Relevant documents: 20th Report from the Constitution Committee, 18th Report from the Joint Committee on Human Rights.

Clause 64 : Restriction of scope of regulated activities: children

Amendment 50A

Moved by Lord Henley

50A: Clause 64, page 51, line 24, at end insert-

"(2C) The reference in subsection (2B)(b) to day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned."

3:37 pm
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Lord Henley (Conservative)

My Lords, I shall speak also to government Amendments 54A, 54M and 54N; Amendment 50B, in the names of my noble friend Lady Hamwee and the noble and learned Baroness, Lady Butler-Sloss; Amendment 51, in the name of my noble friend Lord Addington; and Amendment 52, in the names of my noble friends Lady Walmsley and Lady Randerson.

Without wishing to reopen the debate that we had last week, I reiterate that we remain of the position that, where individuals can be properly supervised, they should in certain circumstances fall outside the regulated activity and the necessity for barred list checks. We believe that proper supervision should help to reduce both the risk of improper conduct and of inappropriate relationships developing.

As we have previously debated, the Government have said that enhanced criminal record certificates will continue to be available for activities that will be removed from regulated activity and which involve close contact with children when the scope of regulated activity is scaled back by Clause 64. In a school, that will include, for example, supervised volunteers who instruct children. Enhanced criminal record certificates include information on previous criminal convictions and cautions, both spent and unspent, and any relevant police information held locally. Therefore, organisations can, if they judge it necessary, see the information about behaviour that they need to see in order to reach a judgment on whether to use the person in a particular activity.

Even under the original barring scheme, the law did not require checks for various categories of people who were in contact with children. Organisations and communities must share responsibility for keeping children safe. The scheme was never intended to regulate contact with children outside a specified place, such as contact in a faith or leisure setting. Our intention is to provide additional flexibility for employing organisations and to help ensure that individuals are not dissuaded from volunteering. Such organisations as the Scouts and Girl Guiding UK have made the point that they prefer to supervise individuals when they first join, before barred list checks become necessary. However, as I said, there is no compulsion in the Bill for an organisation to provide supervision. Where it is unable to do so, activities will remain regulated and barred list checks must be made.

In Committee, a number of noble Lords expressed unease that the term "day to day supervision" lacked clarity and that, as a result, employers and voluntary organisations would have difficulty in deciding whether an employee or volunteer fell within the scope of regulated activity. We listened very carefully to these arguments and now aim, through the government amendments, to provide greater clarity on the level of supervision required for someone to fall outside the scope of regulated activity. Under the amendments, the level of day-to-day supervision must be such as to be,

"reasonable in all the circumstances for the purpose of protecting any children concerned".

By adding this qualitative description of the level of supervision required, the amendments, coupled with the statutory guidance we are already committed to providing, address the points raised in Committee.

At that stage, and again today, we heard about the particular circumstances of various types of sport, where adults often coach children in extensive playing fields or other wide-open spaces. The requirement that supervision must be,

"reasonable in all the circumstances",

will give sports organisations precisely the discretion they need in order to decide whether, in the circumstances of their sport, a volunteer-or indeed paid-coach or other helper should be supervised. If organisations want to encourage volunteers without requiring them to undergo a barred list check, they may do so, as long as they work out what would be a reasonable level of supervision in their case, and provide supervision accordingly. If on the other hand the organisation decides that the oversight it provides does not amount to supervision that is reasonable for child protection, it may conclude that the coach is not supervised and so is in regulated activity.

I have already mentioned that we will supplement the provisions of the Bill with statutory guidance, which will further contextualise what we mean by day-to-day supervision. Clause 77 already places a duty on the Secretary of State to provide such guidance, and we are committed to consulting on the form of the guidance. I had hoped to circulate a first draft of the guidance before today, but alas that proved impossible. I hope that the House will understand that it is important to get the guidance right rather than to rush it. We will certainly seek to get a draft out for consultation as quickly as possible.

The Criminal Records Bureau is also committed to producing clear and specific guidance on the new updating service for registered bodies, employers and applicants. While I cannot specify the precise timescale, we have started engaging with stakeholders to understand their requirements, and will continue to work with them to ensure that the guidance produced meets their needs and is communicated effectively. This will be complemented by guidance being developed by the Criminal Records Bureau, which will include advice on just how the current service may be used and an online tool which will enable employers and applicants to understand when a criminal records check is appropriate. In addition, the Government will also be issuing guidance on the broader safeguarding issues.

Given what is already in Clause 77 and the commitments I have made, I shall say a brief word or two about the amendments tabled by other noble Lords that we will also be discussing. I hope that my noble friend Lord Addington will not mind if I anticipate his remarks about Amendment 51 and put it to him that, in relation to that amendment, the ground is already sufficiently well covered. The provision in Clause 77 goes further than Amendment 51 as that clause also places a duty on regulated activity providers and personnel suppliers to have regard to the guidance. In relation to the other guidance to which I have referred, issued by the Criminal Records Bureau, there is not the same duty to have regard to the guidance, but we would encourage all organisations working with children to do so, and we believe it would be in their interests, and those of the children in their care, to do so.

I move on to Amendment 50B, tabled by my noble friend Lady Hamwee. She is seeking to probe what we mean by "in all the circumstances". The intention of this wording is that local managers judge the appropriate level of supervision based on the risk of harm to children in a particular setting. Where they judge that risk is lower, they may supervise less. Where it is higher, they would supervise more. That is what is meant by "in all the circumstances". Managers on the ground should always decide in the first instance what to do in any particular case. This phrasing supports them by offering a yardstick for making that decision. It also prevents them using scarcity of resource as a reason for supervising less than would be deemed reasonable in their case, so it is,

"reasonable in all the circumstances",

which is quite a change from "reasonable" on its own.

I would also like to say a word or two about Amendment 52, tabled by my noble friend Lady Walmsley. It seeks to bring within the scope of regulated activity all those who work in a further education college where any children are studying. It is important to bear in mind that all teaching and non-teaching staff in establishments, including FE colleges, that wholly or mainly provide full-time education to children remain within regulated activity and therefore will undergo a barred list check at entry. In addition, unsupervised teaching, training, instruction, care and supervision of children in FE colleges remain regulated activity, even where the college is mainly for adults. This amendment would go further and bring into regulated activity all work by any staff in FE colleges which provide education to even a very small number of children. As I said in Committee, we believe it is disproportionate and unnecessary to require such individuals to be subject to the same level of checks as those working in an institution wholly or mainly for the full-time education of children, such as a primary school or a nursery.

The Government do not consider it proportionate for the state to require or allow barred list checks generally on activities that entail only incidental contact with children. My noble friend will, no doubt, have more to say about this in due course, but I appreciate the legitimate concerns of the FE sector that it needs suitable safeguarding arrangements. The precise boundaries of eligibility for enhanced criminal record certificates in FE colleges have yet to be finalised, and we will certainly consider ensuring that staff with access to children in FE colleges will be eligible for enhanced certificates. This can be achieved through regulations in due course. It should ensure that employers in FE colleges can continue to receive relevant information on which to make an employment decision, as enhanced certificates detail all criminal convictions and cautions and any relevant local police information.

My noble friend's amendment possibly goes a little too far. I hope that my noble friend will agree that the steps we have taken and are considering are a more appropriate means for our common goal, which is to have proper safeguards for children who study at FE colleges.

Obviously it will be for my noble friends to consider their amendments when they come to move them. At this stage, I would like to move the government amendment and listen to the comments from my noble friends and others about both the government amendments and their own amendments. I beg to move.

Amendment 50B (to Amendment 50A)

Moved by Baroness Hamwee

50B: Clause 64, line 3, leave out "in all the circumstances"

3:45 pm
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Baroness Hamwee (Liberal Democrat)

My Lords, as the Minister has explained, my Amendment 50B seeks to understand precisely what is meant by his Amendment 50A. I welcome the direction in which the Government are moving, and I hope that I will welcome the guidance as well. As he said, this issue caused some unease among noble Lords in previous debates, and there were some very powerful and very knowledgeable contributions on the last occasion.

My amendment would take out the words "in all the circumstances". There has been reference not only to unease but many times to balance, which in a number of places in this Bill has been the approach taken. However, concern has been expressed that balance in this context may be more dangerous than we would like to think. I am not clear what is meant by "the circumstances" here. Is it a balance between what is required for the protection of children and the burden on those who are supervising?

The Minister has said that it means more than simply "reasonable", and qualifies it-of course, "reasonable" is a qualification in itself. My concern, as he has anticipated, is that to add "in all the circumstances" would reduce the degree or quality of supervision required. It must mean something, otherwise it would simply say "reasonable". I do not think it adds; I fear it may detract. He has explained that it requires local managers on the ground to judge the risk-I think I am right in saying-in the circumstances of the particular activity. It still seems to me that "reasonable" alone would do the job. My amendment looks for confirmation that "in all the circumstances" is not a reference to the burden on those who supervise or who might supervise.

I started by saying that I welcome the direction in which the Government are moving, and I would hate this phraseology to take us backwards from that. I beg to move.

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Baroness Butler-Sloss (Crossbench)

My Lords, I have put my name to this amendment to the amendment. First, I apologise to the House and the Minister for not having been here at the beginning of his explanation. I share the concern of the noble Baroness, Lady Hamwee, about the use of the words "in all the circumstances". Either it is reasonable or it is not reasonable. People will wonder whether "in all the circumstances" adds something to "reasonable" that might not be entirely clear.

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Lord Addington (Liberal Democrat)

I shall speak to Amendment 51, which stands in my name. Unfortunately, my noble friend Lady Heyhoe Flint is unable to be here. I am afraid that she is going through a learning curve on this Bill and has learnt the great rule about parliamentary procedure in the Lords that it does not matter how late you stay, sometimes the proceedings just will not get to your amendment.

I thank the Government for what they have said. They have listened to the concerns brought to me through the Sport and Recreation Alliance, which represents all the major sporting bodies. Its concern will probably be mirrored in every body that deals particularly with children and virtually any vulnerable group: that is, we do not exactly know how much authority a person will have over a child, which will change with each sport or activity over a period of time. If you are helping a dancer with flexibility or strength work, it is slightly different from assisting with strength work for a young shot putter. There will still be a very intimate level of interaction and a degree of authority.

Giving those bodies in charge the chance to interact with the Government and to make sure that there is a two-way dialogue means that there will be a better chance of getting this right. I thank the Minister for what he has said and for all the work that he has done on this. However, will he give an assurance that this will be updated periodically? Training techniques in virtually all sports change. Philosophies of engagement with groups of youngsters have certainly changed dramatically and will probably change again. A degree of change and a continuation of flow of information would be good, and what the Government have done is good. It addresses virtually all our points.

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Baroness Sharp of Guildford (Liberal Democrat)

My Lords, I regret to say that my noble friend Lady Walmsley is unable to be here today and has asked me to speak on her behalf on Amendment 52. The Minister has already mentioned this amendment. I take it from when he talked about the fact that the situation in further education colleges has yet to be finalised, and that the precise application can be ensured in regulations, that there is still some room for manoeuvre.

I should like to take up the two letters that the Minister wrote to my noble friend on 11 February and the other to my noble friend Lady Randerson on 1 February. I believe that it has been circulated to noble Lords. We are anxious that further education colleges should be treated in the same way as schools and that every full-time, and to some extent part-time, member of staff should be subject to the same vetting and barring rules. We were arguing that the staff should have a statutory CRB check. My noble friend has made the point many times as to the illogicality of the two types of institution being treated differently, but I will not dwell on that.

In his letter to my noble friend Lady Randerson, the Minister says:

"We do not consider it is right that, apart from special circumstances such as those applying to fostering and adoption, barred list information should be available in respect of posts which are not themselves subject to barring. This would effectively provide barring information to employers which is not relevant to the post and could lead to disproportionate and detrimental decisions".

My noble friend Lady Walmsley and I do not agree that this information is not relevant to the post. We believe that it is relevant to the post if the employer thinks it is: in other words, if the employer thinks that the post, albeit not a regulated one under this Bill, would give the employee an opportunity to develop a relationship of trust with a young person.

Perhaps I may set out a fairly recent example of this, which has been sent to us by the Association of Colleges, involving a caretaker,

"Dismissed for unacceptable conduct towards students aged under 16 years. The issue was reported to the College by the parent of a student who had been told by her child about a man who was known as 'the pervy caretaker' among students at the College. The conduct included inappropriate communications with students on social networking websites; inappropriate text messages to students; meeting-up with students to 'hang out' with them, including in pubs where the students were drinking under age. After an investigation the caretaker was dismissed and the matter referred to the Independent Safeguarding Authority"

This illustrates a point that came up in our discussion last Monday on the amendment tabled by the noble Lord, Lord Bichard. Someone who does not necessarily have teaching contact with children may nevertheless have daily or near daily contact with them. The children see the person around the place and develop trust in them. That person can then pursue them in other circumstances.

Towards the end of the same letter to my noble friend Lady Randerson, the Minister tries to reassure us by telling us that in those circumstances, when appointing someone to a role that used to be in a "controlled" category but is not now, the employer will be able to get hold of the enhanced CRB check. The Minister emphasises that this check will contain not only criminal records information but local police information. That is all very well, but only if previous employers with sufficient cause for concern to refer the matter to the Independent Safeguarding Authority had at the same time informed the police. However, the Minister will know that that does not always happen.

More seriously, I point out to my noble friend that, in providing this information to the employer and leaving the decision to him, the responsibility for a decision that is currently made by expert members of the Independent Safeguarding Authority is transferred. People are trained and appointed to the authority especially for their ability to analyse the risk inherent in the behaviour that is reported to them. There is a considerable risk in leaving it to the employer. Not all employers understand these things as well as the expert members of the Independent Safeguarding Authority. Indeed, what was then the Independent Barring Board was set up in the first place to take these decisions away from Ministers who, until about 10 years ago, had to take the decisions themselves but who did not have the expert knowledge to do so. The decision-making was given to people who do have that knowledge.

Now the Government want to hand these decisions over to people who are amateurs, and not satisfied with the transference of responsibility they also plan to transfer to the employer the decision as to whether the supervision of such an employee, to quote the Minister's own amendment,

"is reasonable in all the circumstances for the purpose of protecting any children concerned".

If that is so, it could be suggested that most college employers will decide that it is simply not possible to provide that level of supervision since the majority of abuse does not take place on the premises but elsewhere-what is called "secondary access". The employer cannot be vigilant in the youth club, the sports shop or the leisure centre because he is not there. If an FE college employer decides that in the light of the opportunity for secondary access he is not able to provide supervision that,

"is reasonable in all the circumstances for the purpose of protecting any children concerned",

can he designate the role as a regulated one and therefore ask for and be given the barring information as well as the enhanced CRB check? If that is the case, the Association of Colleges, which is so concerned that it has asked us to pursue Amendment 53 through to Report, may be satisfied, even though it is being asked to be as expert as the IBB.

Will the Minister clarify his initial statement about there still being some flexibility in regulations, and answer the specific question as to whether there is some ability on the part of the employer to ask for the enhanced CRB check and the IBB information?

4:00 pm
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Lord Bichard (Crossbench)

My Lords, I do not want to detain the House by repeating any of the points that I made in speaking to Amendments 53 and 54 the other evening, but I do not think that we have yet reached an entirely satisfactory outcome on these issues. I welcome the Minister's commitment to further discussions, which he has repeated to me since that debate. I hope that we will able to have those discussions before Third Reading, because I think there is continuing unease about this issue within the House and among children's charities and the wider public.

Although I know that we trying to reduce bureaucracy, I am beginning to worry that we are in danger of making an extremely complex system even more confusing by the way in which we are distinguishing between places, whether they are specified or not, and between organisations-we have heard the distinctions drawn between colleges and schools and between paid and unpaid workers. I hope that we can perhaps move to a much simpler statement. The amendment may not be the right form of words, which is why I welcome the further discussions, but I would like to think that we could say quite simply that all organisations employing adults, whether paid or unpaid, to work regularly with children, in whatever settings, should be able to carry out enhanced CRB checks, and that should be recommended by the department as good practice. Regulated activities and the barring system are an additional protection, but we should have a basic position which ensures that anyone working with children regularly can be checked by the organisation, because that is the only way in which an organisation can be sure that it is doing all it can to reduce the risk to that child. My concern will always be how we reduce the risk to the child, rather than how we drive down the bureaucracy.

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Lord Harris of Haringey (Labour)

My Lords, I want to say how much I agree with the noble Baroness, Lady Sharp, but I would want to go a little further than she did. She was applying her remarks very much in the context of colleges and so on, but the principle applies to a younger age group as well. I hope that when the Minister responds to the noble Lord, Lord Bichard, and, I hope, indicates that further discussions can take place before Third Reading, he will consider the points that have been very clearly made.

The Minister has talked about the importance of proper supervision in reducing the risk of improper conduct. He said that it would also reduce the risk of improper relationships developing. The real difficulty in this category is that there will be individuals who have not been checked who will be in close, regular contact with children. They will be supervised, so nothing untoward can happen in that context, but something may happen elsewhere. A relationship may build up. The noble Baroness, Lady Sharp, talked about relationships that were pursued in pubs, with underage drinking, but with younger children the context could be very different. It could be a kick-about in the park or whatever. That is where the difficulty arises.

When we debated these issues the other night, the Minister talked about the proper role of parents. I do not think anyone here doubts that parents have an incredibly important role in this, but parents' main message to children is about stranger danger, and these individuals are not strangers. They are individuals whom the child or young person meets in the context of what is regarded as a secure and safe setting. When the Minister responds, I hope that he will address that issue and how we might take it forward. Can he give us some indication as to whether his concept of supervision includes some means of ensuring that contact is not developed outside, whether by way of e-mails, Facebook or anything else?

Also, there has been a lot of discussion that has muddied the waters about enhanced CRB checks and checks using the information available to the Independent Barring Board. The reality is that 20 per cent of those who are on the lists maintained by the Independent Barring Board have not been through the criminal justice system, so they will not show up through those criminal record checks. The point that has been made about providing a facility whereby colleges, schools or youth clubs can ask if they think it is appropriate for those checks to be made does not necessarily go far enough unless you are able to take on board the issue of the information that is held by the barring authorities.

Nobody is pretending that these are simple issues, but I hope that when the Minister responds he will recognise that they are issues that need further work and that we can try to get this right before Third Reading.

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Baroness Randerson (Liberal Democrat)

My Lords, the amendment that stands in my name refers to further education colleges. I am afraid that it is an inadequate amendment because it refers to FE colleges and to children. The principles that I will talk about refer equally to sixth-form colleges, which are a separate category, and to vulnerable adults. The principles are exactly the same there.

I thank the Minister for the careful consideration that he has given to the issues that my noble friend Lady Walmsley and I have raised with him. I also thank him for his very helpful letter. I am grateful that he has agreed to a further meeting before Third Reading. My noble friend has already quoted extensively from that letter.

When I met the Minister, I used two examples of people who would not be in a position of supervision, but who would be in a position to build up a relationship of trust, as the noble Lord, Lord Harris, has just mentioned. One would be a learning assistant. Such assistants are in constant contact, but they are virtually never in a position of supervision. It was pointed out to me by the Minister that if they were dealing in any way with care for young people and vulnerable students, they would be subject to vetting and barring. But not all are in that position by any means.

My second example was used extensively last week in debate here in the Chamber-that of IT assistants. Noble Lords need to understand how teaching and learning take place in a modern further education college. I spent 23 years teaching in further education. It is not a simple, classical situation. A great deal of learning takes place, for example, in a learning resources centre, where there might be between 50 and 100 computers. There would be a supervisor-who would be the librarian or the learning resources administrator-but there would be an IT technician there to help. I can assure noble Lords that young people aged 14 to 16 develop a close relationship with IT technicians and regard them very highly indeed. It is that kind of position that could be exploited. Young people do not understand who is in charge-they relate to the people who are friendly with them, have a lot of contact with them and help them. They could not care less who is the boss in the set-up. We have to be very clear that, as the noble Lord, Lord Bichard, mentioned just now, that makes the situation very complex when we are dealing with this kind of problem.

The Government offer reassurance that enhanced criminal records checks and certificates will be available for posts previously covered by the definition of regulated activity but that now fall outside it. I am very pleased that the Government have agreed to consider including staff in further education colleges dealing with children as requiring enhanced certificates. If they decide to do that, it will be in regulations in due course. However, that does not by any means solve the whole problem. It does not deal with the basic point, which is that schools, sixth-form colleges and further education colleges should be treated in the same way. There is no logical reason why they should not be, because there is such an overlap between them.

