Children and Families Bill — Third Reading

– in the House of Lords at 3:37 pm on 5th February 2014.

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Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Captain of the Honourable Corps of Gentlemen-at-Arms (HM Household) (Chief Whip, House of Lords), Deputy Chairman of Committees, Deputy Speaker (Lords) 3:37 pm, 5th February 2014

My Lords, there are occasions when it is my duty as government Chief Whip to signify the Queen’s consent. This is just such an occasion. I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Children and Families Bill, has consented to place her interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Clause 11: Welfare of the child: parental involvement

Amendment 1

Moved by Lord Faulks

1: Clause 11, page 11, line 8, leave out from beginning to “any” in line 9 and insert—

“In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not”

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, I am delighted to be opening the Third Reading of the Children and Families Bill. As the House will appreciate, I have joined the Bill at a late stage but I recognise how much detailed debate and scrutiny there has been in this House over many months. I hope noble Lords will agree that, working together, we have been able to make improvements to a Bill that will have a positive impact for children and young people and their families. There are some further issues where we have been persuaded that legislative changes are appropriate, and others where consequential amendments are required, so the Government tabled amendments on these areas last week. I hope that all of the amendments will be welcome, and that we will make good progress today.

Returning to the amendment, I begin by thanking my noble friend, the noble and learned Baroness, Lady Butler-Sloss, for her contributions and for bringing her experience to the debate on the amendments to Clause 11 and the issue of parental involvement. The clause has been the subject of much debate throughout the passage of the Bill and I am pleased that there has been widespread approval of the intentions behind it. Noble Lords agree that, in most cases, it is best for children to have both parents involved in their lives, but I also understand the concerns of those who have highlighted the need for a clearer understanding of the policy.

We have listened to the concerns raised by noble Lords and I repeat my thanks to the noble and learned Baroness, Lady Butler-Sloss, for her important contributions throughout the consideration of Clause 11. Our aim in tabling this amendment is to retain the principle behind her amendment agreed on Report while ensuring that it will work in practice as noble Lords intend. We have removed the phrase,

“promotes the welfare of the child”,

as it is clear that any involvement that promotes a child’s welfare will serve to further the child’s welfare, which is already captured in the main body of the clause. Retention of this phrase in the amendment would result in repetition of the wording of new subsection (2A) and might, we feel, lead to confusion. The remaining changes to the wording seek to tidy up the drafting while retaining the principle of the original amendment.

Noble Lords have highlighted a need for the clause to be clearly communicated to separating parents. We agree. I want to reassure noble Lords that we are taking steps to address any potential misunderstanding of the clause by parents, in particular through content that is being developed for the Sorting out Separation web app. When Clause 11 becomes law, we will make clear in the information on this web app—and in information about the changes that we disseminate to partner organisations—that the clause does not give parents a right to a particular amount of the child’s time. We will also ensure that the organisations with the HSSF—the Help and Support for Separated Families—kitemark have clear and accurate information about the changes. We recognise the huge expertise and experience of organisations whose work is focused on supporting vulnerable parents. Their input will help to ensure that the messaging and tone of the information that we develop is right, and that the information is properly targeted.

I hope that noble Lords will agree that this amendment meets the concerns that have been raised previously by the House. I again thank the noble and learned Baroness for bringing this important matter to the House’s attention. I beg to move.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I am delighted to put my name to this amendment and I thank the Minister for what he has said, particularly his extremely helpful explanation. I should like, through him, to thank those behind him from the Bill team and the civil servants who were extremely helpful in our discussions. They were very helpful to me and, through me, to this amendment.

I was concerned to have an amendment in these words and I am happy to accept the revision that the Government have made. I am well aware that any amendment that is not a government amendment has to be rewritten; that seems to be a given part of parliamentary life. I am totally happy with that. One of my reasons was that in the absence of legal aid in private family cases, there was a very real danger that the dominant parent would overpersuade the less dominant parent that there was a right to equal sharing of the child’s time after separation. Unfortunately, the Government began by calling this particular clause “Shared parenting”. I am grateful to them for having realised their mistake so quickly and taking it away, but the press picked it up. Consequently, people out there believe that this clause means shared parenting.

I had very useful discussions with an organisation, Families Need Fathers, and I ask the Minister to see that any information that is sent out to various organisations also goes to that one because it has an utterly sensible approach. It is very keen that the non-resident parent should have a proper connection with the child to further the child’s welfare, but recognises that it is not shared parenting. It is an extremely useful organisation and I commend it.

I want to be sure that when the information, assessment and mediation meetings take place, that is also when an explanation of what is meant by the relationship between the child and the non-resident parent is made extremely clear. Having said that, I am happy to support this amendment.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench 3:45 pm, 5th February 2014

My Lords, my name was also on the original amendment tabled by the noble and learned Baroness, Lady Butler-Sloss. I regret that the phrase,

“the welfare of the child”,

has not been retained. I am pleased that the Government have taken this as far as they have. Emotions run very high during divorce and separation proceedings and where children are used as chattels in the battle. For all the reasons that the noble and learned Baroness has already outlined, there is still a perception that it means shared parenting. I encourage Ministers to continue the battle—with the media, if you like—to ensure that that message does not go forward.

As a previous chair of the Children and Family Court Advisory and Support Service, I know how strongly some fathers will battle on, even if they really do not want care of the child. I say that as someone who has a strong belief in having two parents and had a wonderful father of my own. I always think it is important to say that because, if you are talking about difficult fathers, you need to make it clear that you are pro-fathers. I hope that the Government will do all they can to ensure that it is the welfare of the child that will count when this amendment moves forward.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Education)

My Lords, first and rather belatedly, I welcome the Minister. I can tell him that he missed a lot of very interesting discussions in his absence, but I am sure that he is well acquainted with where we have reached with the Bill. We look forward to working with him on these issues in the future.

Our names were also added to the amendment in Committee and on Report, so we feel we have a little ownership of it. The noble and learned Baroness, Lady Butler-Sloss, put it very well: there seems to be an established procedure that our wording can never be quite good enough and that it has to be corrected. We accept that the current wording is marginally better in terms of tidying up, so we are grateful for that. As the noble Baroness, Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss, have said, the important thing now is how this is communicated because there was some miscommunication before. We are grateful to hear the plans that the Minister has for publicity because we would stress how important it is to get the message out there by whatever means necessary. Having said that, we are pleased to support the amendment.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, I am grateful to the noble Baronesses, Lady Jones and Lady Howarth, and to the noble and learned Baroness, Lady Butler-Sloss, for their contributions. Nobody claims exclusive possession of this amendment. It has been very much a joint effort and I include the Opposition in that. We take on board what has been observed about the importance of the message getting through. We will undertake to share the information with Families Need Fathers, both for accuracy and tone so that there can be no misunderstandings. The information will also be made clear to parents at the mediation stage in identical terms. I accept that the dissemination of this information is crucially important so that nobody can be under any misapprehensions, as were discussed in earlier debates on the Bill.

Amendment 1 agreed.

Clause 37: Education, health and care plans

Amendment 2

Moved by Baroness Northover

2: Clause 37, page 32, line 13, leave out “and social care”

Photo of Baroness Northover Baroness Northover Lords Spokesperson (Women & Equalities), Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development)

My Lords, Amendments 2 and 3 will amend Clause 37. In previous debates we have spoken in some detail about the position of social care within the new education, health and care plans. I thank noble Lords who have raised this important issue and in particular the noble Lords, Lord Rix and Lord Low, and the noble Baroness, Lady Hughes, for taking the time to discuss this with us outside the Chamber.

We welcomed the high-quality debate in Grand Committee and on Report on social care and recognise the important issues that were raised. On Report, we committed to bringing back an amendment to include the Chronically Sick and Disabled Persons Act 1970 in the Bill as a means of, first, providing assurance that assessed social care needs for disabled children will be met under the existing duty in Section 2 of the CSDPA; and, secondly, ensuring that the EHC plan includes all the relevant social care services needed by disabled children.

Following Report, there have been further productive discussions between my noble friend Lord Nash, officials, Peers and representatives of the Special Educational Consortium, to ensure the legislation is amended to meet these important aims.

We are pleased to bring forward amendments to Clause 37 to require that the EHC plan includes all services assessed as being needed for a disabled child or young person under 18, under Section 2 of the CSDPA, regardless of whether it relates to the learning difficulty or disability which gives rise to the SEN. The duty for local authorities to provide services to disabled children where it is decided that they are necessary under the CSDPA will apply. We will ensure that the SEN code of practice provides an explanation of the services under Section 2 of the CSDPA that must be included in the EHC plan, and explains the existing duties to provide those services, to give clarity and reassurance to both parents and practitioners.

Specifically, where the local authority decides that it is necessary to make provision for a disabled child under Section 2 of the 1970 Act following an EHC assessment, this amendment will mean that the local authority must, first, identify which provision is made under Section 2 of the 1970 Act; secondly, specify clearly that provision in the EHC plan; and, thirdly, deliver that provision.

In addition, the Bill continues to require that any other social care provision which is reasonably required by the learning difficulty or disability that gives rise to the SEN must be included in the EHC plan. This covers provision made under Section 17 of the Children Act which is not covered by the CSDPA—for example, residential short breaks.

It will also cover adult social care provision for young people aged 18 to 25, where a care plan is drawn up under provisions in the Care Bill. The adult care plan should form the social care part of the EHC plan for young people over 18, and the Care Bill includes a duty to meet assessed needs in the adult care plan. Again, we will set out clearly in the code of practice the social care services that must be included in the EHC plan.

I urge your Lordships to support these amendments at the conclusion of the debate. I beg to move.

Photo of Lord Rix Lord Rix Crossbench

My Lords, I warmly welcome the government amendments to Clauses 37 and 51 on social care and redress. I thank the Minister and officials most warmly for listening to the arguments from across the House and the sector and for improving the Bill accordingly. The government amendments move us closer to the holy grail of integrated education, health and social care.

Making it clear that the provision of social care is on a statutory footing in their plans will undoubtedly aid children and young people with a learning disability and their families. The change, I hope, will mean that social care is not at risk of being an afterthought or an appendix as is currently the case in many statements.

I further thank the Minister and his officials for listening to us on the issue of a single point of appeal and for the commitment to conduct a review and pilots. As is always the case with these things, clarity is needed in a number of areas on the detail and I understand that the Special Education Consortium and Every Disabled Child Matters will write to the department on this matter. I confirm with the Minister that the pilots will look at the possibility of hearing both appeals and complaints on education, health and care, not only complaints.

With that said, I thank the Minister again for making important and positive changes to the Bill.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

The Minister was kind enough to mention me as having taken part in the discussions on the subject to which the amendments relate, and I follow my noble friend Lord Rix in warmly welcoming the amendments to Clause 37 that the Minister has tabled. They go a long way towards dealing with the point that we raised about the language used to describe the social care required. By referring to the Chronically Sick and Disabled Persons Act, they also go a long way towards addressing the question about enforceability.

To my regret, I have to be somewhere else shortly and will not be able to take part in the debate on the other amendments, so I shall take this opportunity of expressing my appreciation not only to Ministers but to their officials for the extensive way in which they have taken part in discussions throughout the lengthy passage of the Bill, and responded fully to many of the points raised. Obviously it is not appropriate at this point to refer too far forward to other subjects of discussion but, as my noble friend Lord Rix mentioned this, I may perhaps be permitted to say that I too very much welcome the package of government amendments on the review of the appeal process. There were obviously considerable difficulties in implementing the single point of appeal, which we were arguing for, right here and now, so the Government have taken the right course in agreeing to set up a review. I look forward to welcoming the outcome of that review in due course—but that is for another day. Today, I simply warmly welcome both the government amendments and—if I may be permitted to do so—the considerable number of additional amendments that the Government have tabled, and express my warm-hearted appreciation both to Ministers and to the officials who have backed them up in the production of the amendments. I also thank them for their flexible response to the debates on the Bill in general.

Photo of Baroness Hughes of Stretford Baroness Hughes of Stretford Shadow Spokesperson (Education)

My Lords, I understand what the Minister has done with these amendments, and I welcome the fact that we finally have recognition that, as the noble Lord, Lord Nash, admits in his letter of 31 January, there is an individually owned duty to provide services to disabled children where they are assessed under Section 2 of the Chronically Sick and Disabled Persons Act. I also recognise that through this amendment—theoretically, anyway—the assessed social care needs for disabled children will be met under the existing duty. The amendments will mean that any social care provision which a child or young person is entitled to receive under that social care legislation must be included in the plan.

I had intended to ask the Minister some questions, and it is good that in her opening remarks she put on record what I wanted her to clarify: that local authorities must—she emphasised the word “must”—decide whether a child is eligible for services under the 1970 Act, and must also decide what services the child needs. If they decide that a child needs those services they must put them in the plan—and, crucially, they must deliver those services. The Minister has already put that on the record.

I would like to make two more points. First, the letter from the noble Lord, Lord Nash, also says that he will set out clearly in the code of practice the social care duties that must be included in the EHC plan, and explain the duties to provide those services where they are applicable. Could the Minister say in her summing up whether there are particular social care services that must be provided—and whether there are some, therefore, that may not be provided? Is there a distinction there?

The second point is that in relation to the code of practice the explanation to the local authorities is crucial. As it stands, the Bill, even after this amendment, is a very complex way of framing the respective duties of health, education and social care to provide the services. I certainly would have preferred, for the sake of clarity for those implementing the Act, as it will then be, for social care to be included in Clause 42 rather than Clause 37; Clause 37 deals with EHC plans whereas Clause 42 deals with the duty to deliver the services. I think it would be helpful to local authorities to see very clearly in one place in the Act that all three elements of this new planning process—health, social care and education—have to deliver. Unless the duty on social care achieved by this rather tortuous mechanism is clearly spelt out to local authorities it may not be fully recognised by social workers. Will the noble Baroness comment on that? I welcome the changes.

Photo of Baroness Northover Baroness Northover Lords Spokesperson (Women & Equalities), Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development) 4:00 pm, 5th February 2014

My Lords, I thank the noble Lords, Lord Rix and Lord Low, and the noble Baroness, Lady Hughes. When the noble Lords, Lord Rix and Lord Low, who have enormous expertise, became involved in this area, it was immediately apparent to me and to others that we needed to listen very carefully. I appreciate very much their gratitude that there has been this movement. Moving close to a holy grail is quite something. I thank them on behalf of the officials.

It is right that the officials’ contribution should be recognised, so I am very happy that the officials are hearing that. I thank the noble Lords on their behalf.

