following the submission of a report to the Secretary of State by the Electoral Commission are again, in general, the same as those that apply following the submission of reports under the Parliamentary Constituencies Act 1986. However, the 1986 Act does allow the Secretary of State to lay a draft order giving effect "with or without modifications" to the recommendations contained in the report.
The present Bill, however, does not replicate in relation to Scottish Parliament constituencies the wider power to make modifications. Similarly, the power also fails to be removed in Westminster constituencies once the Electoral Commission takes over the functions of the Boundary Commission. The point is that the power in the Bill that allows the Secretary of State to make provision for matters that are incidental to or consequential on the Electoral Commission's recommendations is a much narrower and constrained power than the present one which allows him to make "modifications". This limited power is a sensible safeguard which I believe needs to remain in the Bill.
Turning to Amendment No. 12, paragraph 6(3) of the schedule allows the Secretary of State to redraft and relay an amended Order in Council where the original Motion for approval of the draft is rejected by either House. The amendment would delete this power and require the Secretary of State to,
"return the draft to the Electoral Commission for redrafting".
However, that misunderstands the process. It is the Secretary of State's responsibility from the outset to have the relevant order drafted, which would give effect to the recommendations in the Boundary Commission's report. It is therefore appropriate and necessary for the Secretary of State to have this redrafting power. The noble Duke, the Duke of Montrose, asked what matters would be involved. An example would be changes that electoral administrators may need to put in place to implement the boundary changes. In short, the powers of the Secretary of State are considerably circumscribed through this legislation away from the "with or
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without modification" under the 1986 power down to merely issues that are "incidental and consequential". Those are not powers at large, but ones that lawyers would inspect. Therefore, if the Secretary of State went beyond what was incidental or consequential, that would be open to a judicial review challenge that he had exceeded the power that statute gave him. I hope that that is helpful.
The Duke of Montrose: It was extremely important that we got some understanding of what the wording meant. The Minister was very helpful in that regard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 12 to 15 not moved.]
8.30 p.m.
The Deputy Chairman of Committees (Lord Brougham and Vaux): I am advised that the score in the football game is one all.
The Duke of Montrose The Duke of Montrose moved Amendment No. 16:
Page 7, line 39, leave out "100" and insert "400"
The noble Duke said: We seem to moving Along at quite a reasonable pace. It is just possible that the Minister will get the last 15 minutes of the match if we keep at it.
In speaking to Amendments Nos. 16 and 17, I should like to apologise for a mistake that cropped up during the tabling of the amendments, which, no doubt, numerous Members of the Committee will have spotted. We had intended that Amendment No. 16 should read,
"leave out '100' and insert '40—,
but somehow an extra zero has crept in where it should not. The figure should read 40, not 400. We are not being inconsistent in our approach here.
I hope the Committee will bear with me while I explain the nature of Amendments Nos. 16 and 17, which challenge the numbers involved in the bodies mentioned in paragraph 9, which deals with local inquiries. The phrase,
"a body of not less than 100",
indicates that there must be a cohesion of opinion. It will presumably not be sufficient that 90 residents of a village which is to be removed from one constituency to another and 13 residents of a town to which they are to be joined object. Under the terms as laid down, all 103 objectors would have to be presented as being in a single organisation, however transient. I am not sure what framework the Government see the body creating, but that may become clearer.
Similarly, it would not be adequate to have a total of several hundred objectors all in groups of fewer than 100. If that is so, it discriminates against the rural voter—which it could be seen as always being intended to do. Given the difficulties in this Chamber of getting 40 signatures, even with the organisation, clerical assistance and the proximity that we all enjoy, one can imagine how much harder it must be to obtain 40 signatures in a body when there is no system available to facilitate it.
As regards Amendment No. 17, the difficulty of organising a body of 100 signatories within a constituency is greatly compounded when the requirement is for a group of 500 within a region. The Committee is familiar with the saying that there are "lies, damned lies and statistics", but one could also add that numbers, particularly averages and percentages, can be used to bolster one argument against another, depending simply on how they are presented. For example, the first time that Scotland was given a chance of devolution, it failed because the turnout did not reach the required minimum percentage. The rules for running referendums for regional assemblies now demand only a simple majority of those who turn out to vote.