If schools, for example, have a more stringent regime than colleges, the clever and devious people who target young people will look to the colleges to get the kind of employment that will enable them to establish a position of trust with vulnerable young people, rather than working in schools. This puts colleges at a disadvantage.

In his letter to the noble Baroness, Lady Walmsley, the Minister points out that employers will still be able to request enhanced CRB checks, and that in most cases this will contain the information that led to any barring decision. However, we know-as the noble Lord has just reminded us-that there is no police record in one in five cases of barring. Therefore, the enhanced CRB check will not throw up that situation. In the example my noble friend gave just now, the "pervy caretaker" does not have a police record, so it would not come up on an enhanced CRB check.

The Minister said in his introduction that it would be disproportionate to put this burden on further education colleges because they deal primarily with adults. However, they deal of course with many vulnerable adults, who should be considered in the same category as young children. They also deal with many thousands of children. Further education colleges are extremely large-although you might say that only 0.5 per cent of their students are 14 to 16 year-olds, that is a very large number of young people. I have done a little asking around in the last few weeks, and found that most colleges have at least 100 young people in that category coming into their premises on a weekly basis. That number is larger than for many primary schools, yet we are saying, "Of course, primary schools have to have this protection", while young people in further education colleges will not have the same level of protection.

I urge the Government to take these issues on board and to think again. The noble Lord, Lord Bichard, proposed half a solution. There is further work to be done, but it is a very good start to how we look at this for the future, and I look forward to the opportunity of meeting with the Minister prior to Third Reading.

4:15 pm
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Baroness Royall of Blaisdon (Labour)

My Lords, I am grateful to the Minister for his amendments. The Government have taken some steps towards what is needed, but as has been clear from the well informed discussion that we have had this afternoon we are, as the noble Lord, Lord Bichard, said, not there yet. All the arguments have been made powerfully. The own experience of the noble Baroness, Lady Randerson, is invaluable and I was going to say that I very much supported Amendment 52 but, as she herself said, it would need to include vulnerable adults and not just children. I would simply ask the Minister two things. First, in relation to his own amendments, the Minister mentioned guidance. I realise that the guidance is not ready yet, but when it is forthcoming it will be extremely important for the safety of our young people and children. How will this House be consulted, and will we have an opportunity to debate and discuss that guidance?

More importantly, I was very taken by the suggestion of the noble Lord, Lord Bichard, with its very simple solution to a complex problem. Will the Minister consider that proposal? Will he also confirm that he will have further discussions with the noble Lord, the noble Baroness, Lady Randerson, and others and that he will come back to this House at Third Reading with what I hope will be a solution to a problem that should not be intractable but which, as the noble Lord himself said, has to balance bureaucratic impediments and risks to the safety of children? Where the safety of children and vulnerable adults is concerned I urge him always to err on the side of safety and caution, rather than on diminishing bureaucracy. I realise that bureaucracy can be and is a problem. However, where the safety of children and vulnerable adults is concerned we have a duty to err on the side of caution.

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Lord Henley (Conservative)

My Lords, I thank the noble Baroness the Leader of the Opposition for her remarks, particularly for her endorsement of our search to strike a balance. We are trying to do that. I echo her comment that we are not there yet and I would endorse that. We had quite an extensive debate on this late on 6th February, and no doubt we will have further discussions on this matter at Third Reading. I want to make it clear that I look forward to those discussions. Also, in response to the remarks from the noble Lord, Lord Bichard, I would certainly welcome further discussions with him and others between now and then. It is important that we get these things right in due course and make sure that the right Bill becomes an Act on the statute book, and that we get the right guidance. I give an assurance that there will be further discussions and that my door, as Ministers always say, will be open as much as possible.

I also agree with the noble Baroness, Lady Royall, that it is very important that we get the guidance right. However, I cannot give any assurance as to when we will get it, and I am not sure whether I will be able to get it before Third Reading. As for how this House will be able to debate that, I imagine that the noble Baroness and the usual channels will find a means of ensuring that it is debated in the appropriate manner in due course.

I shall deal with some of the points relating to the three amendments, having given those introductory remarks following my moving of my own amendments. First, Amendment 50B was moved by two lawyers, my noble friend Lady Hamwee and the noble and learned Baroness, Lady Butler-Sloss, who questioned the use of "in all the circumstances". Getting such eminent legal advice thrown back at me causes me some alarm. I am asked just what the phrase means. I think back to the days when I did my Bar exams-the stuff about "reasonable", "the man on the Clapham omnibus" and all that. It seems quite obvious that "in all the circumstances" qualifies "reasonable" in a manner that should be suitable for the people who have to operate this Act, as it will become.

If I may put this in a sporting context, to make it easier for my noble friend Lord Addington, obviously the circumstances will vary whether you are supervising rugby training over a whole area of different rugby pitches according to the different forms of training that are necessary or whether it is boxing. The circumstances will change according to what is being supervised.

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The Bishop of Chichester (Bishop)

My Lords, the problem with the phrase is entirely in the word "all". The Minister mentioned the man on the Clapham omnibus. "In all the circumstances" sounds very different from "in the particular circumstances". We are striving to tailor the application of the principles to particular cases. "In all the circumstances" sounds as if it weakens the case.

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Lord Henley (Conservative)

My Lords, with all due respect, as one always says to right reverend Prelates, I think that "in all the circumstances" sounds better than "in the particular circumstances". However, I am prepared to take advice from parliamentary draftsmen and other lawyers on whether they think the two expressions have a different meaning or whether "reasonable" on its own would be different. I have a sneaking feeling that we have set a fox running here that we are getting overly worked up about. I see the noble and learned Baroness, Lady Butler-Sloss, laughing at this; if she were interpreting this in a court of law, she would find that "in all the circumstances" was relatively easy to understand and was quite a good qualifier of "reasonable". I certainly do not think that it detracts from the word "reasonable". I hope that the House will accept the amendment, but if others want to come back to it at Third Reading, I am more than happy to continue that debate. I hope that that deals with the probing amendment, as I understand it was, from my noble friend Lady Hamwee.

I turn to the amendment from my noble friend Lord Addington. Again, I was grateful that he welcomed what we were doing. I think that he wanted some assurance that the guidance will be kept updated in due course. I can give that assurance; there is no point in having guidance that stays cast in stone for many years, like the 10 commandments-actually, they serve us quite well. Colleagues in the Department for Education and other departments will want to ensure that it is kept updated in the appropriate manner at the appropriate time.

I turn to the amendments in the name of my noble friend Lady Walmsley, to which my noble friend Lady Sharp spoke, relating to FE colleges and the question of why they could not be treated the same as schools. I do not want to repeat everything I said in my opening remarks, but I can give some sort of assurance that we will look again-this is important in terms of further discussions-at the idea of enabling FE colleges to obtain an enhanced CRB certificate. We would not necessarily put everyone who works in an FE college into regulated activity, which we consider disproportionate, but we could consider giving them the power to look at where it might be possible to do that. Again, that could be part of the discussions that I hope to have over the coming weeks. I think it is still a matter of weeks before we get to the Third Reading of the Bill.

With the assurance that discussions will continue and we want to get this right, I hope the House will be prepared to accept the amendments that I have tabled here. I hope that we can have further and profitable discussions. I beg to move.

4:30 pm
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Baroness Hamwee (Liberal Democrat)

My Lords, the short answer is thanks. Discussions will continue. I am grateful for the compliment that the noble Lord paid me by putting me in the same category as the noble and learned Baroness. I follow on her coat tails but a very long way behind. I still think that there is more to be discussed here. I beg leave to withdraw the amendment.

Amendment 50B withdrawn.

Amendment 50A agreed.

Amendments 51 to 54 not moved.

Amendment 54A

Moved by Lord Henley

54A: Clause 64, page 52, line 39, at end insert-

"(3BA) The references in subsections (3A) and (3B)(b) to day to day supervision are references to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned."

Amendment 54A agreed.

Clause 67 : Alteration of test for barring decisions

Amendment 54B

Moved by Baroness Stowell of Beeston

54B: Clause 67, page 55, line 33, leave out from "person," to end of line 35

Photo of Baroness Stowell of Beeston

Baroness Stowell of Beeston (Conservative)

My Lords, in moving Amendment 54B, I will speak also to Amendments 54C to 54H, 54P to 54V, 60 and 61. This group of government amendments to Clauses 67 and 77, and the equivalent Northern Ireland provisions in Schedule 7, deals with barring decisions and barred list information.

Clause 67 provides that a person will be barred by the Independent Safeguarding Authority from working with children or vulnerable adults only if that person has been, is or might in the future be engaged in regulated activity. As my noble friend has already made clear this afternoon and at all stages of the Bill so far, in seeking to scale back the disclosure and barring scheme, the Government believe that it is disproportionate to bar a person if they have never worked in regulated activity and have no prospect ever of doing so. However, having listened carefully to the concerns raised in this House and by organisations such as the NSPCC, we have concluded that where someone has been convicted of a crime on the list of the most serious offences-that is, an offence that leads to an automatic bar without the right to make representations-the Independent Safeguarding Authority should bar that person whether or not they work or intend to work in regulated activity. An automatic bar without representation would apply to convictions for the most serious sexual and violent offences, such as, in the case of the children's barred list, the rape of a child. In these cases, there are no conceivable mitigating circumstances-that is why representations are not permitted-and there can be no question that the person is a risk to vulnerable groups.

Amendments 54B to 54E give effect to these changes in England and Wales, and Amendments 54P to 54S make similar changes to Schedule 7 in respect of Northern Ireland. Amendment 60 is consequential on Amendments 54B to 54E, and Amendment 61 is consequential on Amendments 54P to 54S. The other amendments in this group concern the provision of information by the Independent Safeguarding Authority to the police. Clause 77(4) states that the Independent Safeguarding Authority must, for one of a number of specified purposes,

"provide to any chief officer of police who has requested it information as to whether a person is barred".

The current drafting requires the Independent Safeguarding Authority to provide to the police information only about whether a particular person is barred rather than the whole barred list.

The police have indicated that they need this information in real time-for example, if they were to stop someone driving a school minibus and needed to know whether they were barred. In practice, making requests to the Independent Safeguarding Authority on a case-by-case basis would not always provide the police with the information in the necessary timescale. Amendments 54F and 54G therefore provide that the ISA must provide to the police the whole barred list. The police will then be able to put appropriate flags on the PNC, and will have immediate access to barring information when they need it. Amendment 54H ensures that this requirement to supply the whole barred list does not extend to information provided to the prison and probation services. Amendments 54T, 54U and 54V provide for the same arrangement in Northern Ireland. I beg to move.

Photo of Baroness Royall of Blaisdon

Baroness Royall of Blaisdon (Labour)

My Lords, I am grateful to the noble Baroness for her clear explanation. I wholeheartedly welcome this amendment, for which we have been calling since the Bill was first introduced. As my honourable friend the Member for Hull North said in another place:

"There is a very good reason why someone who commits a serious offence is barred from working with children-because they pose a serious risk to children. That should mean that they are automatically barred from working with them".-[Hansard, Commons, 11/10/11; col. 228.]

I have to say that I was astonished by the Government's original proposal that a man convicted of raping a child would not automatically be barred from working with children. I am grateful to the Government for listening and introducing this amendment which clearly puts right what was, I believe, a miscalculation of risk.

I have one or two questions for the noble Baroness but I hope not to detain her for long. She will know that the amendment which I tabled in Committee not only reinstated automatic barring but provided for an appeals process for individuals. Do the Government plan to review the existing appeals processes-based on written submission by the individual-to allow for appeals hearings in person, as were provided for by my amendment? How do the Government propose to ensure that there will be a consistent and proportionate approach to enhanced disclosures across all police authorities?

Photo of Baroness Stowell of Beeston

Baroness Stowell of Beeston (Conservative)

My Lords, I am grateful to the noble Baroness, Lady Royall, for her support for this amendment. As I said in my opening remarks, we have listened carefully and are pleased to table this amendment. The only thing that is perhaps worth making clear is that the absence of an automatic bar does not give anybody an automatic right. We have ensured that anybody who has been convicted of the most serious crime and has no opportunity to make representation is automatically barred. However, this does not mean that those who are not automatically barred have an automatic right-the opposite is not true for them. A proper process will follow.

As regards the amendment tabled by the noble Baroness in Committee and plans to review the existing appeals process, we are ensuring that representations can be considered in advance. The change we are making to the barring and vetting process will mean that somebody who is about to be employed in a regulated activity, and is therefore subjected to checks of the kind we are discussing, will receive the certificate and have the opportunity to challenge any information that is on it before it is made available to the employing body. Therefore, the opportunity for that challenge is at the start of the process rather than after a certificate has been issued to a prospective employer or organisation for which somebody might volunteer. Representations can include oral representations-they do not necessarily have to make their appeals or representations in writing-but at the moment we are not planning any further changes to the appeals process.

On the noble Baroness's final point about the police process, if I understood correctly, the point that she was making was that this system of ensuring availability of the barred list should be consistent across all police authorities. I can confirm that that is the case.

Amendment 54B agreed.

Amendments 54C to 54E

Moved by Lord Henley

54C: Clause 67, page 55, line 38, leave out from "person," to end of line 41

54D: Clause 67, page 57, line 23, leave out from "person," to end of line 25

54E: Clause 67, page 57, line 28, leave out from "person," to end of line 31

Amendments 54C to 54E agreed.

Clause 77 : Minor amendments

Amendments 54F to 54H

Moved by Lord Henley

54F: Clause 77, page 70, line 3, after "it" insert "a barred list or"

54G: Clause 77, page 70, line 4, after "a" insert "particular"

54H: Clause 77, page 70, line 10, after "a" insert "particular"

Amendments 54F to 54H agreed.

Amendments 54J to 54L had been withdrawn from the Marshalled List.

Schedule 7 : Safeguarding of vulnerable groups: Northern Ireland

Amendments 54M to 54V

Moved by Lord Henley

54M: Schedule 7, page 148, line 10, at end insert-

"(2C) The reference in sub-paragraph (2B)(b) to day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned."

54N: Schedule 7, page 149, line 2, at end insert-

"(3BA) The references in sub-paragraphs (3A) and (3B)(b) to day to day supervision are references to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned."

54P: Schedule 7, page 151, line 31, leave out from "person," to end of line 33

54Q: Schedule 7, page 151, line 36, leave out from "person," to end of line 39

54R: Schedule 7, page 153, line 19, leave out from "person," to end of line 21

54S: Schedule 7, page 153, line 24, leave out from "person," to end of line 27

54T: Schedule 7, page 166, line 5, after "it" insert "a barred list or"

54U: Schedule 7, page 166, line 5, after "a" insert "particular"

54V: Schedule 7, page 166, line 12, after "a" insert "particular"

Amendments 54M to 54V agreed.

Clause 79 : Restriction on information provided to certain persons

Amendment 54W

Moved by Baroness Stowell of Beeston

54W: Clause 79, page 72, line 16, at end insert-

"120AD Registered persons: copies of certificates in certain circumstances

(1) Subsection (2) applies if-

(a) the Secretary of State gives up-date information in relation to a criminal record certificate or enhanced criminal record certificate,

(b) the up-date information is advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate, and

(c) the person whose certificate it is in respect of which the up-date information is given applies for a new criminal record certificate or (as the case may be) enhanced criminal record certificate.

(2) The Secretary of State must, in response to a request made within the prescribed period by the person who is acting as the registered person in relation to the application, send to that person a copy of any certificate issued in response to the application if the registered person-

(a) has counter-signed the application or transmitted it to the Secretary of State under section 113A(2A) or 113B(2A),

(b) has informed the Secretary of State that the applicant for the new certificate has not, within such period as may be prescribed, sent a copy of it to a person of such description as may be prescribed, and

(c) no prescribed circumstances apply.

(3) The power under subsection (2)(b) to prescribe a description of person may be exercised to describe the registered person or any other person.

(4) In this section "up-date information" has the same meaning as in section 116A."

Photo of Baroness Stowell of Beeston

Baroness Stowell of Beeston (Conservative)

My Lords, I will also speak to Amendment 55 in the names of my noble friend Lord Addington and the noble Baroness, Lady Royall, and to government Amendments 58, 59, 62 to 69 and 72.

First of all, I should say how grateful I am to my noble friends Lord Addington and Lady Heyhoe Flint, who my noble friend Lord Addington has indicated is unable to be with us today, and to other noble Lords-notably the noble Baroness, Lady Grey-Thompson-for the time that they have taken to talk to my noble friend Lord Henley and me about their concerns about the issue of certificates. I hope that, given the amendment that I am able to move today, noble Lords will feel that it is no longer necessary for them to move the amendment in their names.

Although the intended effect of Amendments 54W and 55 is broadly similar-namely, that a copy of the criminal record certificate should be sent to the registered body as well as the applicant after a specified period has elapsed-their actual impact is significantly different, as I have said. We have listened to the concerns expressed about the single certificate provisions, and we are keen to ensure that there are no safeguarding gaps in respect of those individuals already employed. Amendment 54W therefore provides a facility for the Secretary of State to send to a registered body a copy of a criminal record certificate in specific and limited circumstances.

This facility will apply where a registered body uses the new updating service introduced by Clause 83 and is informed that a new certificate should be applied for-in other words, that there has been new information since the most recent certificate. If the registered body informs the Secretary of State that the individual has not sent to it a copy of their certificate within a prescribed period-we envisage a period of some 21 days -and requests a copy of the new certificate, the Secretary of State must comply with that request.

However, a copy of the certificate will not be sent if prescribed circumstances apply, principally when the individual has challenged the information on the new certificate, which is what the noble Baroness and I were just discussing with regard to the last group of amendments. Any such requests made by a registered body will need to be made in a timely manner-there is provision to prescribe a time limit-to ensure the smooth operation of these arrangements.

Our proposed change will be particularly relevant to large organisations which consider certificates centrally, and which will be able to advise their local branches of any issues arising. This applies in particular to the examples that my noble friend Lord Addington will no doubt draw on in his contribution to today's debate.

We recognise that there may be occasional instances in which an applicant delays providing a copy of the certificate to their employer. The amendment provides a way for registered bodies to see a copy of the new certificate in those circumstances, while still ensuring that, when an applicant has challenged the contents of the certificate, the employer will not see that information until the challenge has been resolved.

We think our approach is more proportionate than that in Amendment 55, as it focuses the registered body's ability to request a copy of the new certificate when the applicant is already working for them or where the applicant is seeking to cite an existing certificate as part of the evidence that they are suitable to fill a specific role. We have already made provision in Clause 79 for registered bodies to establish when a certificate has been issued to an applicant and whether the certificate is clear. We discussed and amended that in Committee, again thanks to contributions from noble Lords. The amendment means that registered bodies will be able to make appropriate checks for those already working with them. The other amendments in the group are either consequential on Amendment 54W or are otherwise of a minor and technical nature.

We have already discussed the statutory guidance today in a different context. Although statutory guidance on the disclosure and barring arrangements will be limited to the issue of supervision, as we discussed, we will be publishing broader guidance on the new arrangements, which will include the single certificate provisions. That guidance will make it clear to those registered bodies that have requested a new criminal record certificate, having been prompted by the new update system, that they can ask the applicant to provide a copy of their new certificate within the specified period after issue. It will also make clear that the registered body can, subject to certain conditions, approach the Criminal Records Bureau or the Disclosure and Barring Service after that point to request that a copy be sent to it. The guidance will contain details on how to do that. Our guidance will take into account the needs of sporting and voluntary bodies. By that, I mean that we are concerned to ensure that the guidance will be developed in consultation with those who will want to use it, so that they can be as robust as they and we want them to be in safeguarding children.

I hope that I have covered all the issues, but I will obviously respond to any issues raised by noble Lords. I beg to move.

4:45 pm
Photo of Lord Addington

Lord Addington (Liberal Democrat)

My Lords, first, I thank the noble Baroness and the entire Bill team for our discussions. As she hinted, my amendment was a result of the sports lobby, which deals with a large number of volunteers in a position of trust and power over vulnerable groups, predominantly children. Those groups and bodies are important in delivering a large amount of recreational sporting and other cultural activity within this country, and are dependent on volunteers. It was the relationship of the volunteer with those groups that gave rise to our concerns.

In the Government's recent sports policy, they are encouraging those volunteer groups to get involved in schools. That is a sensible move, because you get the enthusiasm and up-to-date thinking into schools for them to imbibe sporting culture. If we are to have that level of dependency on such volunteers to provide sporting and other activities, we have to ensure that they are checked. The governing bodies themselves want to know what they need to do and when they need to act. They need a defensive structure in place for the safety of the individual and the activity they are undertaking, which they regard as very important to the well-being of the state.