As the noble Lords will have noticed, when my noble friend Lord Nash is persuaded he acts, which is I think reflected in the number of changes that we are seeing in today’s business. He will be dealing with the issue of appeals and redress in the next group.

I am glad the noble Baroness, Lady Hughes, picked up the very clear “musts” in the way that I laid out the responsibilities and the need to deliver the provision that has been agreed. The social care legislation to be explained in the code includes CSDPA 1970, the Care Bill and Section 17 of the Children Act. These pieces of legislation have differing duties, which will be explained clearly. If I need to write further to clarify, I will do so.

I note the number of organisations that are following our debates with enormous care. Whenever they feel we have not done enough, they make sure that we know. I hope that they will help to ensure that they, too, speak to those with whom they are in touch to make sure that the changes are fed through. We will be working very hard to make sure that that code of practice is extremely clear and helpful, both to individuals who might benefit from it, and to practitioners. We are very grateful to the organisations to which the noble Lord, Lord Rix, has referred for their work, and look forward to continuing to work with them. We very much appreciate the consensual way in which we have been able to address this.

Amendment 2 agreed.

Amendment 3

Moved by Lord Nash

3: Clause 37, page 32, line 15, at end insert—

“(e) in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (as it applies by virtue of section 28A of that Act);

(f) any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e).”

Amendment 3 agreed.

Clause 51: Appeals

Amendment 4

Moved by Lord Nash

4: Clause 51, page 40, line 14, after “of” insert “EHC needs assessments and”

Photo of Lord Nash Lord Nash The Parliamentary Under-Secretary of State for Education

My Lords, I want to speak to the group of amendments beginning with Amendment 4, which are tabled in my name. The amendments follow previous, very constructive discussions in Committee and on Report about the SEND tribunal and redress, with contributions from a number of noble Lords. I thank in particular the noble Lords,

Lord Rix and Lord Low, my noble friend Lord Storey and the noble Baronesses, Lady Hollins, Lady Hughes and Lady Howarth, for their contributions in those debates and subsequent discussions with me and my noble friend Lord Howe.

As noble Lords will have heard me say previously, one of our main aims in introducing the special educational needs clauses in the Bill has been to reduce the adversarial nature of the SEN system. We want children, young people and parents to have a better experience when engaging with the SEN system, particularly when children and young people are being assessed and, if people have complaints, when they are seeking redress.

We have taken action to ensure that people have a better experience of the system. Just recently, the Minister for Children and Families announced a £30 million programme to provide parents and young people with independent supporters to help them through the process of assessment and drawing up EHC plans. The new assessment process which will be brought in by the Bill will be more joined up and participative, with the education, health and social care services being more directly involved and with a more active role for parents, children and young people. Education and health will work together jointly to commission the services that children and young people with SEN will need.

With reference to complaints, we have maintained in the Bill the duty on local authorities to arrange disagreement resolution services so that parents and young people can resolve disagreement with local authorities about authorities’ duties under this part of the Bill, and with schools and further education colleges about their provision for individual children and young people with SEN.

We have introduced consideration of mediation and the opportunity to go to mediation before parents and young people can register appeals with the tribunal. We know that many parents currently find appealing to the tribunal stressful and off-putting, despite the tribunal’s efforts to hold the appeal hearing in an informal venue where the lay person feels comfortable presenting their own case.

Mediation offers parents and young people an excellent opportunity to discuss their concerns about assessments and education, health and care plans in a non-adversarial setting, assisted by a trained mediator. If they are able to reach agreement with the local authority, it means that they or their children will be provided with the support that they want more quickly than if they waited for a tribunal hearing to be arranged. There is no compulsion on the parties to agree, so if parents and young people are still concerned about what special educational provision is being offered, they can appeal to the tribunal.

However, the Bill as currently drafted means that health and care provision is excluded from the disagreement resolution, mediation and appeal processes. Noble Lords have rightly raised their concerns about this. Following the commitment that I gave on Report, we have worked with colleagues at the Department of Health and the Ministry of Justice to develop a package of proposals to address this issue. These amendments provide that package.

The amendments will widen the disagreement resolution and mediation arrangements to cover health and social care and will require the holding of a review of the complaints and redress arrangements for those with education, health and care needs, with the review including pilots to test the tribunal making recommendations about health and social care.

On disagreement resolution and mediation, all local authorities currently have to make disagreement resolution services available. We will widen these so that when an assessment or reassessment is being carried out, or an EHC plan being drawn up or reviewed, parents and young people will be able to ask for disagreement resolution on health and social care complaints as well as on education complaints. As with the current arrangements, engaging disagreement resolution services will be voluntary on both sides—the parent or young person and the local authority or CCG. Similarly we are proposing to widen mediation to cover health and social care. This will mean that after an EHC plan has been drawn up, parents and young people will be able to go to mediation about the health and social care elements even if they did not have a concern about the education element. If they wanted mediation on health or social care, the CCG and local authority, respectively, would have to take part.

On Report we had an extensive discussion about the merits of a review of redress in the system. I am pleased to have tabled Amendment 33 today, which will establish such a review. The Secretary of State and the Lord Chancellor will hold the review to look at how well the redress arrangements under the Bill are working; and more widely at other complaint arrangements relevant to children and young people with education, health and social care difficulties. The review will take account of the Francis and Clwyd reviews of complaints in the health service. We will involve other organisations which have an interest, such as the tribunal, Healthwatch, the Local Government Ombudsman, the Health Service Ombudsman and Parent Carer Forums.

The Secretary of State and the Lord Chancellor will report back to Parliament within three years of the implementation of the SEN provisions making recommendations as to the future of redress and complaint arrangements, including recommendations on the role of the tribunal. We believe that we would have to give sufficient time to build up the evidence on which to make recommendations. However, three years is a maximum and if the review felt it had the evidence in less than that time it could report to Parliament earlier. I estimate that we might have sufficient evidence by the summer of 2016, so I can say that the review would report no less than two years from the implementation of the Bill and no more than three years.

Part of the review will involve pilots testing the tribunal making recommendations on the health and social care aspects of plans where parents and young people have complaints about them and they are already appealing to the tribunal about the special educational element of the plan. This would mean that they could have their complaints about the plan considered as a whole rather than in isolation. The recommendations would not be binding on CCGs and local authorities as social care providers but we would expect them to consider seriously any recommendations the tribunal made. The pilots would begin in the spring of 2015 as the first appeals about EHC plans begin to be heard, be carried out in at least four local authority areas and would last for two years while it builds up evidence on which to base any recommendations about the future role of the tribunal.

I believe that, taken together, this is a strong package which addresses the need to provide parents and young people with a more joined-up way of dealing with complaints which go across education, health and social care. I beg to move.

Photo of Lord Storey Lord Storey Liberal Democrat

My Lords, my noble friend Lady Northover used the term “consensual”. That is a very appropriate word to use—it is almost the hallmark of the Bill. On every issue we have tried to come to a consensual agreement, understanding the needs of children and families. These amendments are very helpful. I said on Report that if we could not agree a single point of appeal as part of this Bill that would happen in the future without a shadow of doubt.

It seems to me that people who look at this objectively would think, “Wow—amazing. We have a plan for each child that’s joined up for education, health and social care. That’s very progressive legislation”. And then they would scratch their head and say “But if something goes wrong, or you want to make an appeal about something, why are there three separate appeals mechanisms and three different routes?” That is very confusing and intimidating to parents—there should be one point of appeal. That has been the line that many of us have taken all the way through the passage of this Bill.

I am absolutely sure that the Minister and his team have tried to accommodate that view. I have met with various Ministers and civil servants from other departments. I actually think the amendments probably make sense, because the culture of those departments is very different. There would be a danger that if we did not tread carefully, we would make a mess of the appeals process. So yes, we want a single point of appeal in the future. Yes, it makes sense to deal with disagreement in mediation. Yes, it makes sense to have pilot schemes that we can look at. That will be a really important step forward.

I do not intend to speak again today so I will end my comments by thanking the Minister and my noble friend Lady Northover for the incredible commitment and amount of time they have given during the passage of the Bill. They have been prepared to meet at any time, almost at the drop of a hat, any group on any subject. That has been amazing. I also thank the members of the Bill team, who have been absolutely stunning. I do not think I have come across a group of people who have been so prepared to help in a neutral, fair and supportive way—if you can have those three words linked together. I thank all concerned.

Photo of Lord Touhig Lord Touhig Labour 4:15 pm, 5th February 2014

My Lords, in speaking to Amendments 4, 5 and 33, I commend the Minister and his officials for engaging with noble Lords on all sides on the issue of a single point of appeal.

Amendments 4 and 5 move some way towards putting in place the missing piece of the jigsaw: a unified system of redress. Noble Lords, and indeed the Minister, have spoken of the exasperation that many families feel when they are up against a system that too many feel is adversarial. A petition organised by the National Autistic Society secured 15,000 signatures in support of a single point of appeal. I declare an interest as a vice-president of the National Autistic Society. Many families have battled the bureaucratic quagmire to gain access to support that they desperately need.

To date, we have not had a cogent explanation as to why the First-tier Tribunal, which sits in the Health, Education and Social Care Chamber, cannot hear appeals on all three elements of the education, health and care plan. Joining up redress across the three services is undoubtedly a complicated business, and the review of complaints and appeals promised by the Government, together with the pilots testing an expanded role for the tribunal, will provide us with an opportunity to work out how best to achieve our common objective. The consequences of not doing this have been spelt out and the Minister has certainly listened.

Turning to Amendment 33, the review of resolution of disagreements, together with the pilots testing an expanded role for the tribunal, will provide a pivotal opportunity to fully overcome the barriers to creating a unified appeals process. The Government’s policy statement about the review uses different terminology to describe the scope of the review and pilots. The review and pilots must consider the full range of options, including both appeals and complaints. This is vital for ensuring that parents trust the new system and that in the long run it will be truly responsive to the needs of children, young people and their families. The review and the pilots must include the possibility of the tribunal hearing both complaints and appeals, which should be fully explored.

It is welcome that the amendment places a duty on the Secretary of State and Lord Chancellor to lay the resulting report before Parliament. This is an important way of ensuring scrutiny and further informed discussion around these key areas. However, the amendment to Clause 74 does not outline any duty to consider the findings or to reflect the findings in regulations. This leaves the outstanding question as to what duty there will be on the Secretary of State and Lord Chancellor to respond to any recommendation to undertake definitive action as a consequence. In his opening remarks, the Minister went some way to try to explain how that will happen. I will read Hansard carefully and I hope that we will all end up in the same place at the end of the day.

I commend the Government on the substantial progress that has been made in the Bill. However, there is an outstanding concern about the transition from education to adulthood, particularly for young people and young adults with autism. Transition is a key focus of the Bill. At present the draft code of practice makes no reference to the Autism Act 2009. The draft code should signpost professionals towards this Act and the statutory guidance so that they can understand the needs of and their duties towards children and young people with autism. Will the

Government consider signposting that within the code of practice and ensure that these reforms are adequately reflected in the transition section of the renewed autism strategy, which the Government are now about to undertake?

On Second Reading, I said that the House had the potential to turn the Bill into a landmark piece of legislation. Noble Lords on all sides have worked hard to ensure that the Bill achieves its stated intention: the improvement of the system of special educational needs for children, young people and their parents. To be fair, the Government have listened and worked constructively with those who sought to make changes. The Bill is intended to create a person-centred system which deploys a joined-up approach to delivering education, health and care needs for children with special educational needs. For that, we are all most grateful.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I am not very good at accolades, but I just add to what has been said about the Minister’s capacity to listen and respond. It has indeed been remarkable and extremely helpful, so I hope that he will forgive me for asking a few more questions—it is in my nature.

I turn to the question of mediation. I had a number of exchanges with the noble Lord, Lord McNally, about the definition of mediation. I hope that the Minister can say for the record that mediation here has the widest definition. We know that some mediators operate a particular structure of mediation which can be very narrow and unhelpful to some of the programmes that are being developed. There are some innovative programmes of intervention on the mediation spectrum, and I hope that those are what we will have under the helpful government amendments.

On a rather unhappy note, all those provisions will be costly at a time when local government is facing further cuts. I know that the Local Government Association—I declare an interest as vice-president—is concerned about the implications. With the best will in the world, those who wish to provide services are sometimes inhibited from doing what they would like by the sheer cost. I noticed that the Minister mentioned a sum in his introduction. Perhaps he could clarify that—it went rather quickly across my thinking. We need to know whether some of the money will be clearly ring-fenced for local authorities to use for those very specific pieces of work.

On the review of tribunals—again, I think this is utterly remarkable—if the Government are able to achieve that joined-up piece of work, then we are well on the way. I am not sure that I would call it the holy grail of joined-up services, but it is what we have all been working towards for a very long time, and we are much further along the track than we have ever been.

I hear what the Minister said about the end date, but can he say when the start date is likely to be? The start date is really important in relation to the amount of time that will be available before the end of the two or three years, whichever is to be proposed.

Again, I add my gratitude to that of others for what we have achieved in the Bill. I hope that the Minister will take as much interest in its implementation as in its legislation.

Photo of Baroness Hughes of Stretford Baroness Hughes of Stretford Shadow Spokesperson (Education)

My Lords, it is always understandable, in our relief at seeing positive improvements to the Bill, of which this is one of the most important—we talked about social care before—that noble Lords welcome them, and so do I. However, I am mindful of the persistence and doggedness that it took to get to this point not only here but in the other place. I do not want to take anything away from the change, which is very positive, but rewriting the history of the Bill as being one of consensus is probably a step too far.

I welcome the amendments that the Government have brought forward today and I understand the Minister’s desire to see whether mediation can be an effective alternative to a formal appeals process. I make no criticism of that, as it is entirely understandable, and the amendments that apply to mediation will make it available across the spectrum of health, education and social care.

I have three questions for the Minister: one on mediation and a couple on the review and pilots. I read carefully the amendments on mediation and particularly noted the requirement that the mediator must be independent of the agency providing the services with which the parent or young person disagrees. That point of independence is absolutely right and understandable, but can the Minister say how this will work in practice? One of the things that concerns me is that, if a parent or young person wants to contest, say, both health and social care elements of the plan, it is very important that they should have one mediator who is independent of both the NHS and the local authority. As the noble Lord, Lord Storey, has just said, our debates around this issue have laboured the need for a single avenue of redress for families. That applies just as much to the mediation process as it would to the formal appeal process, as we were arguing.

I ask that question because there are of course separate amendments for mediation in health and in social care. I want to ensure that, when the time comes, which may be when regulations are considered, there will be the opportunity to consider this level of detail and to make sure that families are not relating to two or three separate mediators, plus the First-tier Tribunal, because in a sense that would not achieve the spirit that we sought in the debate on the issue.