The requirement for 500 people to form a body making representations against the views of a boundary committee may ensure that there are few if any such protests. It is simply unacceptable that, within a democracy, an opposing point of view cannot be heard because of the difficulty of co-ordinating the presentation of that viewpoint. It is even worse if the subject under discussion affects the expression of choices and preferences of that democracy. I beg to move.
The Deputy Chairman of Committees: I am advised that the score is England 2, Croatia 1.
Lord Filkin: I am extremely grateful for the interventions from the chair on these issues. It helps us to understand what is going on while keeping our minds firmly fixed on Scottish matters. I am grateful, too, for the clarification that the figure in the amendment was meant to be 40 rather than 400. That helped us greatly to understand, because we found it difficult to see why the noble Duke was moving in opposite directions on the same issue at the same time. He is clearly not doing so.
I have two things to say in response. First, we do not think that the well established practice in the UK should be disturbed in that respect. My answer is similar to the one that I have given previously. The requirement in Section 9(4)(b) for a local inquiry to be held if 100 or more electors object to the Boundary Commission's recommendation is based on a requirement in the Parliamentary Constituencies Act 1986.
Reducing the numbers in the well established requirement would have an effect across the rest of the United Kingdom in relation to Westminster boundary reviews. We do not believe that would be appropriate—certainly not without full consideration by the Electoral Commission. It would seriously disadvantage constituents. It would create a lack of synchronicity and common standards in this respect.
The second reason why the Government resist the amendment is that we are not aware that there has in practice been a problem with these population thresholds. Although 100 is the number, the people do not all have to be of the same organisation. It requires 100 people to feel that the recommendation is wrong. That is all that is necessary. They do not all have to
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come from the same body or group. In our experience, electors and organisations are vigorous and vocal in making objections when they feel that there is an issue. So, for those two reasons, I fear that I cannot accede to the amendment tabled by the noble Duke.
The Duke of Montrose: The Minister is obviously very averse to anything that varies at all from the Parliamentary Constituencies Act 1986. In fact, he is saying that it should say that there should be 100 people. Introducing the question of whether they are a body creates quite a bit of confusion. I take his point but I think one could look at the numbers that we have used and see if there is a reason to come up with anything different. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 17 not moved.]
The Duke of Montrose The Duke of Montrose moved Amendment No. 18:
Page 9, line 11, leave out "71" and insert "the number of constituencies less 2 in existence at the date the quota is calculated"
The noble Duke said: It is a notable point that since the Scotland Act the total number of Westminster Scottish MPs is no longer fixed. If the fifth report of the Boundary Commission recommends that there should now be 59 MPs, there is nothing to say that it will always be so. Similarly, there may in future be some cause for the number of rejigged Scottish constituencies to be changed.
The Boundary Commission has not yet officially reported, although it appears that the report has been ready for some time. If Schedule 3 is approved, the Secretary of State will be empowered to ignore the recommendations of that report, in so far as they relate to the Scottish regions and their boundaries. The report has not, so far, been officially received. Its recommendations have not been set in stone. It is still possible that one or more of them may touch on regions. If the Bill comes unstuck, it is possible that the commission may recommend that the Scottish Parliament and Westminster have the same mainland boundaries for each constituency and therefore retain the same number of mainland MSPs to each place. It is likely that such a recommendation would not find favour in Scotland, nor possibly with the Secretary of State.
However, it is surely incorrect to anticipate the final outcome of the ensuing discussions and debates to the point of placing on the face of the Bill a specific number of constituencies. There may even be findings and arguments advanced in the Boundary Commission's report that result in a change to the existing constituency boundaries in Scotland, without the total number equating to that for Westminster. I beg to move.
Lord Filkin: In the Government's view, Amendment No. 18 is a consequential amendment, following from Amendment No. 1. Rule 2(3) in the Bill is required for the redistribution of seats in relation to Scottish Parliament consistencies. The electoral quota that is to

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be applied is obtained by dividing by 71 the total electorate on the enumeration date of all the Parliament's constituencies, other than Orkney and Shetland. As Amendment No. 1 has been withdrawn, it seems to the Government that this amendment, being consequential, should not be pursued and I invite the noble Duke not to press it.