The Minister has given us a framework which we can probably work with. If I was being mean, I would say that half a loaf is better than no bread. I think we have three-quarters of a loaf, which is pretty well baked this time. I thank her for that. However, I should like the Minister to take this opportunity to say exactly what is required of the sporting bodies. Will this be made very clear? Will their minimum standards and best practice be stated very clearly in the guidance? If somebody is wheedling their way into your small sports club and making themselves indispensable but you are not quite sure about them or they will not fulfil parts of the CRB check or are delaying it, will it be made clear when you, as a sporting body, should take some action? We do not want to suspend people unnecessarily. We would like the guidance to cover the delicate interaction with people who give up their time for free to support things that are generally regarded as being for the public good. Therefore, can my noble friend give us further assurances about how the process and the framework within which sporting bodies will work?

My own sport-rugby union-like cricket, has laws, not rules, and the people within it are used to passing down authority from on high. They are well positioned to fulfil this role but if the Government would tell them what to do, that would make things easier for them. I think that the Minister is giving us that sort of information-that is, when you should or should not suspend somebody and what procedure you should go through. We have heard that the guidance is going to be upgraded and if we could be given an assurance in that guidance I would be much happier.

I thank the noble Baroness and the entire Bill team for the work they have done on this. I think that we are in a much better place but I should like to hear a little more about what is going on-possibly even to the point of overemphasis. However, I thank them for what they have done.

Photo of Baroness Royall of Blaisdon

Baroness Royall of Blaisdon (Labour)

My Lords, I was very pleased to add my name to the amendment in the name of the noble Lord, Lord Addington. As he said, it is not a perfect solution to the problems created-it does not address the concern of voluntary organisations up and down the country that individuals with minor and irrelevant criminal histories will be deterred from volunteering by having personally to submit their certificates to organisations, and it could strengthen the concern of groups with a high turnover, such as the care sector, that the bureaucracy caused by eradicating what was a quick and automatic process will mean that key roles are not filled quickly enough. However, I believe that accepting the amendment will provide the best iteration of what will potentially be a messy and bureaucratic process, and I think that the clarification requested by the noble Lord will be important to organisations' understanding of the process.

I also note with pleasure the Government's own amendment. I welcome the fact that, again, they have listened to the concerns of this House. However, I fear that the ultimate result of the changes to the process of CRB disclosure will be a system that is more complex for organisations to administer, and I worry that this could have a stifling effect on our voluntary sector.

I understand that two separate costs will be involved in the new portable CRB checks: a cost for initial disclosure and a cost for an ongoing subscription to update and validate the disclosure on a rolling basis. How do the Government propose to ensure that they do not create a two-tier system in which some individuals pay for only initial disclosure and do not access the new portability benefits by paying for a subscription? Will the Government confirm whether volunteers will be charged for the ongoing subscription, and why are they seemingly preventing the portability of checks between work with adults and work with children? It looks as though employers will have to apply separately for CRB checks and barring information, despite the fact that the Government are bringing the two organisations under one roof through the new Disclosure and Barring Service. Is this the case? Perhaps I am mistaken.

Photo of Baroness Stowell of Beeston

Baroness Stowell of Beeston (Conservative)

I am grateful to my noble friend Lord Addington and the noble Baroness, Lady Royall, for their remarks during this short debate. I start by responding to a point made by the noble Baroness, Lady Royall, about the potential for the new arrangements that we are putting in place to deter people from volunteering or to make the process more complex. I would disagree with that. There is the very clear and simple principle to which I referred a few moments ago that, in putting themselves forward, people will understand that they will be subjected to the necessary checks in order to safeguard young people and vulnerable adults. They will know that they will get the opportunity to see that certificate before it is issued not just to a prospective employer, but perhaps to a small group which is run by people who are volunteers themselves-not a big organisation. I think some people will find comfort in that.

The noble Baroness is right to say that there are some complexities to this wider topic and we have acknowledged that in the course of our debates today. However, we live in a very sophisticated world and I do not think that we should have a system that is not sophisticated enough to ensure that we address those who might put our children at risk. We should also make sure that those who are very able and who would do a really good job working with young children and others are not barred by us having a system that deters them. I understand where the noble Baroness is coming from but I disagree.

My noble friend raised some points about the amendment that we are discussing today. I repeat that we are talking about the single certificate and how a body could check that the person it wants to work with it is suitably cleared. I note what he said about volunteers being encouraged to get more involved in civic society. It could be argued that the new system that we are putting in place will make it easier to accommodate that because the online process, and the system of allowing someone to use the portable arrangements, will mean that we are trying to support people doing something and that we are providing a system to make that work effectively.

My noble friend asked again about the guidance that we have referred to already. I absolutely understand the point he is making that the organisations, particularly those that survive on the goodwill of the volunteers who work with them, want clarity in ensuring that they are doing the right thing and know how and when to pursue the checks and how and when to follow them up. I can make it absolutely clear to my noble friend that we will develop the guidance in consultation with the voluntary organisations and the sporting bodies that he has introduced during the passage of the Bill. We will want to outline best practice so that they know when is the right time to pursue an individual and check further for the evidence that they need. For example, if the registered body informs the Secretary of State that the individual has not sent it a copy of the certificate within a prescribed period which we envisage to be 21 days, it would have to wait 21 days before making a representation to the relevant body.

We have listened very carefully to the concerns that were expressed. We want to make sure that the guidance we introduce will provide organisations with the cover that people who are put in positions of responsibility feel that they deserve in order to make sure that they exercise their responsibilities properly. I hope that that provides the assurance that my noble friend seeks.

The noble Baroness asked about costs and charges, and whether volunteers would be charged for updating. I cannot give her a response today, but I will come back to her on that. She asked also about the difference between CRB checks and barring checks. They exist for different purposes. When somebody is employed, about to be employed or is volunteering to do regulatory activity for an organisation, the organisation has a statutory obligation to ensure that an application is made for that person to be checked and for a certificate to be issued. If the activity is unregulated, the organisation can still pursue a check if it wishes. In the process of the application being made, the authorities will determine whether the barring aspect of the check will kick in. It will not be a case of somebody making a specific request for the barring check; it will happen in the course of the process of application. The uncertainty will be taken care of and the decision will be made by those with the necessary information.

I hope that I have answered the concerns and points raised today by noble Lords. I beg to move.

Amendment 54W agreed.

Amendment 55 not moved.

Amendment 55ZA

Moved by Lord Wills

55ZA: Before Clause 102, insert the following new Clause-

"Time limit for decisions involving the public interest

In section 10(3) of the Freedom of Information Act 2000 (time for compliance with request) after "circumstances" insert "provided that it complies not later than the fortieth working day following the date of receipt"."

5:00 pm
Photo of Lord Wills

Lord Wills (Labour)

My Lords, both amendments in this group were debated in Committee, so I will not detain your Lordships long by rehearsing the arguments again. I am bringing them back because they will improve the Bill by protecting citizens' existing rights to transparency -although they will not extend them-in ways that are consistent with the Government's overall objectives. I am bringing them back also because so far the Government have offered no good reason for rejecting them.

Amendment 55ZA aims to cut down on delays in responding to freedom of information requests, which can often defeat the intent of the legislation. Such delays can be of more than a year. It is in line with the Information Commissioner's guidance that normally an extension should not be needed but where it is, it should not exceed a further 20 working days. Too often, the guidance is ignored. The amendment will make it more difficult to do so.

In Committee, when I withdrew an associated amendment, I asked the noble Baroness, Lady Stowell, to contact the Information Commissioner for evidence about the problems that he had encountered from delays in the process of policing the Freedom of Information Act, particularly in relation to the offence of altering records with intent to prevent disclosure. This is a most serious problem for the Information Commissioner in carrying out his functions in accordance with the wishes of Parliament. I would be grateful if in reply the Minister could tell noble Lords what the outcome of that contact has been.

Amendment 55ZB tackles a consequence of the Localism Act, which will restrict public access to information that the public currently have a right to gain access. As public services currently delivered by local authorities and other public bodies are contracted out-as increasingly they will be under the provisions of the Bill-they will be removed from the scope of the Freedom of Information Act. The amendment would restore the status quo: no more than that. So far, the Government have given no adequate justification for resisting the amendment. The amendment is proportionate. Very small businesses, for example, will not be caught by it. The Freedom of Information Act and regulations already contain exemptions to protect the legitimate interests of business, such as trade secrets or information likely to prejudice commercial interests.

The Government's response in the past-I know the Minister will recognise this-has been that they would prefer to consider these amendments in the light of post-legislative scrutiny of the Freedom of Information Act. I understand that approach. As a delaying tactic, it is pretty good, and on the surface, at least, it looks plausible. However, there are two problems with it. First, the Government's argument would be more plausible if they had not already done what they say they should not do: that is, dealt with transparency in local government piecemeal through the Localism Act and pre-empted the results of post-legislative scrutiny of the Freedom of Information Act. They have done that because the Localism Act already changes the status quo. It does so by weakening transparency in local government, not by strengthening it.

The second problem is that, should the post-legislative scrutiny and the Government's response to it conclude that there should be action in these areas, and they may well do that, it is likely to take years before an appropriate legislative vehicle can be found to implement these changes. Your Lordships will be well aware of the complexities of the legislative progress and of how long it takes legislation to come before Parliament. There is no guarantee at all. I will be delighted if the Minister can correct me in her response and tell me that the Government already have plans to bring forward this legislation, but just not in the Bill. I would be delighted if that were the case. The reality is more likely to be that it will take years before an appropriate legislative vehicle can be found. That was certainly the experience of my party when we were in government and I doubt whether it is very different now.

In the mean time, over those years, despite the coalition agreement pledging to increase transparency, the right of citizens to have vital information about public services discharged in their name, for which they have voted and for which they pay, will be weakened, not strengthened. I hope the Government will now take the opportunity that these amendments offer to secure greater transparency in the government of our country for the people we all serve and accept these amendments. I beg to move.

Photo of The Earl of Erroll

The Earl of Erroll (Crossbench)

I shall say a few words because I would have added my name to these amendments if I had been a bit more alert about them. I think they are very sensible. Of the two, I think Amendment 55ZB is probably the more important, although opportunities for delay are always a problem, so I think Amendment 55ZA is sensible.

In the atmosphere we are going into where there is an awful lot of rejigging of authorities and shared services and procurement, there are a lot of shenanigans going on behind the scenes with people trying to wheel contracts this way and that and shuffling them through different routes. The Government might find it quite useful to have some outside eyes keeping an eye on what is going on here and there, not to penetrate commercial secrets or commercial confidentiality, but sometimes some practices are going on that bear closer scrutiny.

I think this could go some way to help open up some areas and possibly to assuage unfounded suspicions. Sometimes people develop conspiracy theories in a completely unjustified way. A freedom of information request could expose the fact that the person is barking up completely the wrong tree, but sometimes it may be justified. I think it is very sensible to include this, or otherwise you will have a raft of things taken outside the Freedom of Information Act that are very useful for keeping an eye on what is really going on in the way that we are putting so much through various other sectors.

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Lord Lucas (Conservative)

I quite agree that this is something we need to watch. We have similar problems in the health Bill where, for reasons I entirely approve of, activities that used to be done by state bodies may in future be done by private ones. We need to make sure that that does not mess up our objectives on freedom of information, which are, I believe, and certainly should be, towards greater access to information rather than less.

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Lord Collins of Highbury (Labour)

My Lords, I support my noble friend's amendments, which would make common-sense improvements to the operation of the Freedom of Information Act. I will not repeat the arguments he has made so eloquently, but I would like to raise a few points.

These amendments strengthen the individual's right to freely access public information and the presumption in favour of openness and accountability in public bodies. The democratisation of knowledge and communication through the internet is the most important revolution of our age. People simply do not accept bureaucratic barriers to information any more, and we must have legislation that is alive to responding to new realities. It is therefore essential that the processes for accessing information do not work against the principle that the burden should be on the body providing the information, not on the individual seeking it. This includes the cost of seeking such information and I urge the Government to think again if they are planning to increase charges.

The 40-day maximum cap on complying with freedom of information requests is both simple and workable. As my noble friend pointed out, it comes from the recommendations of the Information Commissioner, who said:

"In cases where the public interest considerations are exceptionally complex it may be reasonable to take longer but, in our view, in no case should the total time exceed 40 working days".

The House has learnt first hand the frustration of delays that can be caused by decisions and successive appeals on the basis of public interest, which no doubt we shall return to when we resume consideration of the Health and Social Care Bill.

We must seize every opportunity to ensure that the process itself never becomes the reason why individuals are denied access to public information. We must also ensure that the principle of public accountability at the heart of the Freedom of Information Act established by the Labour Government is not diluted by changes in the nature of delivery of public services, as noble Lords have pointed out. As my noble friend has said, the public have a right to access information about how their money is spent and I hope the Minister will seize this opportunity to restore the levels of public sector transparency enjoyed before the Localism Bill was enacted.

Photo of Baroness Stowell of Beeston

Baroness Stowell of Beeston (Conservative)

My Lords, I start by making it clear that this Government very much support freedom of information and increasing openness and transparency-there is absolutely no doubt about that. Indeed, I am sympathetic to Amendment 55ZA, moved by the noble Lord, Lord Wills, in relation to the timeliness of public interest deliberations, and his proposal to make the Information Commissioner's recommended best practice a statutory requirement.

Public authorities must answer freedom of information requests promptly. They must not be unnecessarily slow in responding, and any extension to the time limit for responding to such requests should only be claimed where absolutely necessary. As I mentioned to the noble Lord when we debated similar amendments tabled by him in Committee, I have some experience-although not in government-of being on the receiving end of FOI requests that are complex and invoke public interest tests.

As I said then, it is certainly the case that, in general, timeliness in responding to freedom of information requests is good. In 2010, 86 per cent of requests were answered by bodies monitored by the Ministry of Justice within 20 working days. It is also worth noting that in central government time extensions for the consideration of the public interest test remain relatively rare and the proportion of requests which have resulted in such an extension fell to 4.5 per cent in 2010.

5:15 pm
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Lord Wills (Labour)

Will the noble Baroness confirm that those figures do not cover local government? Will she further confirm that it is her understanding as it is mine that most of the interests that the citizens of this country have are in local authority functions and not central government functions?

Photo of Baroness Stowell of Beeston

Baroness Stowell of Beeston (Conservative)

I can certainly confirm that the figure I quoted for the extension of requests under the public interest test relates only to central government. As to general requests under FOI, these bodies were monitored by the MoJ. I am afraid that I do not have to hand which bodies they are. The figures do not cover local government.

However, I accept that there is room for improvement, especially where the deadline is extended to allow consideration of the public interest test. The Information Commissioner is watchful of public authorities where timeliness is an issue and has taken effective action in this area. In 2011, the commissioner announced that out of 33 bodies being monitored in relation to timeliness issues, 26 had made sufficient improvement to be removed from his watch list. While further action is required from the remaining bodies, it is clear that the Information Commissioner's Office has been effective in improving timeliness.

The introduction of new statutory deadlines is a potential way of strengthening the Freedom of Information Act, as the noble Lord has put forward, provided that it does not lead to hasty decisions that are not fully informed. An absolute limit of 40 days raises some concerns about the potential for such an effect and therefore we need to give the impact of changes of this type full consideration before their introduction. For that reason, I cannot accept his amendment today.

As the noble Lord has predicted I might say, but not for the reasons he suggests, this is something that I strongly believe should be properly scrutinised and considered in the course of post-legislative scrutiny, which is now under way by the relevant Select Committee of the other place, chaired by the right honourable Alan Beith. I certainly will ensure that he receives the official record of our debate today.

It is also worth pointing out that I genuinely think that the proposal put forward by the noble Lord, as much as it has merits, requires very careful consideration. I will look forward to his contribution to the process of post-legislative scrutiny that is ongoing.

Amendment 55ZB, again in the name of the noble Lord, Lord Wills, seeks to extend the Freedom of Information Act to information held by contractors working on behalf of public authorities about the performance of those contracts where those contracts are worth more than 1 million. The noble Lord has found support today from the noble Earl, Lord Erroll, my noble friend Lord Lucas and the noble Lord, Lord Collins, on this issue. As the noble Lord, Lord Wills, is aware, the Government have extended the FOI Act and are taking steps to extend it further. We have made an order under Section 5 of the Act extending its scope to, among others, the Financial Ombudsman Service. We have commenced consultations with more than 200 further bodies about their possible inclusion through future Section 5 orders and we intend to consult more than 2,000 housing associations later this year in relation to their possible inclusion.

In addition, Clause 103 of this Bill will extend the Act to companies wholly owned by two or more public authorities, thereby removing the anomaly whereby a company is subject to the FOI Act only if wholly owned by one public authority but not by two or more. I hope that the noble Lord recognises that these are significant changes.

I understand the point that the noble Lord and others have made today that as services are subcontracted out, whether by local government or by other public services which have been mentioned today, the public should not be left short of any information that might be needed to assess the effectiveness and efficiency of those services. But as I mentioned to the noble Lord in Committee when we debated this, even when a service is subcontracted out, it is still the responsibility of the public authority in terms of the accountability for that service to the public. It is the relevant organisation which should be held to account. In the way in which the contracts are constructed, it should be possible for the public to receive from the contracting authority the information that is needed in order to ensure that the services being carried out and paid for with their taxes are actually performing as they would want them to.

As my noble friend Lord McNally stressed last year, it is important to ensure that changes to the way public services are delivered do not undermine our pledge to increase openness and accountability, and there is certainly a challenge to be met here. I would like to restate that our continued opposition to this amendment does not stem from any lack of commitment to the cause of increased openness and accountability. We are already considering this issue and it will be further considered in the response to the Cabinet Office consultation on the draft transparency and open data strategy.

I may have covered this point, but I want also to say to the noble Lord that there is a provision in the FOI Act as it stands that extends its scope to public bodies. I believe that it is set out in Section 5. If and when other public authorities, bodies or organisations should be covered by the Act, we do not need new legislation, or we will be subject to the kind of delay that he seems to think post-legislative scrutiny would bring about. We actually have a mechanism to ensure that as and when we feel it is right and proper to extend the Act, we can do so.

Photo of The Earl of Erroll

The Earl of Erroll (Crossbench)

My Lords, I have a brief question for the noble Baroness. Is she saying that public authorities should be writing into their contracts a provision that would allow for freedom of information requests, and that is what she is relying on rather than it being put into the law?

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Baroness Stowell of Beeston (Conservative)

No, I am not saying that. I am not in a position to go that far because it would take us into an area on which I do not have the authority to speak today. I am making two separate points. One is that a public authority is the body which is accountable to the public for any services that it might subcontract out. In the course of its contractual arrangements with the subcontractor I would expect, in order to ensure it is properly accountable, it should ensure that it is able itself to access the information it needs. I do not think it is proper to prescribe the detail in the way that has been put forward by the noble Lord. For example, it is not clear how the 1 million contract threshold would be calculated. How would additional payments which might take the value over 1 million be taken account of? Different public authorities might take different approaches to valuation. If that happens, the approach will not be applied consistently. I worry that the amendment might be attractive on its face but deceptively difficult to operate on the ground. I am not saying that issues such as this are insurmountable; I merely use this as an illustration of why careful consideration is necessary to ensure clarity for public authorities, the Information Commissioner and users alike.

I have also made the point previously that to comply with FOI requests for contractor information public authorities would need to have access to any information held by the contractor that is potentially relevant in terms of responding to the request. Such a requirement to share all such information with the public authority so that the authority might comply with FOI requests could adversely affect the effective delivery of the contract. Again, I am sure that solutions to this issue exist, but they require careful consideration.

I reassure the noble Lord, Lord Wills, that our opposition to the amendments results from the need to make sure that effective and proportionate solutions are developed. It does not result from a lack of a commitment to transparency or the effective operation of the Freedom of Information Act. I therefore invite the noble Lord-

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Lord Wills (Labour)

Before the Minister invites me to withdraw the amendment, will she answer two questions for the purpose of clarification? The first is in relation to the undertaking that she gave in Committee to contact the Information Commissioner. Has such contact been made? If so, what was the result of it? If it has not, when will it be made? Secondly, she referred earlier to her belief that the Government have the mechanism and the will to act promptly should they decide that it is necessary to do so, and that the delays that I fear will happen will not take place. Is that mechanism Section 5 of the Act and, if not, what mechanism is she referring to other than primary legislation?

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Baroness Stowell of Beeston (Conservative)

On the former of his questions, I am not able to give the noble Lord a reply today, but I will follow it up with him in due course. On the latter, I am not proposing any new legislation; I am referring to Section 5 of the FOI Act, in that it gives us the opportunity and the provision, should we need it, to extend the Act to cover new bodies in the way that we are using it right now. I hope that that answers the noble Lord's question and that he will feel able to withdraw his amendment.