My other points concern the review and the pilots. I welcome Amendment 33, which I think takes up the amendment that we tabled on Report about the need for this to be looked at in some detail. It may be three years’ time before we have the results. I hope that there are enough of us still around to see the outcomes of those pilots and the review to make sure that we can use the results productively. In that regard, can the Minister say whether during that time he envisages that there will be some kind of oversight of the pilots and the review process? Could there be some interim findings or representation from interested parliamentarians on some kind of review board or body, with sector representatives? He mentioned parents and young people as well. For us to approve this now and then wait three years is a long time to see what, if anything, is happening. Some oversight of that process would be very welcome.

Photo of Lord Nash Lord Nash The Parliamentary Under-Secretary of State for Education

My Lords, I thank my noble friend Lord Storey for his kind words. On the point made by the noble Lord, Lord Touhig, about the scope of the review, I assure him that we will not rule out any conclusions from it. We are currently revising the code and will engage with all interested parties, including the National Autistic Society, about their concerns with its drafting.

Concerning the points made by the noble Baroness, Lady Howarth, we will have a wide definition of mediation. In my opening remarks, I mentioned that there would be £30 million for independent supporters. That money will go through voluntary and other organisations, rather than to local authorities, but in addition we are giving local authorities £70 million to support implementation of the reforms.

On the start date for the review, the pilots will begin in the spring of 2015 when the first EHC plan appeals will be heard. We expect the review to begin at the same time and, if possible, slightly earlier.

As far as the points made by the noble Baroness, Lady Hughes, are concerned, when I saw the period of three years I probably had the same feelings that she has. They say that there is only one thing more dangerous than a young person in a hurry, and that is an old person in a hurry. Nevertheless, we will try to get the result as soon as we can, but it would not be sensible to try to have it earlier than in two years’ time.

I am very happy to discuss the make-up of the review and who is on it. It is important that that is seen to be as objective as possible. I am grateful for the noble Baroness’s remarks about us perhaps reaching an eventual consensus on this matter.

Again, I thank all noble Lords who have participated in this aspect of the Bill, and I hope that they will be able to continue working with the departments and offer their expertise as we shape the review.

Amendment 4 agreed.

Amendments 5 to 8

Moved by Lord Nash

5: Clause 51, page 40, line 19, at end insert—

“(4A) Regulations under subsection (4)(c) may include provision conferring power on the First-tier Tribunal, on determining an appeal against a matter, to make recommendations in respect of other matters (including matters against which no appeal may be brought).”

6: After Clause 51, insert the following new Clause—

“Right to mediation

(1) This section applies where—

(a) a decision against which an appeal may be brought under section 51 is made in respect of a child or young person, or

(b) an EHC plan for a child or young person is made, amended or replaced.

(2) Before the end of the prescribed period after the decision is made, or the plan is made, amended or replaced, the local authority must notify the child’s parent or the young person of—

(a) the right to mediation under section (Mediation: health care issues) or (Mediation: educational and social care issues etc), and

(b) the requirement to obtain a certificate under section 52 before making certain appeals.

(3) If the parent or young person wishes to pursue mediation under section (Mediation: health care issues) or (Mediation: educational and social care issues etc), he or she must inform the local authority of—

(a) that fact, and

(b) the issues in respect of which he or she wishes to pursue mediation (“the mediation issues”).

(4) If the mediation issues are, or include, the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan, the parent or young person must also inform the local authority of the health care provision which he or she wishes to be specified in the plan.”

7: After Clause 51, insert the following new Clause—

“Mediation: health care issues

(1) This section applies where—

(a) the parent or young person informs the local authority under section (Right to mediation) that he or she wishes to pursue mediation, and

(b) the mediation issues include health care provision specified in the plan or the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan.

(2) The local authority must notify each relevant commissioning body of—

(a) the mediation issues, and

(b) anything of which it has been informed by the parent or young person under section (Right to mediation)(4).

(3) If the mediation issues are limited to the health care provision specified in the plan or the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan, the responsible commissioning body (or, where there is more than one, the responsible commissioning bodies acting jointly) must—

(a) arrange for mediation between it (or them) and the parent or young person,

(b) ensure that the mediation is conducted by an independent person, and

(c) participate in the mediation.

(4) If the mediation issues include anything else—

(a) the local authority must—

(i) arrange for mediation between it, each responsible commissioning body and the parent or young person,

(ii) ensure that the mediation is conducted by an independent person, and

(iii) participate in the mediation, and

(b) each responsible commissioning body must also participate in the mediation.

(5) For the purposes of this section, a person is not independent if he or she is employed by any of the following—

(a) a local authority in England;

(b) a clinical commissioning group;

(c) the National Health Service Commissioning Board.

(6) In this section “responsible commissioning body”—

(a) if the mediation issues in question are or include the health care provision specified in an EHC plan, means a body that is under a duty to arrange health care provision of that kind in respect of the child or young person;

(b) if the mediation issues in question are or include the fact that no health care provision, or no health care provision of a particular kind, is specified in an EHC plan, means a body that would be under a duty to arrange health care provision of the kind in question if it were specified in the plan.”

8: After Clause 51, insert the following new Clause—

“Mediation: educational and social care issues etc

(1) This section applies where—

(a) the parent or young person informs the local authority under section (Right to mediation) that he or she wishes to pursue mediation, and

(b) the mediation issues do not include health care provision specified in the plan or the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan.

(2) The local authority must—

(a) arrange for mediation between it and the parent or young person,

(b) ensure that the mediation is conducted by an independent person, and

(c) participate in the mediation.

(3) For the purposes of this section, a person is not independent if he or she is employed by a local authority in England.”

Amendments 5 to 8 agreed.

Clause 52: Mediation

Amendments 9 to 15

Moved by Lord Nash

9: Clause 52, page 40, line 40, after “certificate” insert “under this subsection”

10: Clause 52, page 40, line 42, leave out “with the local authority” and insert “under section (Mediation: health care issues) or (Mediation: educational and social care issues etc)”

11: Clause 52, page 41, line 1, after “certificate” insert “under this subsection”

12: Clause 52, page 41, line 3, leave out “with the local authority” and insert “under section (Mediation: health care issues) or (Mediation: educational and social care issues etc)”

13: Clause 52, page 41, line 5, leave out “with the local authority” and insert “under the appropriate section”

14: Clause 52, page 41, line 8, leave out subsections (6) to (9)

15: After Clause 52, insert the following new Clause—

“Mediation: supplementary

(1) Regulations may make provision for the purposes of sections (Right to mediation) to 52, in particular—

(a) about giving notice;

(b) imposing time limits;

(c) enabling a local authority or commissioning body to take prescribed steps following the conclusion of mediation;

(d) about who may attend mediation;

(e) where a child’s parent is a party to mediation, requiring the mediator to take reasonable steps to ascertain the views of the child;

(f) about the provision of advocacy and other support services for the parent or young person;

(g) requiring a local authority or commissioning body to pay reasonable travel expenses and other expenses of a prescribed description, up to any prescribed limit;

(h) about exceptions to the requirement in section 52(3);

(i) about the training, qualifications and experience of mediators and mediation advisers;

(j) conferring powers or imposing requirements on local authorities, commissioning bodies, mediators and mediation advisers.

(2) In section 52 and this section “mediation adviser” means an independent person who can provide information and advice about pursuing mediation.

(3) For the purposes of subsection (2), a person is not independent if he or she is employed by any of the following—

(a) a local authority in England;

(b) a clinical commissioning group;

(c) the National Health Service Commissioning Board.

(4) In this section “commissioning body” means a body that is under a duty to arrange health care provision of any kind.”

Amendments 9 to 15 agreed.

Clause 53: Resolution of disagreements

Amendments 16 to 21

Moved by Lord Nash

16: Clause 53, page 41, line 42, at end insert “or (2A)”

17: Clause 53, page 41, line 43, after “disagreements” insert “within this subsection”

18: Clause 53, page 42, line 1, at end insert—

“(2A) The disagreements within this subsection are those about the exercise by the local authority of its functions relating to EHC needs assessments, the preparation and review of EHC plans, and re-assessment of educational, health care and social care needs, where the disagreement is between—

(a) the local authority and a responsible commissioning body, or

(b) a responsible commissioning body and the parents of children, or young people, in the authority’s area.”

19: Clause 53, page 42, line 5, after “disagreements” insert “within this subsection”

20: Clause 53, page 42, line 14, leave out from beginning to end of line 15 and insert—

“(5A) For the purposes of subsection (5) a person is not independent if he or she is employed by any of the following—

(a) a local authority in England;

(b) a clinical commissioning group;

(c) the National Health Service Commissioning Board.”

21: Clause 53, page 42, line 38, at end insert—

““responsible commissioning body”, in relation to any particular health care provision, means a body that is under a duty to arrange health care provision of that kind in respect of the child or young person concerned.”

Amendments 16 to 21 agreed.

Clause 66: Application of Part to detained persons

Amendment 22

Moved by Baroness Northover

22: Clause 66, page 48, line 35, at end insert—

“(ba) section 73;”

Photo of Baroness Northover Baroness Northover Lords Spokesperson (Women & Equalities), Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development) 4:30 pm, 5th February 2014

My Lords, this group of amendments builds upon those that we brought forward on Report and, we hope, address some of the important points raised by noble Lords during that debate. We are grateful to those noble Lords who have continued to raise the important issue of support for young offenders with EHC plans in custody. I particularly thank the noble Lord, Lord Ramsbotham, for his expert and, as ever, very determined contributions throughout and for his continued determination to ensure this small but highly vulnerable group of children and young people get the support that they need.

I am pleased that noble Lords accepted the Government’s amendments on Report. That means that today’s debate is, I hope, starting from a strong position. The Bill already ensures that: young offenders, their parents and professionals working with them can request an assessment for an EHC plan and those assessments can now start in custody; EHC plans will provide up-to-date, current information on entry to custody, owing to the requirement for local authorities to maintain the EHC plans of those under 18 who are not in education, employment or training for any reason; both home local authorities and relevant NHS health service commissioners are under a duty to use their best endeavours to arrange the education and health provision set out in an EHC plan for children and young people in custody; EHC plans must be kept by the home local authority while a young offender is detained and must be reviewed and maintained again immediately on release; and both youth offending teams and relevant custodial institutions are required to co-operate with the local authority.

This is a significant set of improvements over the current system. However, now we want to go even further to address the remaining concerns expressed by noble Lords during our previous debate on this subject—namely, that “best endeavours” seemed, certainly in the mind of the noble Lord, Lord Ramsbotham, not to create a strong enough obligation on local authorities and health commissioners, and that youth custodial institutions should be required to have regard to the code of practice.

Following productive discussions between our officials, the Special Educational Consortium and the Standing Committee for Youth Justice, we are delighted to be able to say that through Amendments 28 and 29 we are strengthening the “best endeavours” duty so that it now says that local authorities and relevant health commissioners must arrange appropriate special educational and appropriate health provision.

Not only that, but Amendments 30 and 31 amend the definition of “appropriate provision” so that it is clear that local authorities and health service commissioners must first seek to arrange the provision that is in an EHC plan. Where that is not practicable, they will arrange provision that corresponds as closely as possible to the EHC plan. Where what is in the EHC plan is no longer appropriate, the local authority or NHS health commissioner must arrange an alternative that is appropriate.

Amendments 22 and 32 also require both relevant youth accommodation and youth offending teams to have regard to the code of practice. This means that we can set out in statutory guidance how we expect them to fulfil their duties to co-operate with the local authority in ensuring that children and young people with EHC plans receive the support they need while in custody.

These changes will be further strengthened in future by commitments in the Ministry of Justice’s response to the Transforming Youth Custody consultation published in January. I know that my noble friend Lady Walmsley—I see that she is not in her place, but I hope she will hear this—will be pleased to hear that, in response to an e-mail from her, this document makes it clear that the arrangements for the new providers of education in young offender institutions, due to be in place by November this year, will require them to co-operate with local authorities in regard to young offenders with EHC plans. They will also retain the existing responsibilities that the current providers have for identifying and supporting young offenders with SEN. The document also makes it clear that identification and support for those with SEN will be part of the new secure colleges that the Government will set up through forthcoming legislation.

Finally, Amendment 34 will remove Clause 76, previously Clause 70. Due to an oversight, the amendment to delete this clause was inadvertently not moved following the debate on Report. I am sure that that was entirely my fault.

Taken together, these amendments will strengthen the changes that noble Lords agreed on Report and will ensure that children and young people with EHC plans in custody will receive the support that they need. I hope that noble Lords will be happy to support them.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I am extremely grateful to the Minister for what she has just said, and also for the many discussions and debates that we have had with both Ministers and officials during the Bill’s passage. I am extremely grateful for what has been done. Not only is it a great advance on what was there before; it has the benefit of building on the experience of many years ago regarding what could and should be possible in young offender institutions for people with problems that have otherwise gone unaddressed. I am particularly grateful for the movement that has been made since Report and for the strengthening of the requirement on local authorities to make certain that the change has happened.

I am also extremely grateful for two other things. The first was the Minister’s assurance that those of us who are interested in this subject, including people who are far more expert in it than I am, will be involved in the preparation of a code of practice which will be such an extremely important document in the future. The second was her assurance that the Ministry of Justice will be involved in those discussions as well. As I have explained before, there have been many good initiatives around the country but the Ministry of Justice’s response to them has not been all that was desired and they have been dropped.

Finally, I am grateful for the platform that has been provided for youth offending teams. A disturbing fact is that few commissioning groups in the country appear to realise that they have a responsibility for things such as mental health treatment of people who are undergoing community sentences. The fact that that is on the statute book with a clear “must” will provide just the stimulus that is needed to pull people together and make things better. I really am grateful for all the work that Ministers and officials have done on this part of the Bill.

Photo of Baroness Warnock Baroness Warnock Crossbench

Having put my name to the original amendment to remove the then Clause 70, perhaps I may also add my gratitude. This is a real step forward in the education of young people in custody—not just people with special educational needs, which most of them have in any case. In general, it is a landmark move forward, so I express my appreciation to the Government for that.

Photo of Baroness Hughes of Stretford Baroness Hughes of Stretford Shadow Spokesperson (Education)

My Lords, if you consider the amendments on young offenders that will have been added to the Bill in total when it is enacted and compare that to the position when we started—the complete exclusion of young offenders from any of the provisions on special educations needs—you can appreciate the enormous journey that has been made. I welcome that the Government have, in the end, listened to the arguments that were made by Members across the House. This issue has concerned many noble Lords on all Benches but I want to acknowledge in particular the expertise and leadership that the noble Lord, Lord Ramsbotham, brought to the issue, corralling us all together and making sure that we ultimately got the changes that we see today—which I very much welcome.