The Duke of Montrose: I note the point that the Minister is making and, as a result, I shall withdraw my amendment and consider what the correct procedure should be.
Amendment, by leave, withdrawn.
The Duke of Montrose The Duke of Montrose moved Amendment No. 19:
Page 9, line 41, leave out from "be)" to end of line 44 and insert "shall have regard to special geographic considerations in the strict application of Rules 1 and 2 (including in particular the size, shape and accessibility of a constituency)"
The noble Duke said: This House and the Select Committee on Delegated Powers and Regulatory Reform have been consistently critical of Bills that give Secretaries of State huge regulatory freedom or very wide, almost indefinable powers. Here we have an agency that has been given carte blanche to follow the rules, or not to follow the rules, as it thinks fit.
I have been trying to envisage the Boundary Committee—and, beyond it, the Electoral Commission—at work. My impression is that the chairmen of such bodies wield enormous power. If the chairman ventures to opine that, "Such a matter is not relevant", many a committee will fall into line behind him. Even in this House and in another place I can think of chairmen—and not always men at that—with whom most Members will fail to disagree.
In order for either body to do its job with consistent openness and fairness it should have a duty to,
"have regard to special geographic considerations"
in all cases. I beg to move.
Baroness Carnegy of Lour: There is a quite interesting point about this, which doubtless the Government have considered. The smaller a Parliament is, the more it matters whether, to ensure fairness, there is an equality of votes behind an elected member. I understand very well why this provision is in the Bill, and I understand my noble friend's point. It is interesting, however, that one has sometimes to depart from fairness in order to accommodate different communities.
I think we have to bear that in mind when we are considering constituencies in any part of the United Kingdom. I was thinking about that when the Liberal Democrats were talking about the Western Isles. They who are so keen on proportionality were advocating a departure from proportionality even for St Kilda—which I do not think has anyone on it at the moment although it may have had one or two at one time and
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they may have been voters. 1 t is an interesting point. The smaller the Parliament is, the greater is the importance of equality of electorate.
Lord Filkin: I think that the reference by the noble Baroness, Lady Carnegy, to the earlier mention of the Western Isles is entirely relevant to this discussion. It makes the point.
The foundation of this power in the Bill is again round in our old friend the Parliamentary Constituencies Act 1986, which provides that a boundary commission may depart from the strict application of Rules 4 and 5. Those rules provide that regard should be had to local authority areas and that the electorate of any constituency shall be as near to the electoral quota as is practicable—the point made by the noble Baroness, Lady Carnegy, about trying to ensure an equality of votes behind elected members—if,
"special geographical considerations (including in particular the size, shape and accessibility of a constituency)",
appear to render a departure desirable.
So the noble Baroness is exactly right. The reason why Parliament gave the Electoral Commission and the Boundary Commission those powers in the 1986 Act was that a strict and absolutely slavish adherence to electoral equality would lead to what I might best summarise as a Western Isles type problem. That would fly in the face of what the public would think sane and sensible.
Amendment No. 19, which is connected with Amendments Nos. 21 and 22, would replace that currently permissive provision which allows the Electoral Commission or the Boundary Committee to depart from the strict application of Rules 1 and 2 if they think that special geographical considerations and so on render it desirable to do so. The amendment would replace that with a stronger provision requiring the body to have regard to special geographic considerations. However, if I have interpreted the effect of the amendment properly, it would place conflicting obligations on the commission or committee which it would not be able satisfactorily to resolve. That would not be a desirable outcome.
Further, as I signalled before, Rule 3 very closely follows a provision in the Parliamentary Constituencies Act 1986. I do not think that it is appropriate in this Bill radically to revise the well established and tested structure for reviewing parliamentary constituencies. If the rules that are currently in place require to be amended, and we are not persuaded as yet that there is reason to do so, this would need to involve the Electoral Commission rather than be done on the back of this more specific piece of legislation. I hope that that is helpful in terms of explaining why we think these powers are necessary and why this is not the place to make adjustments to them.
8.45 p.m.