Photo of Lord Wills

Lord Wills (Labour)

I am grateful to the Minister for a characteristically gracious and thorough response. I am grateful, too, for the support that I have received from all sides of the House for both amendments. I am sorry that the Government have not taken account of the compelling cases made by the noble Earl, Lord Erroll, the noble Lord, Lord Lucas, and my noble friend Lord Collins on the Front Bench. I note what the Minister said in relation to Amendment 55ZB and my fear that any legislation will create a delay. She referred to Section 5. I am afraid that this only makes my point: the extension of the coverage of the Act under Section 5 to which she referred, and to which the Government always refer as a great indicator of their commitment to freedom of information, was, I have to tell the Minister, work put in train by the previous Government. I was the responsible Minister. It has taken all this time. That work was started in around 2008-I cannot remember exactly when. Four years later, this Government are now able to claim credit for that. The extension would not necessarily cover all the areas that should be covered by my amendment, so if the Minister is relying on that as a mechanism for speed in rectifying this problem, I am afraid that she is just wrong.

I hope that the Government will look again at this issue. I hear what the Minister says and I have no doubt about her personal commitment to transparency, but all the noises that we hear in the media as emanating from Whitehall are of the deep hostility of the entrenched, vested interests of the state to this agenda of transparency. All I can say is that I wish the Minister well in her forthcoming battles with those vested interests.

I do not regard it as part of my role in this House to safeguard the position of Conservative and Liberal Democrat Members of Parliament, but the same cannot be said of the Minister, so I am surprised that she continues to resist these amendments. I wonder if Ministers have really thought through what voters and the media will think of a Government who promise to increase transparency and then restrict it. What will they think about the fact that information about services, which is paid for by taxpayers and to which they currently have a right to access information, is now denied to them?

The noble Earl, Lord Erroll, made an important point about what will happen when all these contracts are let out to private sector companies by local authorities up and down the country. He made the case extremely well and I urge the Minister to look to it. What will happen when those Members of Parliament are berated by their constituents because they are worried about what is being done in their name using their money, and they are told that they cannot have information about it because the Government-that Government of Conservative and Liberal Democrat MPs-passed a law that denied them that information? They resisted every opportunity to accept amendments that would have maintained the status quo and given the public that information. What will those MPs turn round and say to the Ministers who let that through? It is not my problem, but I fear for the Minister that it will be her problem and those of her colleagues in the years to come.

I am much more concerned about a Government who have nobly pledged to increase transparency in the government of this country and are conniving either malignly or through inadvertence in a restriction and a weakening of those rights of the citizen.

However, having said all that, I note the general words of sympathy that the Minister offered for the principles of transparency. I really hope that Ministers can now make good on them. This issue may go no further in this Bill, but it will not go away. Ministers will be held to account for any failure to secure the rights of the British public to gain access about public functions for which they vote and for which they pay. With those words, I beg leave to withdraw the amendment.

Amendment 55ZA withdrawn.

Amendment 55ZB not moved.

Clause 102 : Extension of certain provisions to Northern Ireland bodies

Amendment 55A

Moved by Lord Sutherland of Houndwood

55A: Clause 102, page 88, line 35, at end insert "which may set conditions on republication or communication of the data to third parties"

5:30 pm
Photo of Lord Sutherland of Houndwood

Lord Sutherland of Houndwood (Crossbench)

My Lords, the amendment is in my name as well as that of my noble friend Lady O'Neill of Bengarve. She has already given her apologies to the Front Bench. Having sat through two long days on Report, she finds that her commitments can no longer be put off and are subject to the vagaries of how we put our business together in this House. I am sure that noble Lords would have had a much more precise, analytic and forensic speech from her than from me, but I will try to raise the points that I believe she wished to put and express the concerns that I share with her. Those concerns are shared by the wider university community in the UK. I believe that they are grateful to the Minister for the time that he has taken to meet them and to talk to them about some of these issues.

That being so, there is a shift in atmosphere from the previous amendment because I wish to focus on the implications of the Bill for research and research data sets held significantly by universities and public research institutions.

Research is an international and very competitive business. There is a risk that some of the provisions of the Bill may undermine the competitiveness of much of our excellent research in this country. That is unintentional, but I hope that I can demonstrate that there are some difficulties that need to be resolved.

The specific Amendment 55A is a modest suggestion that any licence for reuse of data set may have conditions attached to it following the comments of those whose datasets they are. That is a modest way of protecting the interests of our researchers and the research community and, more broadly, UK plc.

The impact of the Bill as it stands will be such as to fall on both individual researchers and on institutions. In the case of individual researchers, it will change behaviour. If you change the rules about how research data are to be treated, you will change the behaviour of researchers. They are pretty clever people, so you need to watch out. Beyond that, there are more serious implications.

It may well be that the provisions of the Bill result in activities that are inimical to and, indeed, unintentionally unjust to individual researchers. The data set, for example, may well have been built up over a long period and involve substantial career commitment by individuals. If you spend your time on large data sets in particular, that is a major-or indeed a lifetime-commitment. The data sets may well have been built up involving the distinctive, significant and, on occasion, unique skills of the individual researcher. I am not quite convinced that the Bill has taken that sufficiently into account. It will certainly be inimical to career development and commitment-and, indeed, in terms of the opportunity costs-in respect of the work of individual researchers. They take time, they do this rather than that, and they use the skills they have, which may well be unique and very distinctive.

In the case of institutions, there clearly may well be problems where a home or sponsoring institution has invested significant resources in the data sets or in building them. As head of more than one such institution, I know that huge resources are invested to build appropriate data sets, in terms of time, space-which is very important and expensive-individual members of staff and money. These are the commitments the institution makes, and there is a risk that they would be set back dramatically despite the effort and the commitment involved. Equally-this point has been made in previous discussion but it is still there-the institutions may well have commercial interests in the research and data sets in question. Beyond that, we fund universities in such a way that the research assessment exercise depends very significantly on the uniqueness and distinctiveness of research. If the data sets that are the foundation for these are too easily available, that sets at nought the efforts of those who worked on them; and makes it easy for those who did not to pillage those data sets. Academics on the whole are nice people, but when it comes to this kind of competitiveness, all rules are set aside.

There is one consequence that I am sure is unintended and which relates to the previous amendment-although not perhaps in a congenial way. I declare, unusually, a future interest, which I may have if this legislation goes through. As I understand it, one of the ways of avoiding the data sets moving out too quickly and in an unregulated, uncontrolled fashion is to have co-ownership with some private sector activity, firm or company. My interest would be that I might set up such a company, the sole purpose of which would be co-ownership of data sets with universities and research interests. I could become very rich-but being the chap I am, I would dedicate all the money to a charity to support research in universities. That is one possible way of beginning to avoid the implications of the legislation as I understand it. This is partly jocular but it is more than that. Ingenious people are out there and will find solutions to retain data sets that they, for good reason, believe are important. This is not miserable secretiveness, this is how research operates. This is how the competition deals with those who are involved in research.

Finally, I believe there is a difficulty in identifying what data sets will fall under this Bill as currently formulated, if it becomes law. What will count? I give the House one example, just as a test. In the description, decoding and understanding of the structure of DNA, Crick and Watson did excellent and magnificent work in Cambridge which was properly recognised with a Nobel Prize. Yet the missing piece in the jigsaw was here in London, with Professor Maurice Wilkins and Dame Rosalind Franklin at King's College London. She is now at last being recognised for her part in this. The data sets of material that she had built up using techniques of electron microscopy were, when they were available to Crick and Watson on a shared basis, what put the final piece of the jigsaw in place. The picture became clear to them and they could move ahead.

I do not think that these data sets would be ruled out under the definitions given in the Bill, because they are simply printings that you could look at. They are not analysed or pre-digested and there is no interpretation given. If they had been requested belligerently by Crick and Watson, they could have saved themselves the price of a rail ticket to London. Your Lordships can see the implications. What counts as a dataset, when Rosalind Franklin had created this data set that made all the difference to what has changed the course of life for all of us? I believe there are questions about the definition of a data set because the Bill is really meant to deal with other issues initially but, as it so happens, it is now being applied to research and research data sets in some of the best institutions in this country. I beg to move.

Photo of Baroness Brinton

Baroness Brinton (Liberal Democrat)

My Lords, I shall speak to Amendment 56, but in so doing I start by expressing my support for the amendment tabled by the noble Baroness, Lady O'Neill, and the noble Lord, Lord Sutherland. I will also be incorporating some of the points that the noble Baroness, Lady Warwick, would have made had she been able to be in her place, but for exactly the same reason as the noble Baroness, Lady O'Neill-the unfortunate and substantial delay in getting to this-other commitments have meant that she needs to be elsewhere in the Palace of Westminster.

I also want to thank the Minister for the helpful meetings with him and his officials on the complex subjects of universities, the publication of their research and the implications for the practical working of the Freedom of Information Act. In Committee, I outlined a number of problems that universities face that are not analogous to the use of FOI in non-research areas of higher education institutions, not least because of the size, duration and complexity of many research contracts. Universities are mindful of their duties to respond to FOI requests elsewhere, and in the main they absolutely do. Also, the universities that we have talked to about the problems facing research and FOI are clear that this is not special pleading for the sector as a whole over freedom of information. Nor do they support any institution that does not comply with FOI requests in the mainstream.

The issues here are quite specific. They are about whether the exemptions currently outlined in the Information Commissioner's guidance to the higher education sector can be effectively applied, given the nature of research and whether, in the case of commercial partners, it might give rise to suspicion by those partners that their own confidential data might be seen by others following an FOI request. In Committee, the Minister asked for evidence of where the current exemptions do not apply. Here, from the Information Commissioner's guidance to higher education institutions-which, for brevity, I shall refer to as HEI-are a handful of examples that researchers and their universities have told us really need clarification.

The guidance on Section 22 refers to information intended for future publication. The information is exempt if it is intended for future publication and it is reasonable to withhold the information until that point, subject to the public interest test. While this will certainly apply to research data which an HEI intends to publish, provided that withholding the information is reasonable, it will not apply if there is no intention to publish the results at the time the request is made, which, as the ICO guidance makes clear, is the relevant time for him.

In general, HEIs would expect the data supporting research conclusions to be published, or at least to be available to others, when the conclusions themselves are published. However, in the case of longitudinal studies, the decision to publish may not be made until a late stage in the study, not least because it is not clear what will be reported, or how. Moreover, usually the material is published in the form of a peer-reviewed article, which is often only the tip of a much larger iceberg of data that are not published. I am mindful here of the specific example that my noble friend Lady Sharp gave us at an earlier stage of these proceedings about the very complex data set that she managed for decades, which would certainly fall into that last category.

Would the Minister clarify that the exemption does not specify that the publication needs to happen within a very limited time period? It could apply to long periods, including years, which may be acceptable in some specific cases-for instance, where research is at an early stage.

Will the Minister also acknowledge that in the case of longitudinal studies the decision to publish may not be made until a late stage of that study, not least because it is not clear what will be reported and how? Will he confirm that normally the public interest will favour the completion of research before publication of the data on which it is based, whether that is intended or not?

In another example, Section 36 of the Act is headed, "Prejudice to effective conduct of public affairs", and states that,

"Information ... is exempt ... if, in the reasonable opinion of a qualified person, disclosure ... would ... prejudice ... the free and frank exchange of views for the purposes of deliberation, or ... otherwise prejudice ... the effective conduct of public affairs",

subject to the public interest test. Again, while the free and frank exchange of views may be necessary as part of the process of building up research results-for example, where a team of researchers is involved, sometimes over many institutions-and it is an essential part of peer review, as was recognised in McLachlan v ICO and MRC, this does not apply comfortably to research data that have been gathered, perhaps over a long period of time, for the purposes of analysis by the researcher himself as opposed to exposure to others. Nor is it obvious that the carrying out of research by HEIs, which are not arms of government, falls within the "conduct of public affairs".

There are also practical difficulties for HEIs in relying on this exemption. The qualified person is usually the vice-chancellor, and involving the vice-chancellor may be a disproportionate requirement if it is simply understood that research information is entitled to a temporary period of embargo prior to publication of the research conclusions on an as yet indeterminate future date.

Will the Minister explain how a,

"free and frank exchange of views for the purposes of deliberation",

can be applied to the collection and generation of research results at a stage prior to peer review or before discussion with third parties is envisaged? His clarification would help to deal with the fact that the current case law on this applies only to peer review. Will he clarify that university research activity falls within the concept of the "conduct of public affairs" and to what extent the vice-chancellor as the qualified person would need to be involved to defend a decision to use this exemption, given that often universities employ many thousands of staff, most of them research staff and teachers? Will he undertake to look at the mechanism underpinning the use of the exemption, subject to the recommendations of the Justice Committee?

Another example is in Section 38, entitled "Health and Safety":

"Information is exempt ... if ... disclosure ... would",

prejudice,

"the physical or mental health ... or ... safety of any individual",

subject to the public interest test. This will apply in cases where disclosure may result in the intimidation of researchers such as those involved in the use of animals in research, which we have seen shocking details of in the press, or harm arising from the public's overreaction to misleading and incomplete research. However, not all cases are so extreme, and the harms cited above would not of themselves prejudice the physical or mental health or safety of any individual.

This debate has shown that the issue is sufficiently important to justify looking more carefully at the legislation at the post-legislative scrutiny stage. Universities should not be required to try to bend exemptions that were not designed specifically for the purpose. Doing so means that universities and individuals are required to spend disproportionate amounts of time and money on expensive advice to try to make arguments to apply existing exemptions. My worry is that this adds up to a potentially disproportionate regulatory burden and, to be frank with the House, a waste of public money, given that most research grants are funded from the public purse. For this reason, I am pleased that Universities UK is calling for an independent review of the operation of the freedom of information in universities. It will form part of its submission to the process of post-legislative scrutiny that is being undertaken by the Commons Justice Committee.

I look forward to hearing from the Minister on the questions that I have raised about the complexities that surround the exemptions for universities, and whether they are met by the guidance from the Information Commissioner.

5:45 pm
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Lord Lucas (Conservative)

My Lords, before I speak to my amendment in this group, may I first say that I hope my noble friend will treat the points raised by the noble Lord, Lord Sutherland of Houndwood, and my noble friend Lady Brinton with seriousness? It is clear that in an internationally competitive environment it is very important that people have confidence in the proper protection of research databases.

I disagree with both amendments. The amendment moved by the noble Lord, Lord Sutherland, would blow a hole below the waterline of this clause and would certainly destroy all my attempts to get other information out of universities. The amendment spoken to by the noble Baroness, Lady Brinton, misses important points on the other side. It is terribly important that data become available once results have been published. Many of these programmes go on for a long time. Because we intend to use the data in a whole series of publications over the next 20 years, we will never let them go. However, it must be possible for people outside a research group to criticise the results as they are being produced or false conclusions will be dropped into science and never properly got at. To pick one example, given by the noble Lord, Lord Sutherland, the inspiration of Crick and Watson had to be combined with the meticulous work of Franklin. Without that combination and the data being made public, the discovery would not have been made.

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Lord Sutherland of Houndwood (Crossbench)

On a point of order, it was information shared between research colleagues in two different institutions. In an atmosphere that is perhaps not quite as common today, it was willingly shared.

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Lord Lucas (Conservative)

I understand and I remember from reading biographies that that was the case. None the less, the data were shared. To take an example from my time on the Front Bench as spokesman for agriculture during the problem of BSE, the Ministry of Agriculture, Fisheries and Food had been meticulously researching what was happening with this plague and had years of data. We had good people internally who were researching it. We did not know what was happening and we kept the data to ourselves. Three weeks after we released the data, we were told what was happening, which was transmission by food. That was right. Making data public, beyond a research group, is a very important thing to do at the right time. I should not like to see something in legislation that prevents that and allows people to hog data that should be public so that they can be properly criticised and understood.

My amendment is not on the same subject; it concerns technical bits of drafting in the same clause. I very much welcome the determination to provide greater access to data sets. It is something that I have struggled with, particularly with universities. All the universities that send me data stick copyright notices on them, which I studiously ignore. They have yet to sue me for it, probably because they have better things to do. Alternatively, I proposed as a remedy to one university that, if it insisted on its copyright notice, I would automatically generate an FOI exemption for every one of my users who wanted to access the data. The university thought that a number of 10,000 users a day was getting a bit large.

It is important that we understand that, when information is released under FOI, it can be passed on and made public; and that the generating institution does not retain some sort of control over it merely on a whim. I can understand why that might be the case if the material comprises something done under a publication scheme and is paid for, but otherwise it is very important that the information can be circulated whether in news media or in publications such as mine -the Good Schools Guide-or in many other applications.

I do not see why the proposals in the Bill do not go further and why they are restricted to data sets. It is common for all kinds of information released under FOI to be accompanied by a copyright. However, it is often obvious from the information that it has no conceivable commercial value to the public authority. A requester may have obtained a policy that he or she wants to publish on a website which demonstrates alleged shortcomings in an institution; for example, it may show that a decision has been taken without proper consideration of the consequences. The requester may want to write to Members of this House about the information that has been disclosed. Why should they be prevented from doing so by a copyright notice? It seems to me that the principles we are setting out in this clause should go further.

My second concern is about the definition of "data set", which I believe is unjustifiably narrow. The Cabinet Office carried out an open data consultation which sets out admirably ambitious objectives for the greater use of data sets. Many collections of data currently gathered by public bodies which may be essential to revealing the inner workings of government do not seem to fall within the legal definition of a data set as set out in Clause 102(2). Any electronic collection of data which is the result of analysis or interpretation cannot be a data set because of new Section (5)(b)(i) of the definition. The obligation to release it in reusable form will not apply to it, nor will the requirements to release it subject to the minimal restrictions embodied in a specific licence. The Information Commissioner will not be able to require that this collection of data must be published under an authority's publication scheme. It seems that only raw data untouched by human hand are to be affected by this clause. That may suit people like me who spend their day with programs interpreting data, but most people want access to something which has been prepared for human consumption and has been set out in a way that members of a local authority are intended to understand rather than the geeks in their data department. I do not understand why the Government are seeking to exclude from this clause data which have been made human readable, as it were.

Paragraph (c) of the definition states that a data set remains one only so long as all or most of the information in it,

"remains presented in a way that (except for the purpose of forming part of the collection) has not been organised, adapted or otherwise materially altered since it was obtained".

I am puzzled by that definition. A publication of data from a database may start off in the form of a spreadsheet consisting of three columns but is reorganised to consist of seven columns. Has enough been done to prevent the data set being published? How is anyone to know that? How is anyone to interpret that? How is any user to know that something is publishable? It seems to me that we are setting ourselves up for endless arguments. I am particularly concerned that authorities may find that, by reorganising data, they are able to conceal it from publication. It does not seem to me that that is the Government's intention. I very much hope that they will explain to me their understanding of how this subsection may not be used in that way.

6:00 pm
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Lord Oxburgh (Crossbench)

My Lords, I support the intention, if not the precise wording, of Amendments 55A and 56. I feel that, if the legislation goes forward as is proposed at the moment, a series of what I hope are unintended consequences will ensue, which will be seriously damaging to the research community in this country.

One of the points that has not yet been made or emphasised is that the ability to demand information under the Freedom of Information Act is international, so it may be demanded by any person, anywhere in the world, without any specific purpose whatever. We may say that there is copyright, or that the information is released under certain conditions, but probably the places that we would have most concern about making demands of this kind would not respect these conditions, and we would have no means of enforcement.

A serious point, which was made by the noble Lord, Lord Lucas-although I do not support the purpose with which he made it-is that it is not clear from the legislation, as it now stands, what constitutes a data set. My days at the bench are a little behind me, but if I spend a couple of days carrying out a series of experiments and arrive at a series of data points, are they instantly a data set which may be requested by the competition, in North America or elsewhere, and incorporated, published and what have you? The results may or may not have significant commercial significance, but it would certainly undermine the career of an individual who was making them if they were pre-published by someone else.

I wonder whether we should not think of some reasonable amount of time-this concept has been used by research councils from time to time-during which the results of any particular piece of research should be accessible only to those who have carried it out, after which they could be available subject to the Freedom of Information Act: a year, maybe, or two years, or something like that. Certainly the results should be in the public domain; but equally, the person or group that has put in the time, building the apparatus and making painstaking observations, should be the person or group with first access to them.