Photo of Baroness Northover Baroness Northover Lords Spokesperson (Women & Equalities), Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development)

Noble Lords will know what a huge relief it is to any Minister when the noble Lord, Lord Ramsbotham, expresses his pleasure at something we have done. I know how much he likes the word “must”, and I am extremely pleased to have been able to deliver this word to him. I thank the noble Baronesses, Lady Warnock and Lady Hughes. We are well and truly corralled for very good reasons, and I am very pleased that the noble Lord is content with where we have got to and with the current and future involvement of the Ministry of Justice. I hope that noble Lords will support these amendments. I beg to move.

Amendment 22 agreed.

Clause 69: EHC plans for certain detained persons: appeals and mediation

Amendments 23 to 27

Moved by Lord Nash

23: Clause 69, page 52, line 25, after “of” insert “detained persons’ EHC needs assessments and”

24: Clause 69, page 52, line 37, leave out “(9)” and insert “(5)”

25: Clause 69, page 52, line 43, leave out from first “to” to second “the” and insert “mediation under section (Mediation: health care issues) or (Mediation: educational and social care issues etc) are to be read as references to mediation with”

26: Clause 69, page 52, line 44, at end insert—

“(7A) Where, by virtue of subsection (7), the appropriate person has informed the mediation adviser that he or she wishes to pursue mediation with the home authority—

(a) the adviser must notify the authority, and

(b) the authority must—

(i) arrange for mediation between it and the appropriate person,

(ii) ensure that the mediation is conducted by an independent person, and

(iii) participate in the mediation.

For this purpose a person is not independent if he or she is employed by a local authority in England.”

27: Clause 69, page 53, line 1, leave out subsection (8) and insert—

“(8) Regulations under section (Mediation: supplementary) may make provision for the purposes of subsections (7) and (7A) of this section, and accordingly section (Mediation: supplementary) has effect for those purposes with the following modifications—

(a) the references in subsection (1) to commissioning bodies are to be ignored;

(b) the reference in subsection (1)(e) to a child’s parent is to be read as a reference to the parent of a detained person who is a child;

(c) the reference in subsection (1)(f) to the child’s parent or young person is to be read as a reference to the appropriate person;

(d) in subsection (3), paragraphs (b) and (c) are to be ignored;

(e) subsection (5) is to be ignored.”

Amendments 23 to 27 agreed.

Clause 70: Duty to keep EHC plans for detained persons

Amendments 28 to 31

Moved by Lord Nash

28: Clause 70, page 53, line 18, leave out “use its best endeavours to”

29: Clause 70, page 53, line 22, leave out “use its best endeavours to”

30: Clause 70, page 53, line 28, leave out paragraph (b) and insert “, or

(b) if it appears to the home authority that it is not practicable for that special educational provision to be provided, educational provision corresponding as closely as possible to that special educational provision, or”

31: Clause 70, page 53, line 36, leave out paragraph (b) and insert “, or

(b) if it appears to the detained person’s health services commissioner that it is not practicable for that health care provision to be provided, health care provision corresponding as closely as possible to that health care provision, or”

Amendments 28 to 31 agreed.

Clause 73: Code of practice

Amendment 32

Moved by Lord Nash

32: Clause 73, page 55, line 26, at end insert—

“(ga) youth offending teams;

(gb) persons in charge of relevant youth accommodation;”

Amendment 32 agreed.

Amendment 33

Moved by Lord Nash

33: After Clause 74, insert the following new Clause—

“Review of resolution of disagreements

(1) The Secretary of State and the Lord Chancellor must carry out a review of how effectively disagreements about the exercise of functions under this Part are being resolved.

(2) The Secretary of State and the Lord Chancellor must prepare a report on the outcome of the review.

(3) The Secretary of State and the Lord Chancellor must lay the report before Parliament before the end of the period of three years beginning with the earliest date on which any provision of this Part comes into force.”

Amendment 33 agreed.

Clause 76: Part does not apply to detained children and young people

Amendment 34

Moved by Lord Nash

34: Clause 76, leave out Clause 76

Amendment 34 agreed.

Amendment 35

Moved by Earl Howe

35: After Clause 86, insert the following new Clause—

“Purchase of tobacco etc. on behalf of persons under 18

(1) A person aged 18 or over who buys or attempts to buy tobacco or cigarette papers on behalf of an individual aged under 18 commits an offence.

(2) Where a person is charged with an offence under this section it is a defence—

(a) that the person had no reason to suspect that the individual concerned was aged under 18, or

(b) in a case where the person has bought or attempted to buy cigarette papers, that the person had no reason to suspect that the individual concerned intended to use the papers for smoking.

(3) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(4) A local weights and measures authority in England and Wales must enforce the provisions of this section in its area.

(5) Section 9 of, and Schedule 1 to, the Health Act 2006 (issue of fixed penalty notices in relation to certain smoking related offences) apply in relation to an offence under this section as they apply in relation to an offence under section 6(5) or 7(2) of that Act but with the following modifications—

(a) references to an enforcement authority are to be read as references to a local weights and measures authority;

(b) references to an authorised officer of an enforcement authority are to be read as references to any person authorised by a local weights and measures authority (whether or not an officer of the authority) in writing, either generally or specially, to act in matters arising under this section.

(6) Section 11 of, and Schedule 2 to, the Health Act 2006 (offence of obstruction of enforcement officers and powers of entry etc) apply for the purposes of this section as they apply for the purposes of Chapter 1 of Part 1 of that Act but with the following modifications—

(a) references to an enforcement authority are to be read as references to a local weights and measures authority;

(b) references to an authorised officer of an enforcement authority are to be read as references to any person (whether or not an officer of the authority) authorised by a local weights and measures authority in writing, either generally or specially, to act in matters arising under this section;

(c) references to Chapter 1 of Part 1 of the Act of 2006 are to be read as references to this section;

(d) section 11(5) is to be ignored;

(e) paragraph 10 of Schedule 2 is to be ignored.

(7) “Tobacco” has the same meaning in this section as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).”

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, I shall speak also to Amendments 36 to 41 and 45.

I am very pleased to have tabled this package of government amendments aimed at protecting young people from tobacco and nicotine addiction, which seek to do four things. They would introduce a regulation-making power to prohibit the sale of nicotine products to persons under the age of 18; would create a new offence of the proxy purchasing of tobacco; would make a technical change to the standardised packaging amendments that were passed by your Lordships on Report; and would amend existing smoke-free legislation in the Health Act 2006 to deliver the regulation-making powers on smoking in cars carrying children, as was your Lordships’ wish on Report, but with a more workable legislative framework. The amendments come at a late stage in the passage of the Bill, for which I apologise.

I will deal first with the provisions on the age of sale of nicotine products. There has been widespread support for the introduction of an age-of-sale restriction from the public health community and from the electronic cigarette industry. Responsible manufacturers of e-cigarettes are clear that their products are intended for people over the age of 18. I wrote to all noble Lords on 27 January to explain the key elements of this proposed new clause. I will summarise the main provisions. They provide the Secretary of State with the power to make regulations to prohibit the sale of nicotine products to persons under the age of 18. At present there is no general legal restriction on people under the age of 18 buying nicotine products, including electronic cigarettes, which are also known as e-cigarettes. The regulations to be made under this power would be subject to the affirmative resolution procedure to ensure that Parliament has the opportunity to scrutinise how the regulations would operate in practice before they were made.

This measure does not capture tobacco products, which are already subject to law restricting their sale to persons aged 18 and over. The penalty for committing the offence of selling a nicotine product to a person under 18 years of age would be a fine not exceeding level 4 on the standard scale, which is currently £2,500. We also have very little evidence on, for example, the impact on children’s developing lungs of their use of products such as e-cigarettes. The public health community is concerned that nicotine products could act as a gateway into smoking tobacco, as well as undermining the Government’s efforts to reshape social norms around tobacco use. We need to remember that young people can rapidly develop nicotine dependence and that nicotine products deliver nicotine and cause addiction.

Attempts were made to include an age-of-sale provision applicable throughout the EU in the revised European tobacco products directive, but this was not achieved. We therefore want to do this domestically through this

Bill. I hope noble Lords will understand why we are using the opportunity the Bill provides to take these additional steps. It is important that we act now to manage the risk of a gateway effect into tobacco use and the development of lifelong addictions to smoking.

I turn now to the proxy purchasing of tobacco. Your Lordships will be aware that we recently debated this issue in the context of the Anti-social Behaviour, Crime and Policing Bill. It was clear during those debates that there was widespread support among noble Lords for creating a proxy purchase offence for tobacco as a way of further reducing the supply of tobacco to children and young people. We must take action to address both the supply of, and the demand for, tobacco products among young people if we are to reduce the uptake of smoking. My noble friend Lord Taylor made it clear that the Government retained an open mind on this issue and that some of the arguments advanced in favour of a new offence had merit.

Since that debate, the Government have carefully reflected on the powerful arguments made by your Lordships. The Government have also taken into account the views of retailers and their representative bodies, which have long argued for the creation of a proxy-purchasing offence for tobacco. They feel it is unfair that current legislation sets out an offence for retailers that sell cigarettes to children, but that there is no offence of proxy purchasing. Let me be clear that I welcome the role that retailers play in ensuring stringent application of existing age-of-sale legislation for tobacco. I also pay tribute to the work done by retailer bodies, such as the Association of Convenience Stores, in supporting their members to effectively apply age-of-sale provisions for tobacco. The offence of proxy purchasing will be enforced by local authority trading standards officers, who will have the flexibility to issue a fixed penalty notice if they believe that an offence has been committed, rather than taking prosecution action.

It is important to note that this proposed new clause does not require local authorities to undertake regular programmes of enforcement; it therefore does not place any significant new regulatory burdens on local authorities. Local authorities know their communities better than anyone, and will know how best to address their public health priorities. This amendment allows local authorities to take targeted enforcement on proxy purchasing where they consider it is needed. It is an additional means to tackle smoking in their communities.

The arguments around effective enforcement have been well rehearsed previously, and I do not plan to revisit those issues in depth today. However, it is fair to say that experience in Scotland tells us that we are unlikely to see a vast number of convictions. Success will not be measured by the number of prosecutions alone, because, importantly, the new offence should generate a worthwhile deterrent effect. Alongside this new offence, the Government will also work proactively with local authorities, retailers and parents to highlight the issue of proxy purchasing of tobacco. We must work with communities to make it clear that it is wrong in principle for adults to buy cigarettes for young people.

I turn now to our technical amendments on standardised packaging. When reviewing the detail of the proposed new clause, we identified a small gap that these amendments address. They would allow Ministers to take enforcement action directly in relation to standardised packaging, even if none is taken by a local authority. As a precaution, and in line with other tobacco control legislation such as the Tobacco Advertising and Promotion Act, we think it is sensible for Ministers to have the power to do this.

Finally, I turn to smoking in private vehicles carrying children. During Report, your Lordships voted to accept an amendment to enable the Government to make regulations,

“making it an offence for any person who drives a private vehicle to fail to prevent smoking in the vehicle when a child or children are present”.

I have had a helpful discussion with the noble Lord, Lord Hunt of Kings Heath, about how it would be best to set out your Lordships’ intention in a legally workable way in this Bill. While the amendment is clear in its intention, it does not address key considerations such as enforcement, offences, penalties or territorial applicability. We have a responsibility, to be sure, that any amendment that makes its way on to the statute book could work in practice. I have therefore tabled, with the support of the noble Lord, Lord Hunt, the noble Baroness, Lady Finlay, and my noble friend Lord Ribeiro an alternative amendment that could better deliver in practice the principle that your Lordships voted for at Report.

The technical effect of this new amendment would be to amend existing smoke-free legislation in the Health Act 2006 to make it clear that the Secretary of State and Welsh Ministers have the power to make regulations to provide for a private vehicle to be smoke-free when a person under the age of 18 is present. During the passage of the 2006 Act, Ministers said that they did not want to use the powers in that legislation to make private vehicles smoke-free. The amendment, if enacted by Parliament, would make it clear that regulations could be made if the Government decided to prohibit smoking in private vehicles carrying children.

As I said at Report, the Government are clear that children should not be exposed to the harm of second-hand smoke. There are obviously many different ways in which to try to achieve that aim, and we are willing to listen to what Parliament has to say on the important principle of whether the Government should have the power to legislate to prevent smoking in cars when children are present. There will be opportunities in future for both Houses to discuss questions of implementation, if this is relevant once Members of both Houses have had their say on this overarching principle. I hope that noble Lords find the amendment tabled on smoking in cars helpful. I appreciate the opportunity to be clear about the Government’s position on this issue.

I hope that the House will welcome the action that we propose on a range of tobacco control measures. Given the growth in the market of electronic cigarettes, it is important that we act now to reduce the availability of addictive nicotine products to young people. On proxy purchasing of tobacco, the amendment will enable local authorities to take action to prevent adults buying tobacco for young people—a deplorable act. A proxy purchase offence will sit as another component within a wide set of available tobacco control measures to reduce the uptake of smoking by children and young people. On smoking in cars, the government amendment builds on the original amendment to create a new offence within a more workable legal framework.

Finally, I have already registered my gratitude to the noble Lord, Lord Hunt, my noble friend Lord Ribeiro, and the noble Baroness, Lady Finlay, for supporting the amendment on smoking in cars. I pay tribute, too, to the noble Lord, Lord Faulkner, for adding his name to the other amendments in this package. I hope that noble Lords will support them, and I beg to move.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords) 4:45 pm, 5th February 2014

First, I thank the Minister for his kind words about my signing all the amendments in this group with the exception of Amendment 41, which I did not sign not because I disagreed with it—I think that it is absolutely excellent—but because other noble Lords put their names to it ahead of me and the list was full when I asked whether I could add mine.

I start with a general point, which I cannot resist making. I first went to see the Public Bill Office after Second Reading last July and asked its advice on whether there was any possibility of including a clause on standard packaging for tobacco products as a child protection measure in the Bill. I never dreamt that by Third Reading the Bill would contain such a range of powerful tobacco control measures, especially in view of the fact that there was no reference to a single one when the Bill came to us from another place.