Baroness Carnegy of Lour: Does the noble Lord nevertheless take the point that the smaller the Parliament, the more important it is to try to get that equality of electorates? Supposing there are only six members in a Parliament, and one represents 5,000

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and the rest 50,000, that one person's vote could affect affairs very much. One can extend that to 129. So the smaller the Parliament, the more important it is to get near to equality in votes. We have a problem in that regard in Scotland. I accept all that was said about the Western Isles, but it is an interesting point and something that one should bear in mind.
Lord Filkin: I well understand the point to which the noble Baroness, Lady Carnegy, refers. I am certain that the Boundary Committee for Scotland and the commission will be seized of those difficulties as they go about their task.
The Earl of Mar and Kellie: I should say to the noble Baroness, Lady Carnegy of Lour, that the island group of St Kilda has a military garrison of about 30 permanently running the radar station serviced from Benbecula. Certainly in terms of nature conservation, St Kilda needs to be represented, albeit that there may not be any permanent human residents.
The Duke of Montrose: It would be nice to think that my amendment could be carried. However, the Minister still sticks resolutely to the terms of the 1986 Act. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: If Amendment No. 20 is agreed to, I cannot call Amendments Nos. 21 or 22.
The Duke of Montrose The Duke of Montrose moved Amendment No. 20:
Page 10, leave out lines 1 to 10.
The noble Duke said: I have looked forward to moving this amendment as I understand that this is an area in which the Bill departs from the Parliamentary Constituencies Act 1986.
Rule 4 appears to be an attempt to produce a slightly racier version of paragraph 7 of the Parliamentary Constituencies Act 1986. This speaks of the Boundary Commission having "no duty" to give full effect. I should have thought that not aiming to give full effect is less instructive and produces something immensely confusing and nebulous. If the Government feel that they can justify a paragraph in this general area, I should then wish to move Amendment No. 21 which, if anything, strengthens the direction while still allowing a little discretion.
I speak also to Amendments Nos. 21 and 22. The comments that were made to Amendment No. 19 also apply here. It is helpful for the smooth running of a committee that the decisions it has to take be clear-cut and, in so far as is possible, follow an established pattern. It would be normal to follow Rules 1 to 3 unless they are incorrect or in some other way inadequate. I am sure the Minister will tell me that they are neither incorrect nor inadequate so the committee must normally follow them. There may be cases, however, when an exception is indicated so the committee must have freedom to incorporate that eventuality.
Amendment No. 22 is simply a drafting amendment and in itself is probably not fully correct as it stands, for which I apologise. We think that it would read better with the insertion of "Rule" after the second "to" on page 10, line 4. For the sake of clarity, if we completely changed the wording, at the next stage the line would read,
"Rule 1 to Rule 3".
I beg to move.
Lord Maclennan of Rogart: I rise to support Amendment No. 20, at least in so far as it is a probing amendment although in a sense it seems to me that it creates an extremely anomalous set of guidelines. As it is novel, it is worthy of slightly more protracted discussion.
The first duty imposed on the Electoral Commission or Boundary Committee under Rule 4 appears to be that they need not take any account or give full effect to the earlier rules, which were spelt out in such detail. It would be quite impossible for them to give full effect to all the rules, as some of them displace each other.
The second suggestion, in the first sentence of Rule 4, is that the Electoral Commission or Boundary Committee must take account,
"(so far as they reasonably can) … of the inconveniences attendant on alterations of constituencies other than alterations made for the purposes of Rule I. and … of any local ties which would be broken by such alterations".
That appears to elevate the discretion of the commission and the Boundary Committee in a way almost inconsistent with Rules 1 to 3.
It is hard to understand precisely what that is intended to achieve. Very few alterations on constituencies are unaccompanied by inconveniences. That is such a wide concept that it can scarcely be suitable to enunciate it as a rule. It is also very rare for alterations of boundaries not to affect local ties. Equally, that seems to raise the possibility of a discretionary use of a rule simply to follow whim. Rules ought to be rules in the sense that they give much clearer guidance than Rule 4 purports to do.