Another point worth making is that the costs of redaction of some of the information which would be freed under the legislation at the moment are really significant. As I understand it, they would be able to be passed on to the individual or group requesting the information. However, a good example would be data which were acquired from a health study-perhaps clinical trials, or something of that kind-where all the information that would have made it possible to identify the individuals concerned has to be removed: this is a long and expensive business and it is the kind of cost against which someone requiring the data might seek to complain. Provided all of these things are genuinely covered, it seems to me that this is not a serious point, but it has to be recognised.

Overall, what the Government have to recognise is that the net effect of the legislation going ahead as it is now would be to make the UK a relatively unattractive place to do research. It seems to me that this goes counter to the trend of all other government thinking.

Photo of Viscount Hanworth

Viscount Hanworth (Labour)

I shall speak briefly in support of Amendment 56. It is clear that this amendment is seeking to address a substantial problem with the Freedom of Information Act 2000. We have seen some remarkable evidence of how the provisions of the Act can be used maliciously to frustrate research programmes by those who dislike the conclusions that the research is supporting. Is it not the freedom to conduct research without hindrance that we ought to be protecting? It is clear that the existing regulations within the Act that relate to vexatious requests have proved to be inefficient in warding off the nuisance. The amendment seems to fulfil that purpose perfectly.

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Baroness Benjamin (Liberal Democrat)

My Lords, I have put my name to Amendment 56. In speaking to it I declare an interest as the Chancellor of the University of Exeter. I too thank the Minister for the time that he spent meeting with those of us who have concerns, which was much appreciated.

The Minister argued in Committee that there is little evidence to support the view of the university sector that the Freedom of Information Act is causing difficulties in universities. However, I have spoken to colleagues at the University of Exeter who have given me the clearest possible indications that this is not so, and have told me where the problem lies. I wish to draw the Minister's attention to the importance of dealing with those problems and concerns effectively.

In particular, the University of Exeter has described the difficulties which the Freedom of Information Act creates when the university negotiates contracts with commercial companies-for example, where the university is working closely with a company to carry out research that might lead to a commercial product and where release of information might prevent a patent or product emerging.

Exeter is not alone. The University of Oxford has described similar difficulties with contract negotiations. For example, Glenn Swafford, the director of research services at the University of Oxford and a man with direct experience of negotiating commercial contracts, has provided examples of exactly these sorts of difficulties. In one case, the university was in negotiations with a large multinational company for a studentship involving 24,000 funding. Significant resources went into the negotiations, with FOI being the major sticking point. The contract was not signed, and although a one-off compromise was secured because the project in question was already under way, Oxford believes that the relationship has been permanently soured. The university has provided other similar examples of long and difficult negotiations.

The point is that large multinational companies have plenty of choices about who they choose to do business with. We want them to do business with UK universities. This Government and the one before them have done much to encourage this kind of research collaboration. But universities across the country believe that this legislation is a barrier to all that. We must take that risk seriously. As Universities UK has pointed out, my noble friend the Minister has argued that there is not enough evidence of harm to justify this amendment. I and others believe that if he examines the material that Universities UK has collected he will see that there is clear evidence of harm.

Secondly, much of what universities have argued has been about the consequences that this legislation may have in terms of people deciding not to invest in UK research. This will be a disaster. Companies do not generally publicise those types of decisions. That is not a reason for ignoring the risk to the UK's economic interests.

Therefore, I would like to ask my noble friend three questions. Does he acknowledge that universities have commercial interests, for example, competing for students, academics and research grants? Will he undertake to reflect on how far the current exemption for commercial interests extends to universities' competitive interests? Lastly, can he explain how or whether the exemption for commercial interests might apply where information does not have the quality of a trade secret, because it is not yet commercially exploitable, but nevertheless points towards commercially exploitable information, perhaps subject to further exploration or research?

I believe that we all want to send a clear message that this Government have our universities' best interests at heart, and wish to protect their standing in the world so that they are recognised internationally as institutions that produce high-quality research with integrity and in confidence. A moral decision has to be made to secure this philosophy. I hope that the Minister will think again and look favourably on this amendment.

Photo of Baroness Blackstone

Baroness Blackstone (Labour)

My Lords, I support both Amendment 55A and Amendment 56. I do not want to repeat all the arguments put forward by the noble Lord, Lord Sutherland, and the noble Baroness, Lady Brinton. I cannot support the amendment in the name of the noble Lord, Lord Lucas. I must admit that I found it exceedingly difficult to follow what he was saying at various points in his speech. Perhaps the Minister can reflect on the issues that he raised and explain them to the rest of the House. I also felt that the noble Lord had misunderstood some of the things said by the noble Baroness, Lady Brinton, who was referring to the release of research data before publication, not after it. I think he was confused about that.

I want to reinforce two points. The first has already been raised today, and I raised it in Committee, which is the cost of all this to universities, and higher education institutions in general, when they have to release enormous amounts of data, prepare them for reuse and sometimes have to redact large amounts of data. Can the Minister reassure the House that he will look again at the regulations that relate to charging for such work? Otherwise, publicly funded institutions will have to spend large amounts of taxpayers' money on requests to release information which may be justifiable in the public interest, but where the cost may be too high to make it desirable.

I also want to reinforce the point made by the noble Baroness, Lady Benjamin. Universities are slightly difficult to define as institutions. They are not public bodies under any conventional definition, although they are of course in receipt of substantial amounts of public money. It would be helpful to the House if the Minister could reply to the noble Baroness's questions about how they are to be defined with respect to commercial interests. The work that they undertake in knowledge transfer may have substantial commercial impacts on them. We need to know whether something which may not be a trade secret but may eventually lead to viable, commercially exploitable data and work should be defined as commercial.

Photo of Lord Phillips of Sudbury

Lord Phillips of Sudbury (Liberal Democrat)

My Lords, I speak as Chancellor of the University of Essex and as a lawyer who has spent a good deal of his professional time dealing with issues of publication of research, in particular in relation to the Association of Medical Research Charities. I support the amendment moved by my noble friend Lady Brinton and all the arguments advanced in support of it.

I shall make two points. The first is strongly to support what Universities UK has requested, as mentioned by my noble friend Lady Brinton. If ever there was an area of law and practice in need of thorough practical review and, as far as possible, simplification, it is this, because it is a nightmare at the moment and getting worse. Without my noble friend's amendment, or something like it, it will get a lot worse. The noble Lord, Lord Oxburgh, made the point that it would be severely self-damaging if we in this place were to encourage a state of affairs that put us at a competitive disadvantage with other countries.

I emphasise that this is a playground for lawyers and a nightmare for everyone else as it is because the judgments on the different aspects of this extremely difficult balancing act between freedom of public information on the one hand and necessary and proper restraint on the other could not be more complex. I do not envy my noble friend in having to summarise the debate, but I hope that the Government will take the Universities UK request seriously and urgently and that he will be able to support the practical and sensible points in the amendment moved by my noble friend Lady Brinton.

6:15 pm
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Lord Judd (Labour)

My Lords, this country desperately depends on the quality of research in universities. Our future depends on its quality in economic but also in social terms. I am concerned about the chilling effect of the present situation. Young researchers beginning to flex their muscles in applying their originality of thought and their intellectual excellence feel that they have to be very careful about how they do that, lest something is taken out of context and used by people for purposes which have nothing to do with objectively trying to assist good research.

I have seen a circular used in a university sent from people in the administrative department not only to younger members of staff but quite widely to staff reminding them of the hazards of the Freedom of Information Act and the need for them to take great care in the way they approach their contribution to research. That made a huge impact on me when I saw it. I thought it was the beginning of the end. It had a cooling effect, a chilling effect. What should have gone out, if anything, was a robust letter saying, "We are determined as a university to support our researchers in every way possible, whatever the implications under the Freedom of Information Act". I am fully in favour of the principles of the Freedom of Information Act, but to pretend that there is not a tension here, with dire consequences if it is not properly handled, is stupid. It would be wise of the Government to listen carefully to what was said in moving the amendment and to take seriously the experience and concern of Universities UK.

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Lord Bew (Crossbench)

My Lords, I support Amendments 55A and 56. I must confess the interest of being a working professor in one of our universities. I thank the noble Lord, Lord Henley, who has spent much time with those of us who have been concerned about these matters. I am very grateful to him for that.

The Government's view is that the exemptions already present mean that many of the fears held in this Chamber are unjustified. I want to make one brutal, simple and crude point, which partly picks up on the points already made by the noble Baroness, Lady Benjamin. We must think about multinational concerns and how the country is viewed from outside. For example, let us take the case of our libel law. Our senior judiciary genuinely believes that it is wrong to believe that London is the libel capital of the universe. Genuinely, it says, "If you look more closely at the facts of the case, it is not quite so". Perhaps that is right; perhaps it is wrong. The world has made up its mind that London is the libel capital of the universe. That clearly affects the way that the world behaves. It may be unfair, but the world has made up its mind. Similarly, in this case, it is not worth taking the risk of the world making up its mind that there might be this or that exemption in existing law but somehow universities in the United Kingdom are not as secure places to invest in research as universities in France or the Republic of Ireland-or even in Scotland-where there are higher barriers. I wish to underline that brutal point about international perception.

Unfortunately, my noble friend Lady O'Neill has had to go. I want to make one point which I know was on her mind in moving her amendment. Her concern relates to public authorities-here, meaning universities and other publicly funded institutes-being required to release research data sets on which they hold copyright in a reusable form without any conditions on their subsequent dissemination. A research data set that is released without conditions on its further use is, in effect, made available to the entire world and so will be fully available in jurisdictions where respect for intellectual property is poor and remedies for its violation are non-existent. In other words, we are talking about something entirely different from the case involving Cambridge, King's College London and Professor Crick, which we talked about earlier. It is an entirely different utilisation of another person's data set.

I was discussing this with a distinguished researcher at our university at the weekend. She said to me, "Actually, I'm sitting on a very sophisticated data set and it is just about possible that I am not asking the rights questions of it. There might be somebody in another United Kingdom university who would ask different questions and could do something with it. It is just about possible that that might be so". However, the danger-and it is the concern that the amendment of my noble friend Lady O'Neill addresses-is: if we do not control the reusable aspects of such an exchange, we will leave ourselves open in a way which is not sensible from a national point of view. I am sure it is the view of my noble friend Lady O'Neill that we cannot ignore the reality that science is both international and competitive and that sophisticated science is now done in some places where there is scant respect for intellectual property. An unreciprocated requirement for United Kingdom university researchers to provide any data sets that they create and hold without any conditions on their republication or dissemination will damage the competitive position of UK researchers and so of UK science.

Photo of Baroness Sharp of Guildford

Baroness Sharp of Guildford (Liberal Democrat)

My Lords, I have spoken before in favour of Amendment 56 and shall not repeat the arguments which illustrate how much work goes into cleaning up the raw data necessary to form data sets to develop meaningful analysis and the problems that can arise from forced distribution before those data have been properly presented and analysed.

I should like to reinforce the arguments made around the Chamber about what a disincentive to young researchers it is if they feel that all their work can be poached and used by somebody else. As the noble Lord, Lord Oxburgh, mentioned, it is also open to foreign researchers to poach and make use of those data, pre-empting the results. Similarly, it can be a disincentive to commercial collaboration, although, as the noble Baroness, Lady O'Neill, suggested in relation to her amendment, one way to prevent the data being poached is to collaborate with a commercial partner. However, at a time when Her Majesty's Government are trying to encourage collaboration between commercial partners and universities, it seems very unfortunate to encourage the use of freedom of information in this way.

What I cannot understand is the Government's opposition to the amendment. Effectively, this scheme has been piloted in Scotland and has been found to be very satisfactory. It is very unusual for us to have legislation that has been piloted in this way. Given that it has proved so satisfactory, I cannot understand why the Government are so resistant to accepting it.

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Lord Nickson (Crossbench)

My Lords, I have made a rare appearance here because I thought that the Scotland Bill would be coming up yesterday and was suitably disappointed. I did not come to speak in this debate. However, having spent a lifetime in industry and having also been fortunate enough to be the chancellor of a very junior Scottish university to that of my noble friend Lord Sutherland, I should like to say to the Minister and the Government that I have never heard a debate in this House containing such conviction, unanimity and passion, and given with such authority from so many sides. I am deeply impressed by what I have heard. I merely rise to support the amendments and to plead with the Minister and the Government to take what has been expressed with great seriousness.

Photo of The Earl of Erroll

The Earl of Erroll (Crossbench)

My Lords, I should like to add a couple of words to the debate. I have a sort of interest in that I am helping a New Zealand company called Pingar, which works in the area of contextual data extraction from large unstructured data sets-what are called "big data".

One is aware that there is a huge amount of information out there, particularly in public data sets, which can be reused very usefully, and on that I agree with most of what the noble Lord, Lord Lucas, said. We must try to make this information available in useful ways. We could make a lot more use of this information to help the country, and indeed humanity, as a whole.

I agree entirely with the noble Lord that the definition of data set is most peculiar. When information is analysed and put into tables and some sense is made of it, further information may then be extracted and combined with other data, and that is probably the best use that can be made of it. Therefore, it seems a bit odd to include in the definition only raw data before it is analysed. However, it is probably that I just do not properly understand the Bill and all its ramifications in that area.

However, there is an area where I sympathise entirely with these two amendments. A research establishment in a university is publicly funded and is at the cutting edge, and it may spend a lot of money acquiring raw data. Having to reveal those data to someone else before anything is done with them is like giving that other person a free ride regarding all their data acquisition. Why should someone not be second into the field, waiting until someone else has spent all the money acquiring the data, asking for the data set and then running their own analysis? For a researcher, the most valuable part is the raw data.

I found it fascinating that on Amendments 55ZA and 55ZB the Minister was urging secrecy-we had to keep all this stuff from the Civil Service secret so that citizens could not find out whether their money was being used usefully. Now, we are opening up everything where public money has been spent so that UK plc can advance itself in the research area and so on. We are suddenly opening that up so that anyone can get hold of it.

The first of the two amendments relates to putting copyright restrictions on data sets to make sure that they cannot be taken freely, yet in other legislation the Government are making sure that we give large amounts of money to large American corporations which have bought copyright from British creators so that they can enforce that copyright. Therefore, we are looking after the interests of large commercial companies but we are not looking after the interests of our research establishments and universities. I am terrified that they are going to lose the competitive edge that they might have.

The interesting thing that came out of the whole Crick/Watson DNA episode was the fact that they got together-there was a meeting of minds in an informal environment where they exchanged ideas. Again, what worries me is that the Government are trying to prevent that with their Immigration Rules and tier 2 immigration arrangements so that we will no longer attract people and encourage a flow of brains in and out of the country. That would be far more valuable than trying to open up data sets so that other people could use them abroad.

Photo of Baroness Royall of Blaisdon

Baroness Royall of Blaisdon (Labour)

My Lords, I support Amendments 55A and 56. I do not believe that this is about restricting the scope of the Freedom of Information Act; it is about fixing the Act to fit the purpose. We have heard compelling arguments about disincentives to young researchers and to collaboration and about the potential competitive disadvantage that our universities could suffer. Our universities are one of the most important drivers of jobs and growth in this country. They enrich the cultural fabric of our society. If universities in England, Wales and Northern Ireland believe that they are at a competitive disadvantage compared with those in Scotland, the US and Ireland, among others, I believe that we need to have a safeguard in place. We should heed their concerns and seek to revise our legislation as soon as possible. I support both amendments.

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Lord Henley (Conservative)

My Lords, some time ago my noble friend Lord Phillips of Sudbury said that he was looking forward to me summarising the gist of this debate. I have to say to him that I do not think I am capable of doing that and I am not going to attempt it. However, I was grateful for one or two comments from just one or two out of a large number of speakers. I single out the noble Lord, Lord Judd-perhaps I may refer to him as my noble friend, as he comes from the same county as I do. He referred to the importance of the principles behind the Freedom of Information Act. I think that it would have been slightly more helpful if we had heard a bit more in support of the principles behind that Act and what it was set out to do. It was an Act passed by the previous Government and one that we, under no circumstances, want to roll back at all. We understand the concerns put by the higher education sector.

I would never be one to underestimate the concerns of the higher education sector, a sector that is probably better represented in this House than any other group in the country. I have been higher education spokesman in this House on two separate occasions so I know how powerful a body it is. Therefore, we listen to it with great care and I will take considerable care in everything I say. For that reason, I remind the House, as my noble friend did on an earlier amendment, that there will be a full post-legislative review of the workings of the Freedom of Information Act. That review is being carried out under my right honourable friend Alan Beith, the chairman of the Justice Committee in another place, and I shall certainly ensure that he gets a copy of this debate. Even if I did not send it to him, I am sure that he would take note of it.

As I said, I do not think it is up to me to try to summarise the debate, but I want to try to allay some of the concerns that have been put by noble Lords. I start by dealing with the amendment moved by the noble Lord, Lord Sutherland, on behalf of the noble Baroness, Lady O'Neill. I fully accept her apology. I saw her at lunchtime today and I know perfectly well that she was not able to be here. Similarly, I say to my noble friend Lady Brinton that I knew that the noble Baroness, Lady Warwick, was not able to be here. One of the problems with the way in which we do business is that sometimes things happen and it is impossible for noble Lords to be present for a debate.

In his new amendment, the noble Lord seeks to amend our new Section 11A of the Freedom of Information Act by making a further provision in relation to the conditions that may be specified in a licence authorising the reuse of copyrighted data sets. The intention behind the noble Lord's amendment is to ensure that such licences contain conditions which restrict republication or communication of data sets to third parties. As currently drafted, the Bill provides that public authorities, when making their data sets available for reuse, must use one of the specified licences which will be set out in the code of practice in due course. This amendment seeks to allow the specified licences to set conditions on republication or communication of the data set to third parties.

I do not believe that the noble Lord's amendment is necessary because the specified licence may already set any conditions such as these. Whereas previously public authorities could have relied on their powers under copyright law not to allow reuse of their data sets, Clause 102 will allow all public authorities to license the reuse of data sets for which they hold the intellectual property rights, to the benefit of the public and in accordance with the Government's commitment on transparency.

The terms of the licences for reuse will be specified in the revised code of practice, which will ensure that standardised licences are used so that public authorities-universities-know what is required and the public know what to expect. Published licence terms will provide clarity, certainty and consistency as to how information and data can be reused. In most cases, public authorities will use the open government licence to make data sets available for reuse. Public authorities across the wider public sector are increasingly making their information, in particular their transparency data, available under the open government licence. The Government encourage the adoption of the open government licence throughout a range of policy guidance and by working with stakeholders.

To the extent that we are affecting public authorities' copyright rights, it is only in relation to making data sets available to the public for reuse under licence. If information is held by the public authority but is not owned by it, it is most likely that the rights to the information will be owned by a third party and therefore it would not have the authority to license its reuse. The clause does not affect any other rights and the licences will still require acknowledgement of the data sets' ownership and source when reused, and will not allow for distortion, derogatory treatment or misrepresentation.

By setting out the specified licences in the statutory code of practice, it will ensure that standardised licences are used, and these licences will cover all conditions on reuse which are considered appropriate. The statutory code of practice will be issued by the Secretary of State, who must consult the Information Commissioner and then lay the code before Parliament so that Parliament will have a chance to see it. However, licensing conditions, including any conditions on reuse, would be a matter for consideration when revising the code of practice. It is not appropriate to prescribe some of the conditions, as proposed by the noble Lord in the amendment, in primary legislation.

The noble Lord also made some significant general points about the Freedom of Information Act and it is important that I address those, but I propose to address them in the context of my noble friend Lady Brinton's Amendment 56.

Before considering that amendment, I turn to Amendment 56ZA, in which my noble friend Lord Lucas has suggested that the whole clause could be removed in its entirety. I suppose that might be a solution for all noble Lords. We could start from scratch, but I am not proposing that at the moment. However, as my noble friend has indicated, his main purpose is to probe the definition of a data set, as provided for in this clause. I am grateful to him for meeting me last month so that I could better understand his concerns. I am also grateful to other noble Lords who came to a whole series of meetings. I have a sneaking suspicion that in this debate I should be offering yet further meetings with any noble Lords who wish to have them so that we can sort this out. This is something that we need to get straight before Third Reading.

The Freedom of Information Act provides the public with a right to access information that is held by a public authority as defined by the Act. The intention of Clause 102 is to make available for reuse as much raw data held by public authorities-universities in this case-as possible so as to encourage greater transparency and accountability. The clause brings together access and reuse, and the Government believe that encouraging greater use of raw data sets and their reuse under licence will allow the public and organisations to use them, for example, to develop new applications.

The definition of a data set in new Section 11(5) of the Freedom of Information Act is necessary as there is currently no such definition in that Act. However, I assure my noble friend that, in providing for a particular definition of a data set for the purpose of the new duty to release such data sets in a reusable format, we are not prohibiting the release of other data sets that have been subject to alteration or analysis, as they are already provided for in the Freedom of Information Act. It is important to be precise with the definition so that public authorities know what is expected of them when releasing raw data sets for reuse under the Act.