I particularly thank the noble Baronesses, Lady Finlay of Llandaff and Lady Tyler of Enfield, and the noble Lord, Lord McColl, for agreeing to sign our original cross-party amendments on standard packaging. I commend the noble Lord, Lord Ribeiro, for persisting with his campaign to ban smoking in cars when children are present, and my right honourable friend Andy Burnham and my noble friend Lord Hunt of Kings Heath for their support on all these issues. I particularly thank the Health Minister, the noble Earl, Lord Howe, whose courtesy, willingness to listen and determination to get the policy right nobody in this House could possibly fault. I also mention in dispatches the noble Lord, Lord Taylor of Holbeach. As the Minister said, he indicated on the second day of the Report stage of the Anti-social Behaviour, Crime and Policing Bill, as recently as 14 January, that he had an open mind on proxy purchasing, although he was not as forthcoming as the Minister has been with his amendment today.

When the Government come to implement the policy on proxy purchasing, I wonder if they would like to look at one element of the experience in Scotland. When Scotland introduced a law on proxy purchasing in October 2011, it brought in a retailer registration scheme at the same time. This is a low-cost licensing scheme that operates in conjunction with fixed penalty notices and gives the courts the ability to impose banning orders. It requires all tobacco retailers to be registered on one national register in order to sell tobacco. The costs to the industry of the scheme are minimal and are limited really to the one-off labour cost needed to fill out the form. Costs to the Government include the initial set-up costs of advertising and marketing to give retailers information about the need to comply with the scheme and the process to be undertaken, and the cost of a database to hold national-level information on retailers. Such a scheme would give local enforcement agencies a very valuable weapon in tackling illicit trade and in enforcing other tobacco control regulations—for example, the ban on sales to minors. It would also help to protect the great majority of honest retailers from unfair competition from the unscrupulous minority who are prepared to deal in illicit products.

Finally, I go back to the speech from the noble Lord, Lord Taylor of Holbeach, on the anti-social behaviour Bill and commend one sentence in it that I have not heard from any Minister before. He said:

“The Government are determined … to stamp out smoking as a habit, particularly among young people, so they are being proactive”.—[Hansard, 14/1/14; col. 141.]

Indeed they are and the amendments before us today are proof of that. They are an indication of just how far we have come and noble Lords in all parts of the House deserve great credit for the contribution that they have made to public health by adding these vital tobacco control amendments to this Bill.

Photo of Baroness Tyler of Enfield Baroness Tyler of Enfield Liberal Democrat

My Lords, I, too, would like to say a few words about Amendment 41. I also was one of those disappointed to get there too late to add my name to it. I thank the Minister for listening and for everything that he has done to get us to the position we are now in. The amendment he has brought forward with other noble Lords is laudable, and it is right that we are working hard to make sure that it is legally workable. I pay tribute to him for that.

I have a couple of other comments. I, too, am so pleased that this is part of a comprehensive package of tobacco control measures—something to try to prevent young people picking up that nicotine addiction that too often leads to dependency early in life. This is a landmark set of measures, both for child protection and for the public health of young people. I thank everyone who has been involved in that. It also demonstrates what we can do in your Lordships’ House when we work in a non-partisan way. The discussions and the debates that we have had across the House and across Benches have brought home to me how good it can be that we can work in this way.

Finally, on enforcement and workability—I made this point on Report—I am very pleased that there will be opportunities for both Houses to discuss methods of implementation, provided we get to that stage. There are many people who have a lot of expertise to bring to bear. Only this morning, I was looking at a Canadian Cancer Society review from this year which listed the countries which already have bans of this type in place. It includes Canadian provinces, Australian states, six of the US states, Mauritius, South America, Bahrain and Puerto Rico. I say that to emphasise that it can be done. It is being done in other parts of the world. Of course, they all have their own ways of doing things. I suspect that none of them will be directly comparable, but it clearly can be done. The fact that there is so much experience elsewhere in the world is something that we should take account of when we have those follow-up discussions on implementation.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 5:00 pm, 5th February 2014

My Lords, it has been an enormous privilege to be part of the movement across all Benches in this House to do something about controlling the use of tobacco, particularly in relation to child protection. Tobacco control has for many years been something that medicine, the discipline from which I come, has been arguing and pushing for. It is with a great sense of relief that I see these amendments before us today.

I thank everyone who has contributed to these and previous debates, but I especially thank the noble Earl for the way in which he has remained in contact, listened to discussions, been very open to suggestions and has really taken on board a rapidly changing landscape in the atmosphere of this House, which has supported these moves. I would have added my name to the other amendments had I not been so busy checking the one to which I did add my name before the time ran out.

The issue of e-cigarettes is really important; they have crept up on us rapidly. They give a bigger nicotine hit, so users say, than cigarettes and they have flavourings that are likely to attract young people. So, moves towards controlling them as well are really important. I know that the Chief Medical Officer has looked at this carefully and is concerned. I share those concerns, as do many others in my discipline of medicine. I hope that in the years ahead we will see a drop in cigarette and tobacco-related diseases presenting in our A&E departments, GP surgeries and hospitals.

Photo of Lord Ribeiro Lord Ribeiro Conservative

My Lords, I add my appreciation to my noble friend the Minister for getting us to the point where we are today. Little did I wonder when I introduced my Private Member’s Bill way back in July 2012 that we would actually be at this position. As the noble Baronesses, Lady Finlay and Lady Tyler, rightly said, this has been a cross-party initiative right across the House. I am grateful for the conversations that I have had with my noble friend and for the way in which the Government have shifted their position both publicly and privately. That is very rewarding.

Thanks to the Tube strike today, I came in by taxi. The best way to find out what the average member of the British public thinks about anything is to ask your taxi driver. I noted that he had a no-smoking sign in his cab. I asked, “What do you think about this Bill on smoking in cars that we might be able to resolve today?”. He held up a packet of cigarettes, to my surprise, and said, “I’m a smoker. I don’t smoke in the cab, I go outside to smoke. Why would anybody want to smoke in a car with children present? Why would they?”. That was his reaction. When we know that 85% of smokers think that it is bonkers to smoke in a car when children are present, we realise that we have finally made the point that this is more about child protection—protecting young children with young lungs, who are likely to end up with long-term respiratory problems—than it is about removing personal liberties.

I hope that the Government will continue to re-energise this educational programme because it is that 15% of the public who do not recognise the importance of not smoking in cars that we need to get at. I have every confidence that the Government will do so. Legislation can always be used as a blunt instrument but it is interesting that, since the seat-belt legislation was brought in, the current compliance rate is more than 90%. Some 95% of people who clunk-click would never even think of driving off without putting their seat belts on. In years to come, I hope that people will wonder why they ever smoked in cars with children present.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, somehow I never manage to get my name on amendments, but it never prevents me from speaking. I welcome the package of measures being proposed. Ever since I introduced the amendment that stopped smoking in the Peers’ Guest Room, I have been one of the team quietly working towards the place that we have now reached. The Minister must forgive me if I ask him to say where we are and when we will reach the point at which all these measures will be implemented.

I muttered to the noble Baroness, Lady Finlay, “Is it going to happen, or not? Or is it simply a power that a Minister will have?” Can the Minister give us a clearer picture as to when it will happen? I am still waiting for the shutters to go down in 2015 on tobacco in small shops. Every year it means that more children are not protected by all the methods that he wishes to introduce.

I have watched the noble Earl’s own journey. I believe he has always wanted to be here. He has taken us steadily, and somewhat cleverly, through to a point where the industry which was vociferous in its opposition has no representatives present here today. That is a very interesting position to have reached. I am immensely grateful for that but, with my usual impatience, I want to know when the implementation date will be.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, I am not going to break the consensus but I must declare an interest—as I did previously—in that I am an associate member of the Lords and Commons Cigar and Pipe Smokers’ Club.

This House has made its decisions on these matters and it is not for me, nor anyone else, to say that it was wrong, particularly since one of the amendments was voted on and carried. The House of Commons has yet to consider these amendments and I have no doubt that it will do so in its wisdom and in the knowledge that one of its duties is to protect all minorities, as well as majorities.

The noble Lord, Lord Faulkner of Worcester, helpfully quoted a Minister as saying that the policy of the Government was to stamp out smoking altogether. That is fair enough, but if that is their view—if they believe that smoking is so dangerous that it ought to be stamped out altogether—why do they not bring forward a Bill to make tobacco smoking illegal? I have asked that question before; I have never had an answer, and I doubt very much whether I am going to get an answer today. Those who take to smoking provide the Treasury with about £10.5 billion in extra revenue every year. An honest Government—a Government who put principle before financial gain—would say that this is so dangerous that we ought not to allow it to happen. I do not think that the Government will say that today.

I wish to ask one or two questions for clarification in relation to Amendment 41. The noble Earl has said “smoking in cars” several times today, but that is not what the amendment says. Amendment 41 refers to where a person under the age of 18 is present “in the vehicle”. There are many more vehicles than cars. I do not want to be helpful to the Government, but I am being helpful in pointing this out.

This clarification is necessary because, of course, there are other kinds of vehicle. What about motor caravans? They are not cars—they are big lorries, if anything. Is smoking to be banned in a motor caravan, which is a living space? A towed caravan is also a living space. Will they be affected? What about rickshaws? Smoking in cabs, incidentally, is already banned, if I am not mistaken, under previous legislation. We do not have a ban on rickshaws but we do have rickshaws in London. Are they vehicles? These matters ought to be clarified.

Another kind of vehicle that someone raised with me—I did not think of it myself—is a motor launch. Is that a vehicle? Will smoking be banned in launches when children are present?

These matters need clarifying and the Government will have the opportunity in another place to make those clarifications. I hope that I have been helpful.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I welcome these amendments and I congratulate the noble Earl and all concerned. With this legislation there must be education. Smoking is a public health matter and I hope that local authorities will take up these measures with great energy and that the other place will accept them.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, this is an impressive suite of measures and we are all grateful to the noble Earl for bringing them forward today. My noble friend Lord Faulkner referred to the early discussions that he and colleagues across the House had with the Public Bill Office to ensure that it was in order to bring an amendment on smoking within the Bill, and so, with a little flexibility and the door slightly ajar, a great number of substantive changes have been made. The noble Lords who took that initiative deserve a great deal of credit.

I wish to speak principally to Amendment 41, to which I have added my name, in relation to the banning of smoking in cars, I say to the noble Lord, Lord Stoddart, when children are present. The main thrust of my amendment which was agreed to on Report has now been incorporated within the Government’s amendment This will enable it to be sent to the House of Commons in a watertight fashion, where I hope it will be accepted. It follows the principle we have come to that there ought to be a ban on smoking in cars when children are present. As I acknowledged on Report, the details need to be consulted upon, and the Government have the ability to do that because of the regulation powers contained in the amendment.

Many noble Lords have been thanked today. I wish to add my thanks to them, particularly my noble friend Lord Faulkner, the noble Baronesses, Lady Tyler and Lady Finlay, and the noble Lord, Lord Ribeiro, for their work in this area. I should also mention the British Lung Foundation, which has done outstanding work to support this initiative, and of course also ASH, which has given general support on a number of these important amendments. I hope noble Lords will also acknowledge the work of my honourable friend Mr Alex Cunningham MP, who pioneered the Private Member’s Bill in the other place on which we have built our work.

I will leave it to the Minister to respond to the helpful and interesting intervention by the noble Lord, Lord Stoddart, but I do understand the point that he is making. He is saying, if smoking is so clearly harmful—which it is—why do we not just ban it? I just have to say here that there are serious issues around criminalising behaviour in which so many millions of people indulge. Of course, if smoking had just been invented, I doubt whether it would have got approval—but we are where we are, and we are simply trying to protect children who are in a very vulnerable position.

May I ask the noble Earl, Lord Howe, one question, which we discussed yesterday? It is about the potential role of the police in enforcement. Can he confirm to the House that the power that the amendment, if accepted in the other place, would give means that the police might have a role in enforcement? I understand that the Government wish to consult the Association of Chief Police Officers, but will the Minister confirm that the wording of the amendment would allow that to take place? That would be very helpful.

The banning of nicotine products for under-18s is welcome—but may I raise a point made to me yesterday by the Proprietary Association of Great Britain? It was concerned that if the measure were passed it would prohibit the sale of nicotine replacement therapy to adolescents. I have had a helpful response from the Minister, in which he says that the regulation-making power embraced within his amendments allows for exemptions, which could include licensed nicotine products indicated for use under the age of 18. The noble Earl told me that he plans to work with key stakeholders when developing the regulations, to establish which exemptions are possible and necessary, and how they would work in practice. May I ask him to consider involving the PAGB in those consultations?

Finally, my noble friend Lord Faulkner talked about the Scottish licensing scheme. Would the Government, in taking forward regulations in this area, be prepared at least to look at the experience in Scotland, to see whether there are any lessons to be learnt from it?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 5:15 pm, 5th February 2014

My Lords, I am grateful to noble Lords from all parts of the House for their support for the government amendments, and I thank all noble Lords who have been so energetic and assiduous in this area of policy for the action that they have taken, and the focus that they have afforded to Ministers to promote the health of young people under 18 in this respect. I completely concur with the noble Baroness, Lady Finlay, who told us how addictive nicotine is: tobacco use remains the single biggest preventable cause of death in England. We surely must do all we can to encourage communities to make tobacco less desirable and less accessible, if we are to stop the perpetuation of smoking from one generation to the next.

My noble friend Lord Ribeiro was right, too. The purpose of the amendments is to protect children and young people from the harms of tobacco use and a lifetime of nicotine addiction. I was intrigued and interested to hear from the noble Lord, Lord Faulkner, about the retailer registration scheme in Scotland, and I do indeed undertake to look at it.

The noble Baroness, Lady Howarth, asked me to be a little more precise about the timetable for implementation across the piece. As regards nicotine products, we have not taken a decision on timing. It will be partly dependent on the timetable for laying and making regulations, but the Government want to move as quickly as possible to get the provisions in place. As regards standardised packaging, the timetable will be wholly dependent on the decision the Government take once we have received Sir Cyril Chantler’s report, and we have not taken that decision yet. On proxy purchasing, we need to engage with stakeholders appropriately. It is very difficult for me to give the noble Baroness a timetable because there are technical issues to be looked at; indeed, we would want to examine the experience of Scotland. But we are clear that this is a measure that should be proceeded with.

On smoking in cars, I think my answer has to be: one step at a time. Questions of whether the Government would move forward with legislation or what the detail of the regulations would include are debates to be had at another time, once both Houses have expressed their will on the principle. It would be inappropriate for me to express firm views in advance of those discussions.