Lord Filkin: The effect of Amendment No. 20 would be to take away the duty on the Electoral Commission, when carrying out any review of constituencies of the Scottish Parliament, to take account of inconveniences following alterations to constituencies and local ties which would be broken. The noble Duke wondered whether the wording was of significance. I am advised that that is a mere drafting point. Nevertheless, I shall take it away, double check and confirm it to him. I believe that there would be the same effect; it is merely parliamentary draftsmen using slightly different language. Let me inspect what he said in Hansard, and I shall be pleased to write to him. I shall try to ensure that the letter gets there with more expedition than the previous letter that I sent to him.
The duty on the Boundary Committee had to be considered by the Boundary Commission for Scotland in its recent review of the Scottish Westminster constituencies. The provision exists to ensure that

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local community interests and other connections are given proper consideration—I underline the word—in boundary reviews, and that what might be somewhat artificial boundaries are not created as a matter of course. Rule 4 provides an important flexibility in the commission's deliberations and its deletion would be unwelcome to many constituents and electors. Issues relating to local ties are common ground for objecting to the commission's recommendations, for reasons that we can all understand, and we would not wish the House to add to those concerns. I am sure that there is no intention of doing so.
Let me have a go at unpicking the dilemma posited by the noble Lord, Lord Maclennan, on the qualification set out in Rule 4 saying that the Boundary Committee or Electoral Commission must take account of the inconveniences attendant and of any local ties that would be broken. He felt that that seemed to put the subordinates in a dominant position over the overall objective under earlier rules. I do not believe that the words mean that. I interpret "must take account of ' as meaning that they have to "give consideration to"—it does not mean that they have to "seek to resolve" automatically. It means that they have to reflect on and consider "the inconveniences attendant" or "local ties which would be broken", before coming to a final determination. Therefore, the subordinate clauses do not become dominant; the Bill merely says that the Electoral Commission or the Boundary Committee must have reflected on those matters before coming to a final conclusion.
Amendments Nos. 21 and 22 are related to Amendment No. 19 and the same issues also apply. I hope that that has been helpful, but I have promised to send a letter to the noble Duke, the Duke of Montrose, come what may, after further reflection.
The Duke of Montrose: I thank the noble Lord, Lord Maclennan of Rogart, for his support and the Minister for offering to take this matter away to consider the change of wording. This is one of those occasions when we all have to go away and consider what has been said. In that light, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 and 22 not moved.]
Schedule 1 agreed to.
Schedule 2 [Transitional modifications of Schedule 1 to the Scotland Act 1998]:
The Duke of Montrose The Duke of Montrose moved Amendment No. 23:
Page 11, line 2, leave out "must be ignored" and insert "is deleted"
The noble Duke said: In moving Amendment No. 23, I shall also speak to consequential Amendments Nos. 24 and 25. These are probing amendments that are designed to ascertain the special significance of ignoring, as opposed to the more normal deleting that one sees in schedules devoted to consequential amendments. Will the Minister explain the use of that phraseology in the Bill and why it would be incorrect to delete the offending sub-paragraphs?
The Boundary Commission for Scotland is about to disappear, so why must reference be kept to the Boundary Committee for Scotland, being construed as referring to the Boundary Commission for Scotland? Similarly, why does a reference to the Boundary Commission have to remain? I beg to move.
Lord Filkin: Schedule 2 makes transitional provisions to deal, if necessary, with the position before the Electoral Commission takes over the functions of the Boundary Commission for Scotland. That commission will cease to exist when the Secretary of State for Scotland directs by order that he is satisfied that the commission has no further functions to perform. The Government have indicated that the functions of the present boundary commissions will not transfer until after they have completed their current reviews.
The form of wording used was chosen because parliamentary counsel advised that these are modifications to the way that the schedule has effect—see Clause 1(2)—and that the approach taken is the appropriate one. I am sure that the noble Duke is aware that parliamentary counsel are extremely clever people who draft legislation for us. At times they are clear about the appropriate drafting. I should be happy, on reflection, to add anything further to that, but we are happy with the advice of parliamentary counsel who believe that the drafting is appropriate. The noble Duke's proposals are simply drafting amendments that would not affect the substantial thrust of the schedule.