Amendment 56, in the name of my noble friend Lady Brinton, seeks to introduce a new exemption in the Freedom of Information Act to provide enhanced protection for information relating to research programmes and projects. In responding to the points made by my noble friend and others, I hope that I will be able to provide appropriate reassurances on this issue. We are all agreed that the UK's position at the forefront of international research must be protected and enhanced. I would not want to do anything that could endanger that. We are also agreed that, notwithstanding this Government's commitment to transparency, adequate safeguards must exist within information rights legislation to make sure that that position is not undermined through inappropriate and premature disclosure. We understand the point that the universities made. From discussions that I have had, from the debate and from Committee, I am well aware of the concern that exists in the sector on this issue.

Before outlining why I believe that adequate protection already exists, I will consider the cost of responding to requests. This point was raised by a number of noble Lords, in particular the noble Baroness, Lady Blackstone. Although a new exemption would not provide protection in this regard, I am aware that, for example, the cost of anonymisation and redaction is of major concern. The noble Baroness and others made that point. I assure her and others that the Government are mindful of that, and of the costs that it would bring to public authorities.

The Freedom of Information Act, passed by the previous Government, provides that where it would cost more than a certain amount to locate information that has been requested, there is no obligation to provide it. The cost limits beyond which freedom of information requests need not be complied with, and the mechanisms for charging for information, are detailed in the Act and in regulations made under Sections 9, 12 and 13. I have the sections in front of me if noble Lords wish to study them in detail. These arrangements apply across the entire public sector, not just to higher education. It is therefore important that, while cost limits and fees should take into account the views of particular sectors, any discussion about correct levels should be conducted in the round.

As I mentioned, the Act is currently subject to post-legislative scrutiny. It is for the Justice Select Committee in another place to make sure that it considers it in the right manner. I anticipate that it will want to look at what has been said. Therefore, I repeat that I will certainly write to Sir Alan and make it clear that we debated this in Committee and today, and I will make sure that the concerns first enunciated at Second Reading by the noble Baroness, Lady O'Neill, are relayed to him.

In relation to Amendment 55A, the noble Lord, Lord Sutherland, questioned whether it was appropriate to amend the Act before the outcome of post-legislative scrutiny was known. That concern, too, was put to me in Committee. Through the Bill, we are introducing key transparency commitments set out in the coalition agreement. In the much wider exercise of post-legislative scrutiny we will look at what other changes could usefully be made to improve the Freedom of Information Act for the public and for all bodies subject to it.

I appreciate the argument that the Government have asked Parliament to undertake post-legislative scrutiny of the Act and that we ought to wait for the outcome of the review before introducing Clause 102. However, we see the new right to data sets available for reuse as a different matter, and we are committed to implement our commitment to transparency and open data to release the benefits to the public as soon as possible. However, I will offer some reassurance on the timing of the commencement of Clause 102. As I indicated, we will need to revise the code of practice made under Section 45 of the Freedom of Information Act before the provisions can be brought into force. That will necessarily take time, and public authorities will need adequate notice. Given this, we do not envisage commencing the provisions before the summer, which will allow the post-legislative scrutiny process to take its course without delaying the commencement of the clause. We are committed to ensuring that the Freedom of Information Act works effectively, and post-legislative scrutiny is key to this.

I turn back to some of the exemptions. The key is for the Government's desire to ensure an appropriate level of transparency in public life not to undermine the ability of universities to carry out the sort of ground-breaking research for which they are justly renowned. In the ever more competitive environment in which our higher education institutions operate, the ability to do so free from obligations to reveal their thinking at too early a stage is crucial. The Freedom of Information Act seeks to achieve this balance by providing exemptions to the obligation to disclose material in response to a request made under the Act. The Act currently achieves exactly that balance. The noble Baroness, Lady Royall, was no doubt part of the team that steered the Act through this House.

As I said in Committee and in further meetings with noble Lords, a number of exemptions protect research-related material. Therefore, the amendment provides alternative protection rather than necessary additional protection and is not necessary. Protection already exists in Section 43 for trade secrets and for information the disclosure of which would be at least likely to damage commercial interests, and in Section 41 for information provided in confidence. I think that we are agreed that it would be improper to provide an absolute guarantee of confidentiality in relation to research programmes, because the Act does not do so for any other type of commercially sensitive information. It is therefore appropriate for Section 43 to be subject to a public interest test in this context, as it is in all others. My noble friend's proposed new exemption would also be subject to both a public interest and a substantial prejudice test, so she cannot believe otherwise.

I am aware of other concerns relating to the scope of Section 43: for example, concerning its ability to protect information where future commercial exploitation is the long-term aim but is not yet realisable owing to a research programme being at an early stage. Concerns have also been raised about situations where a university's financial and academic position may be undermined, and damage may be done to its ability to secure funding, to its research ratings or to its ability to attract high-calibre students. Again, these are entirely legitimate concerns. It is important that universities should be able to compete in an increasingly demanding marketplace.

It is not for me to prejudge any request that might be submitted; it will be for the Information Commissioner to determine whether any decision taken by a university to employ an exemption is correct. Therefore, my further remarks will be hypothetical in nature. Section 43 will be relevant where commercial prejudice is likely, and may be used where the public interest test favours non-disclosure. I see no reason, for example, why in an appropriate case the exemption should not cover an early-days case of the sort I mentioned. The information that a particular research team was looking into an issue could itself be commercially damaging if it enabled a rival to gain an insight into the methods the team intended to use that it would not otherwise have had. This might be so despite the fact that details of the research were not yet available for commercial exploitation. As always, the facts of the case will be key and the university will have to show that there would be commercial prejudice and that the public interest favoured non-disclosure.

I appreciate that I have spoken at length. I could go on about other exemptions-for example, in Sections 40 and 22-but now is not the time to do so. I will repeat, first, that we have a commitment to greater transparency, which is why we will not introduce new exemptions into the Freedom of Information Act unless the necessity for doing so is clearly demonstrated. Secondly, post-legislative scrutiny is taking place, and that will be the time to look at these matters. Having said that, I repeat that I am more than happy to have further discussions with noble Lords between now and Report.

6:45 pm
Photo of Lord Sutherland of Houndwood

Lord Sutherland of Houndwood (Crossbench)

My Lords, I thank the Minister for his very careful reply, the care he has taken over the various points made and his willingness to have further discussions. I have no doubt that that offer will be taken up.

However, I have two or three points. First, I have no doubt that the commitment to freedom of information is as strong among those who proposed these amendments as it is with the Government. In fact, one of my prouder moments, many years ago, was when I was given an award by the society that campaigned for what became the Freedom of Information Act because of the way I conducted a particular government inquiry. I am committed to the importance for public services and within the public sector of freedom of information.

Secondly, I will read with care what the Minister said about licences. One question that I will want to have answered-it may well be in Hansard-is about what degree of input a researcher, a research institute or a university will have into the drawing up of the licence that is applied to a particular publication. I am not yet clear whether Rosalind Franklin's photographs would have fallen under the definition of a data set. If they had fallen under that definition, I do not think the cause of science or human life would have been advanced by having them accessible to whoever wanted to use the Freedom of Information Act to drag them up at that stage.

My third point is on the costs of responding. I chaired a group that advised a research project in Scotland called Generation Scotland. I shall not go into the details, but it was shot through with personal information. I can reassure the Minister that the cost of redacting any of that would be immense. Indeed, such is the sensitivity at a personal level of some of the information that the body responsible for managing it allows no one individual access to the whole data set. It is a double-lock situation, and that is absolutely right. That is not against the public interest; it is in the public interest and that of the 15,000 families in Scotland that have contributed very sensitive information for that research.

I welcome the comments and look forward to more detail on the timing of the commencement of Clause 102. In closing, I simply re-emphasise the point made by my noble friend Lord Oxburgh. We are talking about information for the public. In this case, the public is the entire world. The public is every competitor we have in the research business and in the commercial business that will spin out from it. That is still the real concern.

With the intention of discussing this with my noble friend Lady O'Neill, at this stage, I withdraw the amendment.

Amendment 55A withdrawn.

Amendments 56 and 56ZA not moved.

Amendment 56A

Moved by Lord Berkeley

56A: After Clause 104, insert the following new Clause-

"Public authorities

(1) The Freedom of Information Act 2000 is amended as follows.

(2) In Part VI (other public bodies and offices: general) of Schedule 1 (public authorities), after "The Consumer Panel established under section 16 of the Communications Act 2003" insert "The Corporation of Trinity House"."

Photo of Lord Berkeley

Lord Berkeley (Labour)

This amendment is designed to include Trinity House within the scope of the Freedom of Information act. The noble Lord, Lord Henley, has reminded the House this evening that a review of the FOI Act is going on, which is very welcome, but I am hoping that the Government will accept my amendment on the basis that they have already committed to include Trinity House in the FOI Act, as I shall demonstrate, and it would save a lot of time and effort.

Trinity House is the lighthouse and navigation aids authority that maintains the navigation aids around the coast of England and Wales. I think it should be included because I believe it is a public body. Ships going into UK ports pay light dues into a central fund called the General Lighthouse Fund, which is administered and disbursed by the Department for Transport to the three lighthouse authorities in England, Scotland and Ireland. This amendment would bring Trinity House in line with the Northern Lighthouse Board, which looks after the lights in Scotland and is already covered by FOI. If Ministers are concerned about how much extra work it would be for the GLF, I understand that the Northern Lighthouse Board has received just over 40 FOI inquiries, so I do not think it is any great effort for lighthouse authorities to be included.

I thought of including the Commissioners of Irish Lights in this amendment, but since the Minister for Shipping, Mike Penning MP, is at the moment negotiating with the Irish Government a very welcome change so that the lights around Ireland are not funded by ships going into UK ports by the time of the next election, I thought I would leave the Commissioners of Irish Lights out.

The Independent Light Dues Forum wrote to the Ministry of Justice on 25 January 2011 welcoming the ministry's announcement about opening public bodies to public scrutiny and the possibility of including Trinity House within FOI. The ministry responded on 23 February last year saying that Trinity House would be consulted about possible inclusion, which is absolutely right, of course. On 5 May, I received a letter from the noble Lord, Lord McNally, that stated:

"We intend to extend the Act to bodies which we believe to perform functions of a public nature, such as the Trinity House Lighthouse Service, through secondary legislation under section 5 of the Act rather than the Protection of Freedoms Bill".

He did not say why. It would achieve the same objective if this Bill were amended now.

When she replies, will the Minister say why it matters which legislative route is to be used to deliver the same outcome? I think it is quite important that this happens quite quickly. It is a year since this was first raised, and I hope that the Minister will accept my amendment, if only to avoid me bothering her again. I beg to move.

Photo of Baroness Stowell of Beeston

Baroness Stowell of Beeston (Conservative)

My Lords, I am grateful to the noble Lord, Lord Berkeley, for his introduction of his amendment. As he explained, the Government announced on 7 January last year our intention to consult a number of bodies about them being subject to the Freedom of Information Act by virtue of an order made under Section 5(1)(a) of the Act. It is a shame that the noble Lord, Lord Wills, is not in his place because this is relevant to the earlier debate.

A body may be included in such an order to the extent that it exercises functions of a public nature. As the noble Lord, Lord Berkeley, said, this consultation includes the Trinity Lighthouse Service and is currently ongoing. The consultation process is an important one. It is designed to ensure that all relevant legal and policy factors are considered before a final decision is made about whether some, or all, of the functions of a body such as Trinity House should be covered by the Act.

The Corporation of Trinity House undertakes a number of important functions. Without wishing to express a view while the consultation is ongoing, I can understand why the noble Lord might consider its functions as a general lighthouse authority to be the sort of thing that could be covered by the FOI Act. As he said, the letter that he received from my noble friend Lord McNally stated that to be the case. The fact that the Northern Lighthouse Board is already covered obviously provides another point of comparison.

However, the Corporation of Trinity House also undertakes a number of other functions as a charity and as a provider of deep sea navigation pilots for ships trading in northern European waters. In light of this, we need to consider carefully which, if any, of the corporation's functions should be brought within the Act. The consultation process currently taking place is designed to allow for this sort of consideration to take place.

In response to the noble Lord's specific question about why it cannot be done via this Bill, I have two points. First, the process of consultation is already under way. As he knows better than I, Trinity House is a complex organisation because not all of its functions would be captured by public authority functions. It is something that requires careful consideration. That has started; it is under way. Secondly, as I said to the noble Lord, Lord Wills, in an earlier debate, the Freedom of Information Act provides the facility for us to extend the scope of the Act to a public authority, or at least part of an authority that has public functions, such as Trinity House, and that is under way.

If we were to accept this amendment now, we would effectively be pre-empting the outcome of the current consultation. The consultation must be allowed to run its course. Having made the case for bringing Trinity House within the scope of the Act, and in light of me having repeated and restated the points that my noble friend Lord McNally made to him in his letter last year, I hope that the noble Lord feels able to withdraw his amendment.

7:00 pm
Photo of Lord Berkeley

Lord Berkeley (Labour)

Perhaps I might ask the noble Baroness about the length of the consultation period. The letter that I quoted from, dated 5 May 2011, from the noble Lord, Lord McNally, said:

"We are currently in the process of consulting the bodies concerned".

It is very unusual for a government consultation to go on for nine months. Have the Government started another consultation? It is very good to have such long consultations, but it is a bit unusual. When is the consultation on the Trinity House issue going to finish? I would be very grateful for the noble Baroness's response.

Photo of Baroness Stowell of Beeston

Baroness Stowell of Beeston (Conservative)

We certainly plan to conclude the consultation fairly soon, and to bring an order under Section 5 for all the new public bodies that we are currently consulting on later in the year.

Photo of Lord Berkeley

Lord Berkeley (Labour)

I am very grateful to the noble Baroness for that answer and I beg leave to withdraw my amendment.

Amendment 56A withdrawn.

Amendment 57 had been retabled as Amendment 57A.

Amendment 57A

Moved by Lord McColl of Dulwich

57A: After Clause 110, insert the following new Clause-

"Legal advocate for child victim of human trafficking

(1) It shall be a requirement that each child who might have been the victim of a human trafficking offence shall have a legal advocate appointed to represent the best interests of that child if the person who has parental responsibility fulfils any of the conditions set out in subsection (3).

(2) The legal advocate shall have the following responsibilities-

(a) to advocate that all decisions taken are in the child's best interest;

(b) to advocate for the child to receive appropriate care, accommodation, medical treatment, including psychological assistance, education, translation and interpretation services;

(c) to advocate for the child's access to legal and other representation where necessary;

(d) to consult with, advise and keep the child victim informed of legal rights;

(e) to contribute to identification of a plan to safeguard and promote the long-term welfare of the child based on an individual assessment of that child's best interests;

(f) to keep the child informed of all relevant immigration, criminal or compensation proceedings;

(g) to provide a link between the child and various organisations which may provide services to the child;

(h) to assist in establishing contact with the child's family, where the child so wishes and it is in the child's best interests;

(i) to attend all police interviews with the child; and

(j) to accompany the child whenever the child moves to new accommodation.

(3) Subsection (1) applies if the person who has parental responsibility for the child-

(a) is suspected of taking part in a human trafficking offence;

(b) has another conflict of interest with the child;

(c) is not in contact with the child; or

(d) is in a country outside the United Kingdom.

(4) In subsection (1), a legal advocate may be-

(a) an employee of a statutory body;

(b) an employee of a recognised charitable organisation; or

(c) a volunteer for a recognised charitable organisation.

(5) Where a legal advocate is appointed under subsection (1), it shall be a requirement that any relevant agency recognises the authority of the legal advocate in relation to the child.

(6) In subsection (5), a "relevant agency" means a person or organisation which-

(a) provides services to the child; or

(b) the child needs access to in relation to being a victim of a human trafficking offence.

(7) The Secretary of State-

(a) shall by order set out the arrangements for the appointment of a legal advocate;

(b) may make rules about the training courses to be completed before a person may exercise functions as a legal advocate; and

(c) shall by order designate organisations as a "recognised charitable organisation" for the purpose of this section.

(8) In this section-

"human trafficking offence" means an offence under section 59A of the Sexual Offences Act 2003 (trafficking people for sexual exploitation) or an offence under section 4 of the Asylum and Immigration (treatment of Claimants, etc.) Act 2004 (trafficking people for labour and other exploitation); and

"parental responsibility" has the same meaning as section 3 of the Children Act 1989."

Photo of Lord McColl of Dulwich

Lord McColl of Dulwich (Conservative)

My Lords, Amendment 57A is in my name and those of the noble Baroness, Lady Royall of Blaisdon, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile of Berriew. These names demonstrate the widespread support across the House for what I believe is a very important amendment.

On 25 November last year, during a debate on my trafficking Bill, one subject came up again and again: the plight of rescued trafficked children in the United Kingdom. Although my Bill is wide-ranging and touches on many different aspects of tackling trafficking, it was to this subject that speaker after speaker chose to return. At the very heart of the concern is the fact that the reports of the Child Exploitation and Online Protection Centre demonstrate that between 2007 and February 2010, out of 942 trafficked children who were rescued in the United Kingdom, a staggering 301-one-third of the children-were lost. I understand and warmly welcome the fact that in the past year the loss rate fell to 18 per cent, but this is still a completely unacceptable situation.

It brings to mind the small boy called Bao, who comes from Vietnam. When Bao's mother fell ill, the family needed to take a loan out to cover the cost of her healthcare. In return, Bao was told that he needed to come to the United Kingdom to work off the loan. Your Lordships can predict what happened on his arrival. Bao was initially forced to work as a domestic servant but later was moved to a cannabis factory, where he cultivated plants throughout the day and night.

After a police raid, Bao was arrested and prosecuted for the offences that he had committed while under coercion from his traffickers. Although he was eventually identified as a victim of trafficking, he remained very fearful of those who had exploited him. Desperate to return to his family, Bao was devastated to learn about the threats his family were receiving in his home country shortly after his rescue. As a result, he became very frightened for their safety and disappeared from local authority care. Bao remains missing and is presumed to be back in the hands of his traffickers.

This is the precise situation that Amendment 57A seeks to address. The reality of trafficked children is that they are extremely vulnerable and need appropriate and specialist support once rescued from their situation of exploitation. It is an incredibly sad reflection on our priorities as a nation that we should take such poor care of these extremely vulnerable children. First, they are kidnapped or lured under false pretences and trafficked to the United Kingdom, a foreign country with a foreign language, usually far away from their families. Then they are rescued and all too often while in local authority care they are lost, probably retrafficked. I find it hard to conceive that we are not doing more to help these children.

It is important to be clear that Amendment 57A is not just about trying not to lose rescued trafficked children but about ensuring that they receive proper levels of care when they are not lost. In providing a constant reference point, the provision of a legal advocate will help address the distressing experience of these rescued children, who are passed from official to official, denied any sense of continuity and required to go back to the beginning and recount their painful story again and again. There are also accounts of children turning up to court and discovering that their social worker is not present. The provision of a legal advocate will mean that even if a social worker is not able to attend court, the child need not be alone.

Of course, I am aware that the Government are concerned about this issue. However, they contend that the Children Act 1989 provides all the legal powers that are necessary to address this problem adequately. In the first instance, they point out that the Children Act places on local authorities a general obligation to protect the welfare of all children within their boundaries. The Act then makes provision for three relevant roles that can be called upon to assist a local authority as it seeks to rise to this challenge.

First, Section 26 of the Children Act makes provision for assistance in the form of advocacy services for a child who makes or intends to make representations to a local authority either under their case review or on any issue in relation to their care by a local authority. Secondly, Section 23ZB requires local authorities to appoint "an independent person" who should,

"visit, befriend and advise the child"

if they think it is in the child's best interests. Thirdly, Section 25A requires local authorities to appoint an "independent reviewing officer" for each child in their care. These responsibilities are defined by Section 25B as providing independent oversight, including monitoring the performance of the local authority in respect of each child's case.

However, there are at least two problems with the Government's suggestion that the provisions of the Children Act will suffice. First, the loss of 32 per cent of trafficked children occurring in the context of the Children Act and its provisions hardly suggests that the Act is fit for the purpose of protecting trafficked children. We would all recognise that their needs were not at the front of our minds in 1989 when the Act became law. Most of us had either never heard of the term "human trafficking" or were not aware of exactly what it meant.