That leads me to the questions posed by the noble Lords, Lord Hunt and Lord Stoddart. The noble Lord, Lord Stoddart, asked about the definition of vehicles. The answer is that we have allowed ourselves the scope to define in regulations, should regulations be laid, what kinds of vehicles should be covered. The noble Lord, Lord Hunt, asked me to confirm that the police could be involved in the enforcement of this offence should it be created. I can confirm that the wording of the amendment that we are tabling today allows that scope but, as I have indicated, we need to engage with the police and other stakeholders to determine exactly how this would work.

Finally, the noble Lord, Lord Stoddart, posed the question that he has asked on a number of occasions as to why the Government do not simply make smoking itself illegal. My answer has to be that almost 20% of adults in England smoke and it would be difficult if not impossible to criminalise 7 million people at a stroke. We want above all to help current smokers to quit and to stop young people taking up smoking in the first place. We know that two-thirds of smokers want to quit but their addiction makes doing so very difficult. That is the approach we are taking.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

The Minister says that he does not want to criminalise 7 million people, or 20% of the population. But of course that has been done before, as was pointed out by the noble Lord, Lord Ribeiro. The non-wearing of seat belts was made a criminal offence for between 25 million and 30 million people at the time that the legislation went through, which, incidentally, I supported. The excuse that there are too many people smoking who would be criminalised simply will not wash.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I doubt that in the early 1980s we had a population that was addicted to not wearing seat belts.

Noble Lords:

Oh!

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I was in the House of Commons at that time, and I can assure the noble Earl that the number of complaints I had, from my own constituents and other people, about the compulsory wearing of seat belts was enormous. But I bravely resisted those complaints and spoke in favour of the then Government who brought the seat-belt legislation forward, and of course it was later extended to back-seat passengers as well.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I am sure that noble Lords would love to continue this debate, and perhaps we could do so on another occasion. I am grateful to the noble Lord, Lord Stoddart, for reminding us of those debates.

We all agree, I am sure, that action we take now to stop young people taking up smoking will have a significant beneficial impact on public health in the long term, which was a point made by my noble friend Lord Ribeiro. It will help young people to live longer and healthier lives, and I say, “Hear, hear!” to that.

Amendment 35 agreed.

Amendments 36 and 37

Moved by Earl Howe

36: After Clause 86, insert the following new Clause—

“Prohibition of sale of nicotine products to persons under 18

(1) The Secretary of State may by regulations make provision prohibiting the sale of nicotine products to persons aged under 18.

(2) A person who breaches a prohibition in regulations under subsection (1) commits an offence.

(3) Subsection (2) does not apply if—

(a) at the time of the sale, the person to whom the nicotine product is sold is employed by a manufacturer of nicotine products to which regulations under subsection (1) apply or by a dealer in such products (whether wholesale or retail), and

(b) the purchase of the product is for the purposes of the manufacturer’s or dealer’s business.

(4) Where a person is charged with an offence under this section it is a defence that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence.

(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(6) The Secretary of State may by regulations—

(a) amend section (Purchase of tobacco etc. on behalf of persons under 18) (purchase of tobacco etc on behalf of persons under 18) so as to apply it (with or without modifications) in relation to nicotine products, or

(b) provide for that section to apply (with or without modifications) in relation to nicotine products.

(7) Regulations under this section may make provision in relation to—

(a) all nicotine products,

(b) nicotine products of a specified kind, or

(c) nicotine products subject to specified exceptions.

(8) The Secretary of State must obtain the consent of the Welsh Ministers before making regulations under this section which would (if contained in an Act of the National Assembly for Wales) be within the legislative competence of that Assembly.

(9) For the purposes of this section “nicotine product” means—

(a) a device which is intended to enable nicotine to be consumed by an individual or otherwise to be delivered into the human body,

(b) an item which is intended to form part of a device within paragraph (a), or

(c) a substance or item which consists of or contains nicotine and which is intended for human consumption or otherwise to be delivered into the human body.

(10) It does not matter for the purposes of subsection (9)(a) whether the device is also intended to enable any other substance to be consumed by an individual or otherwise to be delivered into the human body.

(11) The following are not nicotine products for the purposes of this section—

(a) tobacco;

(b) cigarette papers;

(c) any device which is intended to be used for the consumption of lit tobacco.

(12) In this section—

“specified” means specified in regulations under this section;

“tobacco” has the same meaning as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).”

37: After Clause 86, insert the following new Clause—

“Amendments consequential on section (Prohibition of sale of nicotine products to persons under 18)

(1) The Children and Young Persons Act 1933 is amended in accordance with subsections (2) to (6).

(2) In the italic heading before section 12A, after “tobacco” insert “or nicotine products”.

(3) In section 12A (restricted premises orders)—

(a) in subsection (1), after “tobacco” insert “or nicotine”,

(b) in subsection (3), for “or cigarette papers” substitute “, cigarette papers or nicotine product”, and

(c) in subsection (7)(a), after “tobacco” insert “or nicotine”.

(4) In section 12B (restricted sale orders)—

(a) in subsection (1), after “tobacco” insert “or nicotine”,

(b) in subsection (3)—

(i) in paragraph (a), for “or cigarette papers” substitute “, cigarette papers or nicotine product”,

(ii) in paragraph (b), for “or cigarette papers” substitute “, cigarette papers or nicotine products”,

(iii) in each of paragraphs (c) and (d) omit “cigarette” in each place, and

(iv) in each of those paragraphs, after “tobacco” insert “or nicotine products”,

(c) in subsection (5), after “tobacco” insert “or nicotine”, and

(d) in subsection (6)—

(i) omit “cigarette”, and

(ii) after “tobacco” insert “or nicotine products”.

(5) In section 12C(1)(a) (enforcement), for “or cigarette papers” substitute “, cigarette papers or nicotine product”.

(6) In section 12D (interpretation)—

(a) in subsection (1), in the opening words, for ““tobacco offence”” substitute ““tobacco or nicotine offence””,

(b) in that subsection omit the “or” at the end of paragraph (b) and at the end of paragraph (c) insert “, or

(d) an offence committed under section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 on any premises (which are accordingly “the premises in relation to which the offence is committed”).”, and

(c) after subsection (2) insert—

“(2A) In sections 12A to 12C “nicotine product” means a nicotine product within the meaning of section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 the sale of which to persons aged under 18 is for the time being prohibited by regulations under subsection (1) of that section.”

(7) In section 5 of the Children and Young Persons (Protection from Tobacco) Act 1991 (enforcement action by local authorities in England and Wales)—

(a) in subsection (1)(a), for “and sections 3 and 4 above” substitute “, sections 3 and 4 above and section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 (prohibition of sale of nicotine products to persons under 18)”, and

(b) after subsection (1) insert—

“(1A) Subsection (1) applies in relation to section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 only if regulations under subsection (1) of that section are for the time being in force.”

(8) The Secretary of State may by regulations make provision amending, repealing, revoking or otherwise modifying any provision made by or under an enactment (whenever passed or made) in connection with provision made by or under section (Prohibition of sale of nicotine products to persons under 18).

(9) In subsection (8) “enactment” includes a Measure or Act of the National Assembly for Wales.”

Amendments 36 and 37 agreed.

Clause 87: Regulation of retail packaging etc of tobacco products

Amendments 38 to 40

Moved by Earl Howe

38: Clause 87, page 63, line 1, after first “regulations” insert “—

(a) ”

39: Clause 87, page 63, line 4, at end insert “;

(b) make provision for the appropriate minister to direct, in relation to cases of a particular description or a particular case, that any duty imposed on a local weights and measures authority in Great Britain or a district council in Northern Ireland by virtue of provision under paragraph (a) is to be discharged instead by the appropriate minister.”

40: Clause 87, page 63, line 36, at end insert—

““appropriate minister”—

(a) in relation to England, means the Secretary of State,

(b) in relation to Wales, means the Welsh Ministers,

(c) in relation to Northern Ireland, means the Department of Health, Social Services and Public Safety, and

(d) in relation to Scotland, means the Scottish Ministers;”

Amendments 38 to 40 agreed.

Clause 88: Protection of children’s health: offence of smoking in a private vehicle

Amendment 41

41: Clause 88, page 64, leave out lines 11 to 13 and insert—

“(1) The Health Act 2006 is amended as follows.

(2) In section 5 (smoke-free vehicles)—

(a) after subsection (1) insert—

“(1A) Regulations under this section may in particular provide for a private vehicle to be smoke-free where a person under the age of 18 is present in the vehicle.”, and

(b) in subsection (2), for “The regulations” substitute “Regulations under this section”.

(3) In section 9 (fixed penalties), after subsection (1) insert—

“(1A) The appropriate national authority may by regulations provide that, in the circumstances specified in the regulations, an authorised officer of an enforcement authority (see section 10) who has reason to believe that a person has committed an offence under section 8(4) in relation to a vehicle in relation to which the authorised officer has functions may give the person a penalty notice in respect of the offence.”

(4) In section 10(1) (power to designate bodies or descriptions of body as enforcement authorities)—

(a) after “designating the” insert “persons or”, and

(b) after “descriptions of” insert “person or”.

(5) In section 79 (orders and regulations)—

(a) in subsection (4) (powers to which affirmative procedure applies), in paragraph (a) (powers in Part 1), for “or 8(7)” substitute “, 8(7) or 9(1A)”,

(b) in that subsection, in paragraph (f) (powers in Schedule 1), for “or 8” substitute “, 8 or 17”, and

(c) after that subsection insert—

“(4A) No statutory instrument containing regulations under section 9(1A) or paragraph 17 of Schedule 1 may be made by the Welsh Ministers unless a draft of the instrument has been laid before, and approved by a resolution of, the National Assembly for Wales.”

(6) In Schedule 1 (fixed penalties), after paragraph 16 insert—

“Power to amend or modify Schedule

17 The appropriate national authority may by regulations—

(a) amend this Schedule so as to modify its application in relation to penalty notices issued by an authorised officer of an enforcement authority of a particular kind, or

(b) provide for this Schedule to apply with modifications in relation to such notices.””

Amendment 41 agreed.

Amendment 42

Moved by Lord Nash

42: After Clause 89, insert the following new Clause—

“Parent carers

(1) In the Children Act 1989, after section 17ZC (as inserted by section 89) insert—

“17ZD Parent carers’ needs assessments: England

(1) A local authority in England must, if the conditions in subsections (3) and (4) are met, assess whether a parent carer within their area has needs for support and, if so, what those needs are.

(2) In this Part “parent carer” means a person aged 18 or over who provides or intends to provide care for a disabled child for whom the person has parental responsibility.

(3) The first condition is that—

(a) it appears to the authority that the parent carer may have needs for support, or

(b) the authority receive a request from the parent carer to assess the parent carer’s needs for support.

(4) The second condition is that the local authority are satisfied that the disabled child cared for and the disabled child’s family are persons for whom they may provide or arrange for the provision of services under section 17.

(5) An assessment under subsection (1) is referred to in this Part as a “parent carer’s needs assessment”.

(6) Subsection (1) does not apply in relation to a parent carer if the local authority have previously carried out a care-related assessment of the parent carer in relation to the same disabled child cared for.

(7) But subsection (1) does apply (and so a parent carer’s needs assessment must be carried out) if it appears to the authority that the needs or circumstances of the parent carer or the disabled child cared for have changed since the last care-related assessment.

(8) “Care-related assessment” means—

(a) a parent carer’s needs assessment;

(b) an assessment under any of the following—

(i) section 1 of the Carers (Recognition and Services) Act 1995;

(ii) section 6 of the Carers and Disabled Children Act 2000;

(iii) section 4(3) of the Community Care (Delayed Discharges) Act 2003.

(9) A parent carer’s needs assessment must include an assessment of whether it is appropriate for the parent carer to provide, or continue to provide, care for the disabled child, in the light of the parent carer’s needs for support, other needs and wishes.

(10) A local authority in carrying out a parent carer’s needs assessment must have regard to—

(a) the well-being of the parent carer, and

(b) the need to safeguard and promote the welfare of the disabled child cared for and any other child for whom the parent carer has parental responsibility.

(11) In subsection (10) “well-being” has the same meaning as in Part 1 of the Care Act 2014.

(12) A local authority, in carrying out a parent carer’s needs assessment, must involve—

(a) the parent carer,

(b) any child for whom the parent carer has parental responsibility, and

(c) any person who the parent carer requests the authority to involve.

(13) A local authority that have carried out a parent carer’s needs assessment must give a written record of the assessment to—

(a) the parent carer, and

(b) any person to whom the parent carer requests the authority to give a copy.

(14) A local authority in England must take reasonable steps to identify the extent to which there are parent carers within their area who have needs for support.

17ZE Parent carers’ needs assessments: supplementary

(1) This section applies for the purposes of section 17ZD.

(2) The references in section 17ZD to providing care include a reference to providing practical or emotional support.

(3) Where a local authority—

(a) are required to carry out a parent carer’s needs assessment, and

(b) are required or have decided to carry out some other assessment of the parent carer or of the disabled child cared for, the local authority may combine the assessments.

(4) The Secretary of State may by regulations make further provision about carrying out a parent carer’s needs assessment; the regulations may, in particular—

(a) specify matters to which a local authority is to have regard in carrying out a parent carer’s needs assessment;

(b) specify matters which a local authority is to determine in carrying out a parent carer’s needs assessment;

(c) make provision about the manner in which a parent carer’s needs assessment is to be carried out;

(d) make provision about the form a parent carer’s needs assessment is to take.

(5) The Secretary of State may by regulations amend the list in section 17ZD(8)(b) so as to—

(a) add an entry,

(b) remove an entry, or

(c) vary an entry.

17ZF Consideration of parent carers’ needs assessments

A local authority that carry out a parent carer’s needs assessment must consider the assessment and decide—

(a) whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;

(b) whether the disabled child cared for has needs for support;

(c) if paragraph (a) or (b) applies, whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and

(d) if they could be so satisfied, whether or not to provide any such services in relation to the parent carer or the disabled child cared for.”

(2) In section 104 of the Children Act 1989 (regulations and orders)—

(a) in subsections (2) and (3A) (regulations within subsection (3B) or (3C) not subject to annulment but to be approved in draft) after “(3AA),” insert “(3AB),”, and

(b) after subsection (3AA) insert—

“(3AB) Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 17ZE(5).””

Photo of Lord Nash Lord Nash The Parliamentary Under-Secretary of State for Education

My Lords, both in Committee and on Report, we have discussed support for parent carers. I am delighted to move Amendment 42, which will insert a new clause on the assessment of support for parent carers into Part 5 of the Children and Families Bill. I particularly thank the noble Baroness, Lady Pitkeathley, and my noble friend Baroness Tyler for the time they spent discussing the issue with me and officials. I sincerely thank the parent carers whom I met recently for sharing with me their moving stories.