Baroness Carnegy of Lour: That is not an answer. My noble friend asked a clear question regarding why the schedule is worded in such a way. To argue that parliamentary counsel said that that was correct is not an answer, is it?
Lord Filkin: It sometimes feels so, but I take the point. If I can add to my explanation, I will do better subsequently.
The Duke of Montrose: It appears that one of our difficulties is that we are in an interim period whereby either one law or another is in operation, depending on not necessarily the time of day, but the stage that the legislation has reached. I look forward to hearing whether there will be a further explanation from the Minister. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 and 25 not moved.]
Schedule 2 agreed to.
9 p.m.
Schedule 3 [Current Boundary Commission reviews]:
On Question, Whether Schedule 3 shall be agreed to?
The Duke of Montrose: It is widely believed that the report of the Boundary Commission for Scotland on the size of the parliamentary constituencies in Scotland has

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been ready for some time. The delay is, as I think the Minister was trying to explain, reportedly all down to the commission. I should be grateful if the Minister would further confirm that this is so, and tell us what action the Government propose to take to obtain the report and publish it.
The wording of this Schedule, if carefully read, hints that a very precise piece of timing is in the process of arrangement. The critical phrase seems to concern any report,
"which is submitted to the Secretary of State at any time before the passing of this Act."
This would seem to exclude any report which has been so submitted, without actually saying so. Perhaps that is one of the clever reasons why the Boundary Commission has not come up with anything. The part of the report which apparently gives offence is anything relating to regions and regional members, but the report has not yet been produced. If there is a reference to regions or regional members, then if the Secretary of State has laid a draft Order in Council before Parliament, that order must be withdrawn. But the report has not yet been produced.
I am sure there are people who understand what this is all about, but I should be grateful for a clear explanation from the Minister. Will he also explain the significance of paragraph 4 of the Schedule which seems merely to repeat paragraphs 2 and 3?
Lord Filkin: The central thrust of the question of the noble Duke, the Duke of Montrose, related to a previous clause when the noble Lord, Lord Monro, asked why the Boundary Commission was slow at reporting on the conclusions of its review on the number of Westminster MPs to be elected from Scotland. It is, I say once more with feeling, because the commission is operating under statute. The statute, for good reason, said that after the Boundary Commission for Scotland had completed its review of the boundaries and the numbers of MPs to be elected to Westminster from Scotland, and as there was a direct linkage between Westminster MPs and Scottish MSPs in the Scotland Act as originally constructed, it was necessary for that commission to look at the consequential adjustments that needed to be made to
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the regional list MSPs after they had made changes to the MP constituencies in Scotland for election to Westminster. The commission is sitting ready to conduct that review.
Of course, when—rather than if, I hope—we pass this Bill, there will be no need for the Boundary Commission for Scotland to review the regional list MSPs, because the Bill settles the number of Scottish MSPs at 129. Therefore, as soon as the Bill is passed, the Boundary Commission for Scotland, knowing that its statutory duty to review the regional list MSPs has been removed, will be able to report as soon as may be to the Secretary of State for Scotland on the reduced number of MPs to be elected from Scotland to Westminster.
As I have signalled on a number of occasions, there is a clear if complex link between this Bill and the earnest wish on all sides of the House to reduce the number of MPs elected from Scotland to Westminster as a consequence of the Scotland Act. That will be accelerated by this Bill, which will remove from the Boundary Commission for Scotland the burden of its statutory duty to review the regional list MSPs. That is the long and the short of it—perhaps more the long than the short—and it is why those of us who believe that it is right and fair to reduce the number of MPs elected to Westminster from Scotland—not a universal view in the other place—believe that this process needs to move forward as soon as may be.
I could address the more specific points, but that was the central issue behind the noble Duke's question. I fear that I have again gone to considerable length, but I hope that I have been clear.
The Duke of Montrose: I think that this brings out the rather interesting point that boundary commissions will never have to worry about list MSPs again, judging from the way in which the Bill has been phrased. They might have to worry about constituency boundaries, but the number of list MSPs will remain exactly as stated. I shall not press my opposition to the schedule.
Schedule 3 agreed to.
House resumed: Bill reported without amendment.
House adjourned at six minutes past nine o'clock.