Secondly, while the provisions of the 1989 Act are very welcome, they fall a long way short of the definition of the recommended best practice in the care of rescued child trafficking victims; namely, the provision of a child trafficking guardian. A trafficking guardian is someone who is appointed as soon as the child is identified as a victim of trafficking with the intention that they should remain in place during the child's case and until a long-term solution is found that is in the child's best interests. The guardian would accompany the child to all meetings with officials, be they in law courts, regarding education or with social services, where crucially they would be recognised and would have the right to advocate on the child's behalf.

There has been considerable confusion about the term guardian in the UK, partly because in our law the word "guardian" is generally used in the parental sense of parent or guardian, who is someone quite different. For that reason, I have given the role a different name in my amendment-namely, "legal advocate". However, to make what we are talking about really clear, the UNICEF guidelines on a child trafficking guardian are the basis of subsection (2) of the new clause proposed under Amendment 57A. There could then be no confusion about what is proposed.

When we look at the internationally accepted definition of a guardian for a trafficked child, the shortcomings of the current Children Act provision become all too obvious. I will set them out briefly. First, Section 26 advocates do not comply with the definition of a trafficking guardian because they advocate on the child's behalf only in relation to local authority case reviews and are not appointed from the moment a child is identified as a victim of trafficking but only if the child determines that they would like to avail themselves of their services, which raises an interesting question.

Last week, I spoke to a solicitor who pointed out that in making provisions for a Section 26 advocate, who crucially can be commissioned only if the child requests it, the Children Act assumes that the child in question is mature enough-probably 10 years old or more. The solicitor wanted to know how this would help the young trafficked children who had recently come to their attention: one was aged four months; one was one year old; and another was two years old. There are also "independent visitors" but they are not given the right to advocate on behalf of a child in all their engagement with the state. Instead, their role seems to be more of a befriending and advice service to the child in question.

Finally, there is the independent reviewing officer but they do not appear to accompany the children anywhere and are not required to have direct contact with the child between their reviews. I do not believe that these positions adequately rise to the contemporary challenge of human trafficking. It is very clear to me that, even viewed collectively, these roles do not provide anything comparable to what is understood today as a child trafficking guardian. I am delighted that the Children Act has been amended over the past 20 years to make provision for the advocate, the independent visitor and the independent reviewing officer. But that fact shows that the law changes and adapts to new best practice, as I am advocating that it should today.

Over the past several years, trafficking has become a lucrative business in the United Kingdom. Traffickers are clever and opportunistic, and stop at nothing when there is profit to be made. I think of a two year-old called Karolek who along with her mother was brought to the United Kingdom from eastern Europe and used as a means through which fraudulent benefits could be claimed. Both Karolek and her mother were rescued but her mother is now being groomed for sexual exploitation and is in no place to provide the best care for her child, leaving Karolek in a very vulnerable position. Had Karolek been given a legal advocate, the vulnerability of her situation would have been identified by someone with appropriate authority and action taken.

In short, I must tell the House that I am not persuaded, on the basis of the 32 per cent loss rate, the levels of care or the careful scrutiny of current provisions in the Children Act, that our current arrangements are satisfactory. It is for that purpose that I am today moving Amendment 57A. It has been designed with two main considerations in mind. First, it addresses the shortcomings of our current legal provision by requiring the provision of a legal advocate from the moment a child victim of trafficking is identified. The legal advocate role is defined using the UNICEF framework for what guardians should do for the victims of child trafficking under subsection (2)(a) to (2)(j) of the proposed new clause.

With these provisions in place, it is very much less likely that rescued trafficked children will be lost. Once rescued, they will have one consistent person advocating for their best interests and working to ensure a plan for their long-term welfare. While the child may have to deal with numerous officials, he or she will have the benefit of a focused and present point of contact and support who can advocate for the services that they need.

Secondly, Amendment 57A rises to the key challenge very mindful of cost, which appeals to me as a Scot. If child trafficking guardians were required and the state was to pay for them, the total cost would be considerable. As a good Scotsman, I am very committed to the policies that seek to place our public finances on a firmer foundation than they have been in recent years. As a good Conservative, I am also very committed to the idea of the big society and the concept of the big society legal advocate, which has been advanced by various parliamentarians in another place.

The truth is that charities and voluntary bodies are queuing up to make provision of the legal advocate role. They have been writing to me during the past week. Their frustration is that currently the law does not recognise them or enable them to play a proper child trafficking guardian role in the internationally recognised sense of the term and as reflected in the wording of my amendment.

Mindful of this fact, my amendment, which is supported by eminent Peers from all sides of the House, deliberately states:

"In subsection (1), a legal advocate may be-

(a) an employee of a statutory body;(b) an employee of a recognised charitable organisation; or(c) a volunteer for a recognised charitable organisation".

On the use of volunteers, I particularly underline the fact that, regardless of how one is appointed, this is no job for do-gooders with compassion but without proper training. Anyone serving as a legal advocate must be properly trained, be they paid or a volunteer. This is not incompatible with our traditions and is eloquently demonstrated not least by our volunteer magistrates system.

I am not suggesting that this will have no cost implications, but they will be limited compared with an alternative that is funded completely from the public purse. Furthermore, when one has regard to the cost to the state resulting from children going missing and the potential for ensuring that a child has good support through any criminal cases brought against traffickers, one can see that it constitutes an extremely good investment and excellent value for money. Amendment 57A presents a win-win opportunity. I beg to move.

7:15 pm
Photo of Lord Henley

Lord Henley (Conservative)

My Lords, perhaps it may be convenient if I briefly intervene at this stage. It might save some time later. It is certainly within the scope of the guidance in the Companion to Standing Orders if I speak now, but I assure my noble friends that obviously I will respond as Minister at the end of the debate.

I want to make one brief point to my noble friend. We have all listened carefully to his words and they have made a deep impact on us. Although these matters fall slightly outside my immediate area of responsibility within the Home Office, I am certainly content to ask colleagues in the Department for Education to invite the Children's Commissioner for England to review the current practical arrangements for rescued child victims of trafficking and to provide advice both to my right honourable friend in that department and to us in the Home Office. We will then be in a position to come back to these matters at a later stage.

I hope, with that assurance-I repeat that I am prepared to respond at the end of this debate-that my words might at least reduce the amount of time that we need to devote to this debate when there is a lot of other business to be taken this evening.

Photo of Baroness Royall of Blaisdon

Baroness Royall of Blaisdon (Labour)

My Lords, I thank the Minister for that short and welcome intervention, but my real tribute must go to the noble Lord, Lord McColl, for his tireless efforts on this issue and his splendid introduction to the amendment. It is said that a society should be judged on how it treats its most vulnerable members, and the children who have entered our shores to work in modern-day slavery are truly some of the most vulnerable in our society. The noble Lord, Lord McColl, has been an extraordinary advocate for all those who have been trafficked, but especially children. We all must have found the ages of the children mentioned this evening deeply shocking.

As the noble Lord said in the debate held earlier this month, the UK should be striving to be a beacon of good practice in this area, not simply doing the minimum to toe the line. When children are trafficked into this country, they often arrive alone and without any trace of where they have come from, with no way to communicate and without anyone who cares for their best interest. The lucky children will be picked up at the border, but others become known to the authorities only many months and sometimes years after entering the country, having been forced into prostitution or slave labour by their traffickers. Those children who are identified will come into contact with scores of extremely dedicated professionals-border agency staff, the police, social services, foster carers and lawyers-all of whom will have partial responsibility for their care, yet no single adult will have responsibility for providing advocacy for a child in all those situations.

The purpose of a guardian or a legal advocate is, as termed in this amendment, to mediate between all the different agencies on behalf of the child and to provide the continuous oversight and physical presence that they need while navigating the process. As the noble Lord said, between 2005 and 2009 32 per cent of child trafficking victims went missing from care. As a citizen, I am ashamed of that. Child victims of human trafficking need highly specialised protection because of the nature of the criminal world that we are dealing with. Human trafficking has a net value of $36 billion a year, with human lives as its commodity, and organised criminal groups will go to terrible lengths to abduct a child from care. Articles 14 and 16 of the EU directive require member states to implement measures that are tailored to the specific vulnerabilities of these children. The appointment of a guardian or legal advocate as described in the amendment would ensure that the UK is fully compliant with both the letter and the spirit of the directive in providing the child with a legal advocate who will provide advocacy for that child from the moment they are identified both in dealings with authorities and in court.

I hear what the Minister says and I am glad that the Government are now going to pursue these issues further with the Children's Commissioner, because I can think of no better person who can really push these issues forward. I hope that the Minister will be able to keep us informed of progress as the discussions take place, and of course I trust him to do that. However, I have to say that I am absolutely certain that the noble Lord, Lord McColl, will pursue these issues doggedly until he is satisfied that every child who is trafficked into this country has a legal advocate. I am confident that the issue will be pursued to its successful conclusion.

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Baroness Butler-Sloss (Crossbench)

My Lords, I, too, have put my name to this amendment. I declare an interest as the co-chair of the All-Party Parliamentary Group on Human Trafficking and a trustee of the Human Trafficking Foundation. I am also extremely grateful to the noble Lord, Lord McColl, for this amendment and for the dedication with which he has pursued both through his own Bill and during the passage of this Bill what is so needed for these children.

The amendment looks to one element of the needs of the most disadvantaged group of children in the world: those who have been trafficked, removed from their families, however inadequate the family situation may have been, and brought here, to a foreign country, where they probably do not speak the language, to become sex slaves, domestic slaves, thieves or minders of cannabis farms. As the noble Lord has told us, they have no family life, no chance to go to school or to lead the life of an ordinary child. This is modern child slavery, and how do we treat those who escape? The signing of the EU directive and the excellent strategy against human trafficking have put the Government on the right track. The issue is the extent to which the good intentions are actually carried out. I suggest that the United Kingdom is only semi-compliant with the directive, but we are all on the same side in trying to achieve the best possible outcomes for these children. I was delighted to hear the preliminary and most helpful comments from the Minister, but none the less I would like to continue to make the speech I have prepared.

Article 14 of the directive was set out by the noble Lord, Lord McColl, but how do we deal with it in England and Wales? As the noble Lord said, the care and protection of these children is covered by the Children Acts of 1989 and 2004. Local authorities have a statutory duty of care, protection and accommodation to children at risk. However, I agree with the noble Lord that the present set-up within social work care does not meet the needs of the trafficked child. At present, no one in this country has parental responsibility for such a child. Mothers and fathers have parental responsibility, and local authorities share parental responsibility if they have a care order, but under Part III of the Children Act 1989, not Part IV, parental responsibility remains with the parents, who may be anywhere in the world and may themselves have been the traffickers; so the child is in a sort of administrative limbo.

We know, as the noble Lord pointed out so graphically, that traffickers get in touch with children who go missing-and no one actually knows how many children do go missing. The figures on missing children generally, those within the UK as well as trafficked children, are seriously inaccurate. There is no effective trafficking database, but the figures given today, although I would be surprised if they are the total, are indeed shocking. Those children who remain with a local authority have no consistent person to whom to turn. They are exposed and subjected to a bewildering variety of processes over which they have no control with no consistent individual to help them surmount the hurdles set before them.

I also remind noble Lords that these are foreign children who do not necessarily speak English and have no one in this country with parental responsibility or who they know. One only has to contrast such a child with a child living in this country who comes to the threshold of care proceedings as being "at serious risk of harm". That child is always allocated a guardian for care proceedings, usually from CAFCASS. The amendment seeks to ameliorate this sad and most unsatisfactory situation.

I have to say, however, that the wording of the amendment is not perfect. The phrase "legal advocate", which I am afraid I suggested, may not be the best phrase. It is difficult to work out the best description of a person who should carry out the tasks, but the tasks themselves are much clearer. The person needs to be a mentor, a next friend and adviser to the child, and we have to find the best title for the individual carrying out this role. What we need for the trafficked child is someone who will be around at the end of the phone, will meet the child, will know when the child goes missing and will alert the agencies to find them. The person would help to arrange all the services needed by the child-medical, psychological, educational and interpretation into the child's own language-and assist in the child's access to legal and other representation. The person would advise the child and help to promote their best interests, and make long-term plans for their future. Ideally, the person identified should have parental responsibility for the child or at least some statutory authority, so that the agencies with which that person will deal would be obliged to pay attention to his or her intervention. As the noble Lord, Lord McColl, quite rightly said, some training will be necessary. The untrained amateur is not the person for this job.

An unsatisfactory alternative is to continue to use social workers to carry out this role. It is not often that there will be one social worker with the time, or even possibly the commitment, to give this child what is needed. I know from personal experience what social workers cannot do for children living in this country, so how will they be able to do it for trafficked children coming in? Ideally, the resources should be given to free up individual social workers to look after the relatively small number of identified trafficked children, but this is pie in the sky.

The Salvation Army has a contract to provide help and accommodation for adults, but not, of course, for children. A real possibility would be for the Government to look to the voluntary sector and find a children's NGO to provide this service for these children. As an example, Barnardo's already offers legal advocates for trafficked children in certain circumstances and gives other help. I believe that CARE is about to offer something similar, and the noble Lord, Lord McColl, spoke of a number of NGOs which had been in touch with him.

I would like the Government to look to the NGOs to see what could be offered, to which I hope the Government would make a modest contribution to help the relevant NGO carry out the task. I hope that the Children's Commissioner for England will look at that, and I am delighted that the Minister has accepted this proposal from the noble Lord, Lord McColl. I very much hope, therefore-and I feel it is true-that the Government accept the underlying principle of this important amendment.

7:30 pm
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Baroness Hamwee (Liberal Democrat)

My Lords, I congratulate the noble Lord, Lord McColl, and his co-signatories, as well as the organisations which have clearly done so much of the work of which we have heard. I commend them for ensuring that so many of your Lordships have been lobbied, which has led to an increasing understanding of the complexities of trafficking and the response to it.

In view of the Minister's remarks, I shall cut down what I have to say this evening. What is needed for children in this situation is so multifaceted that the proposal for guardianship, if I can call it that, is appropriate, particularly because of the ability that such a person would have to look at the child's interests as a whole and not as a series of separate issues with too much demarcation and not enough interconnection. What is also needed is somebody able to give time to the child. Adults who are trafficked can take a lot of time to articulate their feelings, their needs and their story. If that is so for them, how much time is needed for children?

Social workers-like the noble and learned Baroness, Lady Butler-Sloss, I do not criticise individual social workers-may be seen as representatives of the state by some children. Consistency and trust have also been referred to. Speaking more from instinct than knowledge, I rather doubt that all local authority children's services can have as deep an understanding as is needed of the complexity of this problem. I would like to see more psychological services and a focus on specialised and supported foster care. Foster parents looking after trafficked children who have been rescued must have a hugely important role. If the reason for so many children missing from care is in part the bond that they have with their traffickers, who will be the people that they know best, whose language they may speak and who may well have taken steps to ensure that the child stays in contact, or if it is a matter of fear, voodoo and witchcraft, work needs to be done to counter that relationship. So we are talking about a range of actions, and this proposition addresses a lot of the issues.

In giving assurances to the House about how the Government hope to take this matter forward, the Minister referred to practical arrangements. I am sure that he did not mean to limit what would be looked at by the Children's Commissioner to practical arrangements because what is needed goes far wider than that. I appreciate that an enormous amount of negotiation must underlie the assurance today, so I do not want to push him into a place which is difficult for him, but if he can say anything about that, it would be helpful. Perhaps he could say something also about the work that might be done with the Children's Commissioner for Wales, where a lot of work in this area has been done and where different arrangements perhaps apply.

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Earl Attlee (Conservative)

My Lords, it is traditional to allow the Bishops to go first.

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The Archbishop of York (Bishop)

My Lords, I most warmly support the amendment and welcome the tripartite negotiations announced by the Minister. I hope that speed will be of the essence and that we shall be informed of the outcome before Third Reading. I hope that he will not simply say, "Further negotiations are going on. We hope to make some practical arrangements". I hope that the noble Lord, Lord McColl, will not let go of the matter and will keep an eagle eye on the negotiations.

The objective of the Bill-the protection of freedoms -is deficient unless, as the noble Baroness, Lady Royall, said, it protects the freedoms and interests of the most vulnerable members of society. It is hard to think of a more vulnerable group than children who have been trafficked. It is bad enough imagining the distress of an adult who arrives in a foreign country alone and oppressed and has to contend with traffickers, the immigration authorities and the police. How much more traumatic and inhibiting it must be for a child to face the same challenge.

In this situation, children need to be supported and represented so that their best interests are safeguarded. The issue at stake is whether we rest content with minimal provision, as required by the EU directive, or whether we seek an effective and properly resourced system of advocacy. I for one would go for the latter: a better system of advocacy for the children. I do not find the phrase "legal advocate" difficult. "Guardian" would be quite difficult to understand, but I can see what a "legal advocate" might do. However, other people may think differently.

Our recent performance in losing 32 per cent of trafficked children in local authority care between 2007 and 2010 suggests that we need to raise our game. How can so many be lost? It is too huge a loss. We should seek a better way, as outlined in the UNICEF definition of the role of a guardian and the standards set out in the various international instruments.

The amendment offers us that better way. The provisions of the Children Act 1989 are good as far as they go, but they do not meet the special requirements of children who have been trafficked. The noble Lord's amendment sets out the duties of a legal advocate with admirable clarity and provides for suitably qualified and trained people to fill that role. It has the advantage, by drawing on employees of statutory organisations or volunteers with specialist NGOs, of keeping extra costs down.

I am grateful, too, for Amendment 57A, because there was a fear, generated in the margins of your Lordships' House, that Amendment 57 would provide an incentive for opportunistic and misguided parents to traffick their own children in order to gain entry into the United Kingdom. There was that fear and the new amendment deals with that. Again, I do not know on what evidence that fear rested, but for me it would still be wrong to fail to provide support for genuine child victims simply out of fear that unscrupulous parents might take advantage of the provision.

To return to Amendment 57A, I am personally not convinced of the Government's argument that the status quo is good enough. I do not think that it is. The noble Lord, Lord McColl, and his supporters have given us an opportunity to remedy a serious gap in our provision for victims of trafficking, particularly children. I thank him for that and urge that we seize the opportunity with both hands. I am grateful for the consultation that will take place. I hope that the Minister will assure us that he will not kick it into the long grass.

Photo of Baroness Massey of Darwen

Baroness Massey of Darwen (Labour)

My Lords, I, too, support the amendment so comprehensively and competently set out by the noble Lord, Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Hamwee.

I do not want to put the Minister in an embarrassing position. I know that he supports issues on trafficking because he has responded very sympathetically to previous debates. I agree that the Children's Commissioner is a good person to handle this, but I would like to be assured that there will be specific terms of reference, with possible extra resourcing. The commissioner must be able to draw on the expertise of organisations such Barnardo's, UNICEF, and CARE that have done so much research on this issue. The most reverend Primate the Archbishop of York mentioned the long grass in his closing remarks. I always fear long grass when we have reviews and I would not want this to go into the long grass in any respect.

Your Lordships' House has debated and been concerned about the trafficking of children for many years. Indeed, there have been relevant debates quite recently, including the Private Member's Bill of the noble Lord, Lord McColl, and the debate of the noble and right reverend Lord, Lord Eames. The Minister responded sympathetically. I also recognise that much has been done by the local safeguarding boards, NGOs and the police in response to accommodation support, safety and employment needs. But I want to dwell for a moment, and I shall be brief, on the appalling state that trafficked young people find themselves in and why they need such support.

I declare an interest as a patron of the University of Bedfordshire child protection unit. In that capacity, I have met many young people who have been trafficked and who can and do set out their problems passionately. The concerns are well documented in the ECPAT booklet called Safeguarding Children: Top Ten Questions on Child Trafficking. One of the key issues that has been pointed out by other organisations such as CARE, Barnardo's and UNICEF, is that children who are trafficked are,

"already vulnerable because of poverty, lack of education, few job opportunities or the loss of family support".

I will return to that because it is a key issue. These children are likely to go missing, although I understand the figure has improved. They are certainly vulnerable to abuse and subject to abuse very regularly. Most have language and communication difficulties.

Of course they need support and advocacy as they are in a system that is too complex for them to understand. The UN Committee on the Rights of the Child recommends the prompt appointment of a guardian for unaccompanied children and says succinctly what such a person should do. Such a person should be consulted and informed about actions relevant to the child, have the authority to represent the child when plans or decisions are made, have expertise in childcare so as to protect the best interests of the child, act as a link between specialist agencies or individuals and provide continuity of care.

I want to emphasise the point that so many noble Lords have already emphasised. It is very important that such an advocate, guardian or mentor must have training and expertise in dealing with children and their vulnerabilities. This requires training not just in systems but with vulnerable young people. We all know how difficult it sometimes is to deal with children who have not been trafficked. How much more difficult is it to deal with children who are in such appalling circumstances? I emphasise the issue of training and suitability for the people who want to support these children.