On Report, I committed to bring back an amendment in response to the powerful arguments that had been made. I am pleased to bring forward an amendment to consolidate existing legislation on parent carers of disabled children into the Children Act 1989 and to streamline the legislation so that it is consistent with the approach being taken to young carers and carers of adults. The consolidated legislation will remove the requirement for those with parental responsibility for disabled children to be providing substantial and regular care in order to be assessed. It will take a more consistent approach across carers and avoid confusion. The legislation will also require local authorities to assess on the appearance of needs as well as following a request by a parent carer. This will benefit those parents who are not aware of the rights.

The amendment specifically requires a local authority to consider the well-being of the parent carer in carrying out the needs assessment alongside the need to safeguard and promote the welfare of the disabled child, which of course must remain of paramount importance. The requirement to consider well-being builds on existing legislation, which already requires local authorities to consider aspects of parental well-being, including whether they wish to work or to undertake education, training or leisure activities. The amendment widens the definition of “well-being” to the definition in Part 1 of the Care Bill. This wider definition includes other aspects of well-being, such as physical and mental health and emotional well-being. The amendment means that we are taking a more consistent approach to different groups of carers.

As I said on Report, I also recognise that there is work to do to ensure that guidance sets out clearly the legislative framework on how services should work together to support families. My officials are working with representatives of parent carers and local authorities to consider the changes to statutory guidance that are needed.

I hope that your Lordships agree that this amendment is necessary, and I urge noble Lords to support it. I beg to move.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

Noble Lords will not be surprised to hear that I am very pleased with the government amendment. Much more important, parent carers everywhere will be relieved and delighted. All that we ever wanted was for parent carers to have the same rights to assessment as those which have been given by this Government and previous Governments to carers of adults and to young carers. We also wanted the well-being principle to be enshrined in legislation for parent carers as it has been for other carers.

We are given to understand that nothing so pleases the Almighty as a sinner that repenteth. While I would not for a moment wish to accuse the noble Lord of being a sinner, he and his officials were certainly a bit resistant to these ideas at the beginning, but—no matter—the important thing is where we have ended up. This amendment sends a strong message to parent carers that their well-being really matters. I pay warm tribute to the Minister and his officials for being willing to listen, to meet parent carers and to bring this elegant and wide-ranging solution to the problems which those parent carers so graphically illustrated in his meeting with them.

I want also to thank colleagues across this House and in another place, the noble Baronesses, Lady Lister, Lady Tyler and Lady Howarth, and Mr Norman

Lamb, for their support, as well as my own Front Bench. Most particularly, thanks are due to Carers UK—of which I declare an interest as a vice-president—and to Emily Holzhausen and Chloe Wright for their skill, experience and indefatigable dedication to achieving equal rights for parent carers. We have heard a great deal in your Lordships’ House recently about campaigning charities, and I offer this as a perfect example of how an experienced and respected campaigning charity can influence policy change in a way which will benefit thousands of dedicated people for many years to come.

I congratulate the Government and have great pleasure in supporting the amendment.

Photo of Baroness Tyler of Enfield Baroness Tyler of Enfield Liberal Democrat 5:30 pm, 5th February 2014

I associate myself with the eloquent remarks of someone whom I consider to be very much my noble friend, the noble Baroness, Lady Pitkeathley.

Having been involved in the discussions as we have gone through the various stages of this Bill, I am extremely pleased with where we have come out, which is a far more consistent package of rights to assessment and support for parent carers. They will now be on a level playing field with young carers and carers of adults. The two Bills together, this Bill and the Care Bill, will make a huge difference to carers. In this amendment, we are thinking particularly of parent carers and the important role that they play.

We are hugely in the debt of carers as a whole in this country for their very hard and self-sacrificing work, and I am absolutely delighted that legislation is now almost on the statute book which recognises that. I pay tribute to the Minister and his officials for listening and responding, and for working so hard to get us to where we are.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, as one who has been part of the process of this Bill almost from day one and who has watched the amazing progress that has been made, I want to thank the Minister for two things. The first, which has already been discussed, is the ability to provide education facilities for young offenders within institutions, which is a major step forward; the other is this amendment.

Parent carers should of course have the same consideration as other carers. To see parent carers of disabled children and their general well-being now being considered on the same basis is a huge tribute to the Minister and his team, who we have seen so effectively listen and respond to so many of these amendments. Even though I happened to be the mover of one amendment which did not get quite as far as I wanted it to, I share every bit of the appreciation for the work that has gone on behind the scenes as well as on the Front Benches. I thank everybody involved.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I want to speak briefly to say two things. The first is that I understood some of the early concerns about ensuring that all children in need receive equal attention and about the difficulties when one group might find themselves with greater attention. I understand where the noble Lord was coming from in trying to think through that issue, but in our discussions it was quite clear—I think he understood—that, if you work with these as a family, you are not actually giving more attention. If the assessment can be done as a family, then it works as a holistic measure. Secondly, I want to pay tribute to the noble Baroness, Lady Pitkeathley. Without her indefatigable work for carers, we probably would not be where we are.

Photo of Lord Nash Lord Nash The Parliamentary Under-Secretary of State for Education

My Lords, I thank the noble Baroness, Lady Pitkeathley, for welcoming this amendment and echo what the noble Baroness, Lady Howarth, has just said about her tireless efforts in this area. It is entirely down to her that we are where we are. I would also like to thank her for her comments about repentance and my noble friend Lady Tyler and the noble Baronesses, Lady Howe and Lady Howarth, for their words.

As I said previously, we cannot underestimate the contribution that parent carers of disabled children make. It is right that we recognise the particular challenges that they face in supporting their families. I am very pleased that we are able to bring parent carers of disabled children into the Children and Families Bill today.

Amendment 42 agreed.

Amendment 43

Moved by Lord Nash

43: After Clause 89, insert the following new Clause—

“Arrangements for living with former foster parents after reaching adulthood

(1) The Children Act 1989 is amended as follows.

(2) After section 23C (continuing functions in respect of former relevant children) insert—

“23CZA Arrangements for certain former relevant children to continue to live with former foster parents

(1) Each local authority in England have the duties provided for in subsection (3) in relation to a staying put arrangement.

(2) A “staying put arrangement” is an arrangement under which—

(a) a person who is a former relevant child by virtue of section 23C(1)(b), and

(b) a person (a “former foster parent”) who was the former relevant child’s local authority foster parent immediately before the former relevant child ceased to be looked after by the local authority, continue to live together after the former relevant child has ceased to be looked after.

(3) It is the duty of the local authority (in discharging the duties in section 23C(3) and by other means)—

(a) to monitor the staying put arrangement, and

(b) to provide advice, assistance and support to the former relevant child and the former foster parent with a view to maintaining the staying put arrangement.

(4) Support provided to the former foster parent under subsection (3)(b) must include financial support.

(5) Subsection (3)(b) does not apply if the local authority consider that the staying put arrangement is not consistent with the welfare of the former relevant child.

(6) The duties set out in subsection (3) subsist until the former relevant child reaches the age of 21.”

(3) In Part 2 of Schedule 2 (local authority support for looked after children) after paragraph 19B (preparation for ceasing to be looked after) insert—

“Preparation for ceasing to be looked after: staying put arrangements

19BA (1) This paragraph applies in relation to an eligible child (within the meaning of paragraph 19B) who has been placed by a local authority in England with a local authority foster parent.

(2) When carrying out the assessment of the child’s needs in accordance with paragraph 19B(4), the local authority must determine whether it would be appropriate to provide advice, assistance and support under this Act in order to facilitate a staying put arrangement, and with a view to maintaining such an arrangement, after the local authority cease to look after him or her.

(3) The local authority must provide advice, assistance and support under this Act in order to facilitate a staying put arrangement if—

(a) the local authority determine under sub-paragraph (2) that it would be appropriate to do so, and

(b) the eligible child and the local authority foster parent wish to make a staying put arrangement.

(4) In this paragraph, “staying put arrangement” has the meaning given by section 23CZA.””

Photo of Lord Nash Lord Nash The Parliamentary Under-Secretary of State for Education

My Lords, I thank the noble Earl, Lord Listowel, and the noble and learned Baroness, Lady Butler-Sloss, for the way in which they have brought this matter to the attention of the House. I also pay tribute to the late Paul Goggins, the MP for Wythenshawe and Sale East, who sadly passed away on 30 December. He was a champion for children in care and I know worked closely with the noble Earl, Lord Listowel, on a range of issues including promoting staying-put arrangements.

The noble Earl and the noble and learned Baroness made a compelling case for enabling young people to remain with their former foster carers once they turn 18 where this is what they and their foster carers agree they want.

With this year’s figures showing only a slight improvement in the numbers who have been able to stay in such arrangements, we have agreed that more action is now required. So I am delighted to be putting forward a government amendment that addresses this extremely important matter. We have consulted on our new clause with a range of voluntary organisations, including the Fostering Network, Barnardo’s and the Who Cares? Trust. I am pleased to say that they have all fully supported its wording.

Proposed new Sections 1 to 6 deal with what constitutes a staying-put arrangement, the duties placed on local authorities for the duration of the arrangement and the conditions that underpin the support of the local authority. The new clause says that a staying-put arrangement is one where the young person is someone who was in care immediately prior to their 18th birthday as an eligible child, and continues to reside with their former foster carer once they turn 18. So long as the arrangement is consistent with the welfare of the young person, the local authority will be required to provide advice, assistance and support to them and their former foster parent to support the maintenance of the arrangement. It would also be required to monitor the arrangement.

Proposed new Section 23CZA(4) explicitly says that the support provided to the former foster carer must include financial support. This is a crucial element of the new duty. These duties will continue until the former relevant child reaches the age of 21 unless either they or their former foster parent decides to end the arrangement sooner.

Local authorities are already under a duty to assess the needs of eligible looked-after children and devise a pathway plan for their transition into adulthood. The assessment process usually starts around the time of the child’s 16th birthday. The second part of the clause places a duty on local authorities to determine, at this early assessment stage, the appropriateness of working towards facilitating a future staying-put arrangement.

We will also issue statutory guidance which underpins the new duty. We have published a draft of this guidance on our website and sent it to noble Lords. We have been consulting voluntary sector organisations about the wording of the guidance and will continue to do so over the coming weeks.

The guidance sets out more detail about the types of support local authorities will be expected to provide. It also sets out how providing staying-put arrangements fits within the wider statutory duties to support young people make the transition to adulthood.

I would welcome comments from Peers in the next couple of weeks on the wording of the guidance. I hope that your Lordships agree that the amendment is a hugely positive step for children in foster care, I urge noble Lords to support it and I beg to move.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I am grateful to the Minister for bringing forward this amendment and welcome it most wholeheartedly. I am grateful for his kind words. As he says, the amendment will make a huge difference to the lives of hundreds of young people leaving care each year. It has been described as the most important change for young people in care for a generation.

If our children or grandchildren were pushed out of their home at the age of 18, we would be very troubled and do everything in our power to change that. Your Lordships have done just that with this amendment. Just consider the difference that this will make for young women. We know that many women leaving care are prey to sexual exploitation. They are more likely to have pregnancies as teenagers and more likely to have their own children taken into care. It is highly arguable that a contributing factor is their poor relationship with their father. I was speaking earlier today to a woman who lost her father at the age of 14, and the traumatic effect that had on her life impressed that on me once more.

It has been encouraging, during the Bill’s process, to meet young women lobbying me with their male foster carers, looking to continue that healthy relationship with an interested male carer. I am convinced that for many of these young women, the opportunity to have a continuing relationship with a man interested in their success and welfare will have a very beneficial impact on their self-esteem and their future choice of men. I was very pleased to hear my noble and learned friend Lady Butler-Sloss talk about the charity, Families Need Fathers, and I certainly support what she said.

I thank the Minister. He has bent over backwards to listen to my concerns, as I know that he has to many of your Lordships, and he has acted on them. I remember him warning me at our first discussion that there was no money left to fund changes to the law. It is to the Government’s great credit that they have gathered together the £40 million necessary to fund staying put. If I may say so, I hope that the Minister will enjoy reflecting with his family on the difference that he has made to the lives of young people leaving care. I know that his wife already does much important work for young people.

I am also most grateful to the children’s Minister, Edward Timpson MP, for his concern to see this change and to the Secretary of State, the right honourable Michael Gove, for agreeing it and for finding the money to fund it.

I hope that I may extend a few further notes of appreciation to those who have been involved. I am grateful to the Opposition for their support for the amendment, and particularly to the noble Baroness, Lady Hughes, for her enthusiastic support and for setting up the staying-put pilots which provided the essential evidence in making the case for that change. I am grateful to the officials, who worked so hard to make this possible, crunched the numbers on the costs and produced the helpful draft guidance, which I welcome, in time for Third Reading. I am grateful to my colleagues, the noble Baronesses, Lady Perry and Lady Massey, my noble friend Lady Howarth, my noble and learned friend Lady Butler-Sloss, and the noble Lord, Lord Storey, for their advice and support. I am grateful to all those who spoke with such unanimity and strength in Committee—albeit, understandably, occasionally flagging up the caveat of cost. That was extremely helpful.

I am also most grateful to the late and much lamented Paul Goggins MP—I was pleased to hear the Minister’s words of tribute to him and his work. He tabled the staying-put amendment in the Commons and lobbied the Speaker there hard and successfully to have it debated. He gave such strong encouragement to me on the two occasions we met to discuss the amendment. He was a remarkable and lovely man, and it was a privilege to have the opportunity to work with him.

I am grateful to Ann Coffey MP, who spoke to the amendment in the Commons and gave much appreciated later support. I am also grateful to David Simmonds, lead councillor for the Local Government Association on child welfare, for meeting me to discuss the matter and clearly doing such a successful job in lobbying the Government for proper funding of staying put, and to Craig Whittaker MP, chair of the All-Party Parliamentary Group for Looked after Children and Care Leavers, for his advice and support.

I am grateful to the coalition of charities which made this possible, including Barnardo’s, the NSPCC and the Who Cares? Trust, and most especially to Robert Tapsfield, chief executive of the Fostering Network, who led the charge. The help offered by his officer, Vicki Swain, was faultless.

I hope that one day soon we will be looking at extending staying put until age 25—the noble Baroness, Lady Morgan of Drefelin, made a powerful case for this in Committee—and to young people in children’s homes. However, today is the time to celebrate the immensely welcome initiative from the Government.

Staying put is a revolution and a landmark. The Government are doing so much good work for children in care, if I may be permitted to say so, and I salute them for it.