UNICEF has produced a similar list of 12 expectations on the role of guardians, including keeping the child informed of rights and any proceedings undertaken. Care points out that while the Government may maintain that the role of guardian is adequately filled by existing arrangements, current social work provisions via local authority care, as the noble and learned Baroness, Lady Butler-Sloss, has said, fall short of the care that is needed. Apparently, in some cases, appointed social workers have not shown up to children's court proceedings. I have enormous respect for social workers, but they cannot do everything. The situation is far from ideal. We know that social workers and CAFCASS are overwhelmed with needy cases. Surely these trafficked children need more support and our sympathy.

I am sure that the Children's Commissioner and her office will take this on board but my key point is that child victims of trafficking have multiple needs. It is not just about preventing them from disappearing. There are immigration issues, emotional and psychological trauma, absence of parents and other support. All that points to the need for a person who can get to know the child as an individual, can cope with the trauma, is familiar with the legal and social care systems and is trusted and respected by the child. A guardian or mentor is such a person. I look forward to the Minister's response on this and to more information if possible on the role of the Children's Commissioner.

7:45 pm
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Lord Wei (Conservative)

My Lords, I very much welcome Amendment 57A and the announcement by the Minister, which is a positive step in the right direction. In light of that, I want primarily to direct my comments to the scope that the amendment provides for the use of volunteers.

The amendment of the noble Lord, Lord McColl, supported across the whole House, is important. The voluntary legal advocate whom he proposes does not complicate matters by introducing additional bureaucratic burdens on the child. They would simply provide a means of helping all the things that must already be done to be done. They would provide additional capacity to provide more support for the child and the reassurance that there is one person who will help them who will remain constant so that they do not have the emotional trauma of going back to square one to explain their painful story all over again.

The legal advocate would be able to provide general advice and support and crucially be permitted to accompany them on all their interactions with state agencies and act as advocate to all those agencies on the child's behalf. That is based on internationally accepted best practice as set out by UNICEF.

One of the most important parts of the McColl amendment is that it does not tie the Government's hands but provides scope for legal advocates to be the employees of statutory bodies, voluntary organisations or volunteers with voluntary organisations. The opportunity for using the voluntary sector and volunteers, as has been mentioned before, is hugely significant.

The number of children rescued between 2007 and 2010 is roughly 300 a year. I know from my work in the voluntary sector that it would not be difficult to find 300 volunteers a year to be voluntary legal advocates for a child. Indeed, I have been approached, as have other noble Lords, by voluntary organisations that are ready to rise to the challenge and pilot such approaches. This presents us with a win-win situation, because not only does it address a very pressing problem, but it would do so in a way that would help further build British social capital.

I am aware that there are those who may feel nervous about the role of volunteers. In response, I make two key points. First, the amendment is keenly aware that anyone serving those deeply vulnerable children must be properly trained, as has been mentioned already, and all would be subject to the same robust training framework. This is no place for some well meaning volunteer who just feels compassion but who has not been properly trained. Secondly, I would simply point those tempted to suggest that volunteers cannot do the job to our magistrates system. Magistrates are volunteers. They are properly trained and have to deal with very sensitive situations. Although there may be some who are defensive of their turf and tempted to justify their fears of volunteers by pointing to training, we must recognise that volunteers can be, and are, trained, as our magistrates system eloquently demonstrates. Another great example of the very successful use of volunteers to which I would direct noble Lords is that provided by court-appointed special advocates-CASAs-in the United States, who are trained volunteers and who have a proven track record of dealing with extremely delicate situations very effectively.

Of course the opportunity to make proper care available for victims of trafficking through volunteer legal advocates is hugely important in the current fiscal environment, where money is so tight. This is not to say that Amendment 57A would have no costs to the state if the volunteer route were used, but it would be minimal-and money well spent when one has regard for the imperative of providing better and more sensitive care for incredibly vulnerable children and for further reductions in the numbers lost.

My political hero is Anthony Ashley Cooper, the seventh Earl of Shaftesbury, who arguably did more than anyone else in this House-and in another place and beyond-to establish the tradition of compassionate conservatism in the 19th century, demonstrating concern particularly for vulnerable children in factories and mines and for those sweeping chimneys. I am sure that if he were here today, he would be fronting this amendment, which comes in the very best tradition of my party, historically and recently; and which, crucially, also resonates with the traditions of other parties, whether your vision of society is big, open, good or otherwise. I very much hope that we can continue to support the noble Lord, Lord McColl, in his efforts to secure these measures.

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Baroness Howe of Idlicote (Crossbench)

My Lords, I am one of those who want to speak in the next debate, and I can see the Minister glaring at me. However, it is particularly important, numerically, that we support what the noble Lord, Lord McColl, and indeed my noble and learned friend Lady Butler-Sloss, have said. It is crucial that we get this right. I am not going to spend hours adding my thoughts to it but do just want to make one point. Not only is the number who have slipped through the net shameful-and it is really shameful-but we are facing a rather more difficult and dangerous period. There is a lot of money to be made in this area, as noble Lords have said, and we are just about to enter the Olympic period. I want to make that one point. I hope everybody who wants to speak is going to be heard, because this is a crucially important matter that we must get right. I have great confidence that the Minister will take note of what is being said. The amendment is not perfect, as everybody has said, but what is behind is crucial.

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Lord Judd (Labour)

My Lords, I welcome this amendment and commend it most strongly to the Government. I am also glad to hear the Minister's indication that the Government are going to look sympathetically and positively at what the amendment says and what lies behind it. I will make a couple of points. First, it is particularly significant that the amendment stands in the name of the noble Lord, Lord McColl. The noble Lord is not a man who indulges just in rhetoric-his humanitarian commitment is demonstrated in his own direct work, for example in west Africa. When somebody with practical demonstration of human concern speaks out, it is always doubly important to listen. The noble Lord and the other supporters of this amendment have of course spoken up for civilised values and are trying to give some substance to what we like to say this society is about-what we believe the England, or the United Kingdom, we want to live in is about, when it comes to a pressing social issue. By putting the amendment forward so well, it seems to me that they have also endeavoured to give substance to the commitment that we gave before the world when the conventions were being drawn up. It is not just about what the conventions demand-we were speaking up positively in favour of the conventions. It is therefore particularly disgraceful when we have situations that contradict what those conventions say.

I want to say one other thing. Very recently, we were celebrating Charles Dickens's 200th anniversary. I have absolutely no doubt whatever that, had Dickens lived today, he would have been writing powerfully about this story. My noble friend Lady Massey has spelt out the realities. Of course, another reality is the damage that is done to the future lives of children in this predicament-the potential delinquency and all that follows from that; the potential recruitment to ugly causes that could easily arise from experiences of this kind.

Most important of all, we talk about the need for expertise and people with knowledge of the law who will be able to find practical solutions because they are professionally qualified to do so. That is crucial, and we do not want to go down the road of sentimentality; but at the same time, what would Dickens have brought out? Dickens would have brought out that child's loneliness and isolation when faced with all the awe of the legal system and the immigration administration, however well intentioned the people within it might be. Dickens would have brought out that that child desperately needed a friend-it is not just expertise they need, but friendship to help them build their lives and future. They need love. Why do we, in this House, always hold back from talking about the importance-the muscular importance-of love in our society? Those children need love.

However, for love to be effective, it must be backed by serious work and commitment, from people with serious and relevant qualifications bringing them to bear. We will not find a solution simply by good, decent, administrative intent; we will find it by the quality of the relationships. In speaking out as I do on this point, it should be stressed over and over again that this is not just a matter of the responsibility of the immigration or other authorities, it is our whole society's responsibility. Dickens would have wanted to wake up the nation, as a community, to the reality of the situation in its midst. There has to be an awakening of social and public responsibility across this land, if we are to find the real and lasting solutions to not just this issue but to all the issues of which this is a particularly acute symptom. I, for example, would love for this amendment to have gone a little further. I do not think it would have been practicable in this context but, perhaps at some stage the amendment could be taken forward to include all children in the immigration system who find themselves alone, not just the children who are victims of trafficking.

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Baroness Nicholson of Winterbourne (Liberal Democrat)

The Minister's reply to the amendment of the noble Lord, Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and others has been most warmly welcomed. When he examines this, will he put his mind to the further thought that trafficked children are highly likely to be retrafficked? This splendid amendment has an underlying assumption that somehow the children will be safe forever once they are here and there is a legal guardian and a framework around them. Of course, that is not the case. Trafficked children are hugely vulnerable. Naturally, there is a point in this amendment that locates their parents again and very probably, in most cases, an effort will be made to restore them to those parents. However, the volume of children who are retrafficked is dramatic and appalling. When they consider this amendment in such a positive light, I wonder whether the Minister and indeed the department will think about trying to stop the trafficking at source.

I declare an interest as president of a charity registered in Romania, which has been working against traffickers in Romania for 20 years. There is a great deal that we from this country can do for other developed nations, including Romania which is the subject of all sorts of trafficked children from Moldova, Russia and China. They pour through rather large and porous borders, and many of those children end up here. Vast numbers of them are then retrafficked.

I wonder whether the Minister could consider the next step of putting a great deal of focus on how to strengthen at source the anti-trafficking barriers. In fact, a predecessor of the Minister loaned some senior police from Scotland Yard for a short time to work in situ on providing training. That made a huge difference. We may do everything we possibly can for children who arrive here, but they will be rotated again and come back unless we take some measures to stop the trafficking at source.

8:00 pm
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Lord Elystan-Morgan (Crossbench)

My Lords, I greatly applaud and welcome this amendment in the name of the noble Lord, Lord McColl, and its other signatories. I also appreciate very much the humanity and sensitivity shown by the Minister. The noble Lord, Lord Henley, if I may say so, has added to the very great respect and admiration that the House already has for him. The problem is one which is a stain upon the honour of this community. These trafficked children are the most vulnerable imaginable, while their state is the most pitiable imaginable-and yet our system fails them. Morally, our responsibility is immense and could not be greater. Legally, the responsibility has already been spelt out. As many of us know, in Part III of the Children Act 1989 there is Section 17, which requires a local authority to be responsible for a child in need, and Section 20, which requires it to accommodate a child who needs accommodation.

If I may turn to the Welsh language for a moment, there is a saying: "Dyw mater pawb yn gyfrifoldeb neb"-the business of everybody is nobody's special responsibility-and that is the whole issue here. Somehow or other local authorities, which I know have responded well within the realities of the difficulties which they have, find it difficult to do exactly what they should in relation to these children, with the result that a very substantial proportion escape the protection which they so gravely need. In those circumstances, I believe that the amendment is excellent. It concentrates the mind, as Dr Johnson might have said. It places a focus of responsibility which is not already there in Part III of that Children Act.

It may be that the amendment is not perfect. That does not really matter, as its thrust is obvious and honourable. I had the very great privilege 43 years ago, if your Lordships can believe it, of taking the Children and Young Persons Bill through another place. I remember being thrilled then by one of the expressions in that legislation, about the responsibility of a local authority towards a child who was in its care to befriend. We have heard that expression already, but I do not think that it appears in fact in the amendment. However, I am sure that it could be incorporated in legislation in this context. I therefore feel that we are doing something which is essentially moral and good. We are supplementing a lacuna which exists not so much in the law as in the way in which local authorities have reacted to their duties in this case. It is very much to the credit of this community that it shows that sensitivity in relation to what is a very worthy cause.

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Lord Anderson of Swansea (Labour)

My Lords, I am very aware that those who push against an open door are liable to fall on their face. I suppose the trouble here is that we do not know how open the door is, given the assurance that the Minister made. However, having regard to the way he responded so humanely to the Second Reading of the Bill brought by the noble Lord, Lord McColl, on 25 November and the amendments that the Government have subsequently made, we can be confident that he will be doing his very best concerning this evil practice and to ensure that the real needs of this vulnerable section will be adequately met. We give two cheers at the moment-we hope that there will be three cheers-but I suppose that there is a problem in how the report of the Children's Commissioner will be put into legislation, given that it will presumably be received well after this Parliament has ended. Perhaps the Minister could comment on that point.

I also congratulate the noble Lord, Lord McColl, who, as has already been said by my noble friend Lord Judd, has shown his own compassion in West Africa by his presidency of Mercy Ships. He has indeed shown himself to be committed and flexible; for example, he has listened to concerns about the former subsection (1)(c), which in my judgment could certainly have been misused for illegal immigration. The key point in subsection (1) is that the main consideration is the welfare of the child. There is no doubt about the nature of the problem. They are bewildered, vulnerable children. The Children's Commissioner's report of last month, Landing in Dover, shows some of the failings of the current system. I am sure the Minister concedes that that system is far from adequate. We need to confront it. The noble Lord, Lord McColl, has put forward a proposal that might help the Minister in terms of public funds. It may be that local social services departments can provide adequate help but, if not, the voluntary spirit will be available, as the noble Lord, Lord Wei, said.

Clearly, there are concerns about the potential volunteers. Is the problem manageable? I submit that it is, given the relatively small number of children who are trafficked. Equally, there must be some concerns about the adequacy of the training. I do not wholly accept the precedent of magistrates. Yes, magistrates are amateur, but they have training and the legal clerk is always there to advise them on the law. The volunteers, it is said, are available and there is a great spirit on the part of non-governmental organisations to be ready to help. I hope that the training will indeed be adequate. Of course many social workers do not in any event have specialist training in this field.

That said, we travel in hope. I believe that the Government and indeed the noble Lord, Lord McColl, whom I congratulate again, have set out proper criteria based on the UNICEF guidance. I believe also that Greco -the Council of Europe organisation which is going to mark the Government in terms of their adherence to the obligations under the Council of Europe convention-is more likely to give a very positive report when it comes to comment on the Government's conduct in May or June of this year.

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Lord Puttnam (Labour)

My Lords, I will not delay the House for more than a moment. This is the first opportunity that I have had to speak during the passage of the Bill, and I want to add a factual point that may be of use in supporting the amendment of the noble Lord, Lord McColl.

I had the honour of succeeding the noble Baroness, Lady Howe, as president of UNICEF. In that capacity I spent seven years travelling to all parts of the world, looking at the issue of child trafficking, and was forced to witness things that would have beggared the imagination of Charles Dickens. One important point kept coming back: when I was moved at times to begin to lecture areas of the world where the situation was particularly bad, they always responded, quite correctly, by saying, "Look at your own situation". The situation in the UK is actually very poor, and it ill behoves us to tell the rest of the world what it should be doing about child trafficking until we can be sure that our own record is as close to immaculate as legislation can make it. I was frequently extremely embarrassed by being lectured back about the UK's record on child trafficking in places where I had thought that we had the moral high ground. We lost the moral high ground a number of years ago.

I harangued my own Government any number of times on this issue and eventually we got a signature to the UN Convention, but the situation needs improvement, and quickly. We have very little to be proud of, and I was hoping that the amendment of the noble Lord, Lord McColl, would go a long way towards allowing us to begin to tell the rest of the world how to put their house in order.

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Lord Henley (Conservative)

My Lords, I hope that the House will now allow me to respond to the long debate that we have had on this subject. There are a few points that I want to make.

The noble Baroness, Lady Massey, was rather suspicious that I might be trying to kick this into the long grass-she put that suggestion forward. I assure her that I have some experience of kicking things into the long grass, but that works only when all parties agree that something should go into the long grass and stay there. If I may continue with the analogy, it was her noble friend Lady Royall who asked that I keep her informed of progress while giving me the assurance that my noble friend Lord McColl would be dogged in his pursuit of me to ensure that things progressed. When someone like my noble friend is dogged in his pursuit, there is no grass long enough for these matters. This issue will not go into the long grass, as I said; I want this to go to the Children's Commissioner for her to give her views and come forward with practical ideas.

On that point, I would like to come back to my noble friend Lady Hamwee, who herself was rather suspicious when I used the expression "practical arrangements". I have no shame whatever in using those words because they are exactly what we want. We want to ensure that we are making progress in this area, rather than merely passing amendments so that we feel good about passing amendments.

I do not want to go into the amendment of my noble friend Lord McColl at this stage because I do not think it quite achieves what it sets out to do and there might be better ways of doing it. I repeat what I said to him earlier today in a private conversation: we have made some progress in this area. Noble Lords have been quoting the figure of some 32 per cent of children still being lost, but we have had considerable progress over the past few years. The 32 per cent figure was an average over the past four or five years, but actually it has dropped from a quite horrifying 55 per cent to 18 per cent, which is an equally horrifying figure but that at least is progress in the right direction. I pay tribute to some local authorities, and there are not many good ones, that have been performing their duties very well. I also pay tribute, as did my noble friend Lord Attlee in the recent debate moved by the noble and right reverend Lord, Lord Eames, to the work of the Child Exploitation and Online Protection Centre, which I visited recently. Progress is being made in this area and we should not think that primary legislation or whatever-there will be opportunities for both primary and secondary legislation-is necessarily the only solution.

At this stage I would like to say that we have made progress, I have listened to everything that has been said and the Children's Commissioner will take note of all that has been said in this debate. I look forward to progress and to keeping the noble Baroness, Lady Royall, informed about it. I will also look over my shoulder for the dogged pursuit of my noble friend Lord McColl, who will see to it that I do my utmost to ensure that progress is made in this respect. I hope that with those assurances my noble friend will feel able to withdraw his amendment.

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Lord McColl of Dulwich (Conservative)

My Lords, I thank all noble Lords who have taken part in this debate. I am particularly grateful to my co-signatories, the noble Baroness, Lady Royall, the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Carlile. I am also grateful to the Minister for the assurances and the concession that he has given, and I beg leave to withdraw the amendment.

Amendment 57A withdrawn.

Schedule 9 : Consequential amendments

Amendments 58 to 67

Moved by Lord Henley

58: Schedule 9, page 179, line 37, at end insert-

"In section 113A (criminal record certificates) omit subsection (10).

In section 113B (enhanced criminal record certificates) omit subsection (13)."

59: Schedule 9, page 182, line 25, leave out "7(1)(i) or (j)" and insert "7(1)(f) or (g)"

60: Schedule 9, page 182, line 38, leave out "for "will" substitute "may"" and insert "after "will" insert "or (as the case may be) may"."

61: Schedule 9, page 185, line 17, leave out "for "will" substitute "may"" and insert "after "will" insert "or (as the case may be) may"."

62: Schedule 9, page 185, line 36, leave out "and 120AC" and insert ", 120AC and 120AD"

63: Schedule 9, page 186, line 3, leave out "and 120AC" and insert ", 120AC and 120AD"

64: Schedule 9, page 187, line 7, at end insert-

"( ) After subsection (2) insert-

"(2A) Where, in connection with the provision of up-date information under section 116A, the chief officer of a police force receives a request for information of the kind mentioned in section 113B(4), the chief officer of police must comply with it as soon as practicable.""

65: Schedule 9, page 188, line 14, at end insert ", 120AC(1) or 120AD(2)"

66: Schedule 9, page 188, line 17, leave out "or 120AC(1)" and insert ", 120AC(1) or 120AD(2)"

67: Schedule 9, page 188, line 23, at end insert "or 120AD"

Amendments 58 to 67 agreed.

Schedule 10 : Repeals and revocations

Amendments 68 and 69

Moved by Lord Henley

68: Schedule 10, page 196, line 36, column 2, at beginning insert-

"Section 113A(10).
Section 113B(13)."

69: Schedule 10, page 203, line 5, at end insert-

"Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010 (S.I. 2010/1146). Regulation 4(2).
Regulation 8."

Amendments 68 and 69 agreed.

Clause 114 : Commencement

Amendment 70

Moved by Baroness Stowell of Beeston

70: Clause 114, page 100, line 42, after "Part 1" insert "and any Welsh provision"

8:15 pm
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Baroness Stowell of Beeston (Conservative)

My Lords, this amendment and those grouped with it are all minor technical amendments. I beg to move.

Amendment 70 agreed.

Amendments 71 to 74

Moved by Baroness Stowell of Beeston:

71: Clause 114, page 100, line 42, at end insert-

"(2) The Welsh Ministers may by order made by statutory instrument make such transitional, transitory or saving provision as the Welsh Ministers consider appropriate in connection with the coming into force of any Welsh provision.

(3) In this section "Welsh provision" means any provision of this Act so far as it falls within section 118(3)."

72: Clause 117, page 102, line 2, after "1997" insert "(excluding sections 113A(10) and 113B(13) of that Act)"

73: Clause 117, page 102, line 41, leave out "116" and insert "115"

74: Clause 117, page 103, line 3, leave out subsection (9)

Amendments 71 to 74 agreed.