Photo of Baroness Hughes of Stretford Baroness Hughes of Stretford Shadow Spokesperson (Education) 5:45 pm, 5th February 2014

My Lords, I thank the noble Earl, Lord Listowel, for agreeing to lead on this issue from the Cross Benches. He has been exemplary in the way that he has taken this forward once the issue arrived in this House. I also thank him and the Minister for their recognition of my very good friend Paul Goggins, who is a great loss to the other place and particularly to the cause of improving the lives of children in care.

I am also grateful to my colleagues at the other end because it was very important for us to get cross-party agreement from the two main parties, the Conservative Party and the Labour Party, to the spending commitment involved here. I am pleased that we were able to get that, so that had the Government not agreed to this today we could have given the assurance that we would want to implement it. As the noble Earl, Lord Listowel, says, these amendments extend to a national provision the pilots initiated under the previous Labour Government. I am very pleased that we are able to do that because it will make a huge difference to a great many young people.

I have read the draft guidance and very much welcome the emphasis, which the Minister referred to, on the financial support that local authorities must consider in staying-put arrangements. However, I would also reflect on the fact that the references to any tax and benefit implications for the foster families perhaps need to be strengthened. Local authorities really need to help foster carers unravel any tax and benefit implications of a staying-put arrangement, particularly when they get financial support. The key will be in getting local authorities to implement this fully. Perhaps the Minister could comment on how the Government intend to monitor what is happening so as to know how many young people are being offered, and are taking up, the possibility of a staying-put arrangement and how well those are going.

This is the last time in what has been a very long Bill that I will be on my feet this afternoon. I was reminded earlier that it was July when we had Second Reading. I would like a moment on behalf of myself and my noble friends Lady Jones, Lady Morgan and Lord Stevenson, to make some thank yous. What is remarkable is the number of very substantial improvements made to the Bill during its consideration in this House, which has shown the House of Lords at its best. Despite the fact that many of the changes which we have agreed here had been proposed in the other place and rejected, the willingness of many Members across the House to work together in common cause on key issues has dramatically improved the original Bill, as we received it. On adoption, family justice and special educational needs there are now significant changes which are very welcome. There are new areas of policy as well, as we have been discussing this afternoon, on parent carers, the protection of children from smoking and so on.

There were some lost opportunities for which there was substantial but, in the end, insufficient support to carry the day, particularly on compulsory SRE and online child protection measures. I have no doubt that we will return to those because I know that the noble Baroness, Lady Howe, is not going to give up her indefatigable campaign of online child protection issues. I look forward to supporting her in other opportunities.

While at times the pace of our considerations no doubt caused some concern for the Government, this was in no small measure due to the detailed scrutiny which Members were prepared to give to the Bill, with the time to discuss it and flesh the issues out. We were aided substantially by a wide range of organisations outside the House willing to help us to make the most of the opportunity that the Bill provided, and I thank them very much.

I thank all the Ministers and the Bill team for their willingness to meet us and to listen. They gave very generously of their time and I very much appreciate that. We had some good discussions, and obviously many of those bore fruit.

I also want to mention the Hansard recorders in Grand Committee. We stretched the normal time limits on a number of occasions and I was very conscious of that. I want to put on record that we appreciated their help.

I also thank Sophie Davis, who helps the opposition team in our office. She is terribly well organised, and I am sure that noble Lords who have had e-mails from her and the opportunity to speak to her have found that she is unfailingly courteous and very measured. She has been a great help.

Lastly, I thank the Ministers here today, the noble Baroness, Lady Northover, and the noble Lord, Lord Nash, for their constructive approach and their willingness to bring forward changes that we have discussed. I think that many of us will have heard with regrets the noble Lord’s announcement on Report that he has no intention of remaining a Minister after the general election. One may think that after making such progress with this Bill, it would be rather a waste if this were to be both the first and the last Bill that he took through this House. I hope that he reconsiders. In any event, whatever he does, we wish him well. I thank both Ministers again.

Photo of Lord Nash Lord Nash The Parliamentary Under-Secretary of State for Education

I thank the noble Baroness, Lady Hughes, for her kind remarks. It has been a pleasure working with her and the noble Baroness, Lady Jones, over the past few months. I have never had so many compliments—certainly not so many back-handed compliments—quite so quickly. The noble Baroness might be interested to know that the draft of the few words that I might say after the final amendment said, “This is my first and last Bill”, and I found myself taking out the words “and last”, so you never know.

I echo the noble Baroness’s remarks about the noble Earl, Lord Listowel; it is in fact entirely thanks to his relentless determination on this issue that we have arrived at the point where we have today with the staying-put arrangements. I thank him for his time in meeting me and officials to discuss the matter and the clause itself. As I mentioned earlier, I would welcome comments from Peers on the draft guidance in the coming weeks, and I will take back the noble Baroness’s comments that she made today.

On the question of monitoring intimidation, the noble Baroness, Lady Howarth, made a comment about implementation. I have been saying in the department for some time now that I hope we are not just going to pass the Bill and retire to the sidelines; it is all about making sure that it happens. I just had a word with my honourable friend the Minister responsible for this field and told him that the noble Baroness had made the point again about implementation, and he said that perhaps she would like to come to our first implementation meeting. It is not my brief but I shall be there, and I intend to be at as many as I can get to. As everyone has said, it is about changing practice and ensuring that it actually happens.

On the point about monitoring made by the noble Baroness, Lady Hughes, we will be monitoring the statistical returns from local authorities to assess the take-up of staying put. Also, the revised Ofsted inspection framework includes a new sub-judgment on care leavers that has a focus on accommodation, including staying put. Based on these sources of information, we will be able to identify whether any local authority is not fulfilling its duties, and will not hesitate to challenge those that are not.

We are continuing to work with sector organisations on the guidance to ensure that it supports the effective implementation of this important new duty. We are committed to doing more to support care leavers, and I believe that the proposed new clause is a crucial step forward. I hope that noble Lords will support it.

Amendment 43 agreed.

Amendment 44

Moved by Lord Ramsbotham

44: After Clause 101, insert the following new Clause—

“Use of the Human Rights Act in legal proceedings

After section 2F of the Children Act 2004 (as inserted by section 101) insert—

“2G Use of the Human Rights Act in legal proceedings

The Commissioner may, in the course of legal proceedings for judicial review which it institutes (or in which it intervenes), rely on section 7(1)(b) of the Human Rights Act 1998 (c. 42) (breach of Convention rights); and for that purpose—

(a) the Commissioner need not be a victim or potential victim of the unlawful act to which the proceedings relate,

(b) the Commissioner may act only if there is or would be one or more victims of the unlawful act,

(c) section 7(3) and (4) of that Act shall not apply, and

(d) no award of damages may be made to the Commissioner (whether or not the exception in section 8(3) of that Act applies); and an expression used in this subsection and in section 7 of the Human Rights Act 1998 has the same meaning in this subsection as in that section.””

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I am conscious that my amendment is something of an oddity today because it is the only non-government amendment on the list. I raise it because I still have hopes that it might become a government amendment. It is an amplification of a point that I raised on Report, and about which I asked a supplementary question of the Minister.

The issue concerns the Children’s Commissioner and the request that he or she would share equal footing with the equality and human rights commissioner in being able to bring cases under the Human Rights Act. On Report, the Minister said that initiating and intervening in legal proceedings was, in the Government’s view, implicit within the commissioner’s primary function; I certainly took that at face value. Following on, he said that the commissioner would have sufficient interest in a case, because of his or her statutory role to promote and protect children’s rights, to satisfy any judge who might question the right of the commissioner to intervene. He emphasised that the Government did not wish to put into the Bill anything to do with such a right, but assured me in answer to a supplementary question that incoming commissioners would be briefed on their powers in bringing cases before courts.

Unfortunately, about half an hour before the Public Bill Office closed for business last night, the Children’s Rights Alliance for England contacted me, having consulted legally—unfortunately, after the good meeting I had earlier had with Ministers about the Bill. The alliance pointed out that, currently, the Children’s Commissioner is actually prohibited from bringing legal proceedings under the Human Rights Act because to do so you have to be a victim. The Children’s Commissioner does not qualify as a victim in a case.

This was got around for the equality and human rights commissioner through a clause in the Equality Act 2006, which made an amendment to Section 7 of the Human Rights Act, allowing the equality and human rights commissioner to bring legal proceedings. All I am seeking, as I did on Report, is to acknowledge the Minister saying that he agreed that the two commissioners should have equal rights; and that amendments, instead of being made to the Equality Act, should be made to this Bill and to the Children Act 2004, to allow the Children’s Commissioner to bring things forward without running into the risk of being prohibited to do so by something which I suspect was not meant by the Government or anyone else. That is why I move the amendment. I apologise for doing so at this late hour, but we have made so much progress in the Bill that I hope that the Minister, in the spirit in which he has tackled everything else, will feel able to reconsider my original request.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I support everything that my noble friend has said. I very much hope that the Minister will find a way to make this a possibility.

Photo of Lord Nash Lord Nash The Parliamentary Under-Secretary of State for Education

I am grateful to the noble Lord, Lord Ramsbotham, for tabling the amendment, and congratulate him on the speed with which he grasped the moment to do so. This offers an opportunity to provide further clarity on the matter.

In a nutshell, the amendment would mean that, when seeking to bring a case under the Human Rights Act, the commissioner would be exempt from the requirement that he or she must be the victim in the case. This would replicate a provision in the legislative framework of the Equality and Human Rights

Commission, and would in effect put the Children’s Commissioner on the same footing as the EHRC. I have several reservations in respect of the proposed amendment. I am happy to discuss the point further with the noble Lord, but I must state those reservations now.

First, I do not accept that the Children’s Commissioner and the equality and human rights commissioner have the same role. As I have indicated at various stages during the passage of the Bill, we see the role of the Children’s Commissioner as being largely strategic, whereas the EHRC has oversight of both strategic human rights issues and individual casework. The amendment would give the commissioner a power to pursue individual cases under the Human Rights Act, which would increase the risk that the OCC loses its strategic focus. Noble Lords will appreciate that we have tried to avoid that.

Secondly, we believe that it is important to avoid an unnecessary and unhelpful duplication of functions between the Children’s Commissioner and the Equality and Human Rights Commission. The EHRC has a clear remit in relation to the HRA and we do not think it is necessary or appropriate also to give the OCC an explicit power in relation to challenging violations of individuals’ ECHR rights. The EHRC’s role is not age-limited, and it is therefore open to it to bring a case under the Human Rights Act in respect of a child under the age of 18, in just the same way as it would be able to for an adult.

There is also nothing to prevent the Children’s Commissioner from bringing children’s rights issues to the attention of the EHRC and assisting it in any legal challenge it brings in relation to children’s rights, whether it is under the Human Rights Act or otherwise. The EHRC’s all-age focus is illustrated by the fact that its strategic litigation priorities for 2012-13 included a number of priorities in relation to education matters.

John Dunford recognised the possibilities for joint working between the OCC and the EHRC in his 2010 report and encouraged both organisations to work more closely together in this regard. This approach is reinforced through the power at Section 18 of the Equality Act 2006, which requires the EHRC to,

“co-operate with persons interested in human rights within the United Kingdom or elsewhere”.

Thirdly, we all know how quickly litigation can swallow up resources. While I would expect any commissioner to use his or her powers to instigate legal proceedings responsibly and sparingly, there can be no guarantees that this would be the case in practice.

To accept the amendment would, in my view, be inconsistent with other aspects of the OCC’s legal framework. For example, it is hard to see how giving the Children’s Commissioner a free rein to take up legal cases on behalf of individual children is consistent with the ongoing provision which precludes the commissioner from investigating the case of an individual child in the discharge of the primary function.

I can, however, repeat the reassurances I gave when we last debated the OCC clauses. First, in the Government’s view, initiating or intervening in legal proceedings more generally is implicit within the commissioner’s primary function. It is therefore open to the commissioner to bring legal proceedings not based on the HRA, provided that the judge in the case concerned is satisfied that the commissioner has a “sufficient interest” in the matter. Secondly, I also gave an assurance that the Government would explain this position to an incoming Children’s Commissioner when they take on the role, and I am happy to give that assurance again today. I hope that that is helpful.

I hope that, having heard the arguments, the noble Lord will be prepared to withdraw his amendment, and I urge him to do so. As I said, I am happy to discuss the matter with him further.

Before I sit down I will take the opportunity on this last amendment to say thank you to your Lordships’ House for the intense scrutiny which the Bill has had here in the Chamber, in Grand Committee and in the many meetings that we have had outside the Chamber. Nearly 50 years ago I wrote my university entrance paper on your Lordships’ House. I have long since forgotten what I wrote, and fortunately the absence of technology in those days means that my answer does not survive. However, I would now be able to answer the question with far greater clarity. Having seen the forensic way in which noble Lords have scrutinised this Bill and the way that they have used their expertise in many areas to home in on individual clauses, I would now say that no one could question the worth and value of this House. The level of scrutiny has been exhausting—I am sorry, exhaustive—and at times exhausting.

I thank all noble Lords across the House for their co-operation and tireless efforts, and, as a number of noble Lords have said, for the consensual approach—I accept that in some cases it was eventually consensual—that noble Lords on all sides of the House took to ensure that the Bill is the best that it can be. It came to this House as a very good Bill and it leaves it as an excellent one. It will greatly benefit many children, young people and families in this country.

During the Bill’s passage through this House the Government tabled or accepted 177 amendments to the Bill. In total, noble Lords considered 649 amendments to the Bill. The formal consultation on the code of practice was conducted while the Bill was in the Lords. The comments and contributions from noble Lords will lead to significant improvements in how the code is drafted. For example, a big change is that it will now cover support for disabled children in more detail, following amendments to the Bill to extend certain clauses to include disabled children without SEN.

I must apologise for the volume of correspondence: we have sent noble Lords 54 letters, policy statements and sets of regulations, but I hope that was helpful. A whole new part of the Bill—Part 5, “Welfare of Children”—has been created. This includes provision on child performance; protecting children from the harms of tobacco; young carers; parent carers; a new duty on schools to support pupils with medical conditions; local authority intervention; measures to improve the quality of children’s homes; and the provision of free school lunches.

I should like to thank my noble friends on the ministerial Benches. This is the first piece of legislation—this is the bit I took out—that I have taken through the House and I greatly appreciate the support and advice I have received from my ministerial colleagues over the past few months. Of course, I must thank my right honourable friend the Secretary of State for Education and my honourable friend the Minister for Children and Families, both of whom are passionately committed to the causes of all children and young people. I also thank the many organisations that have engaged with us on the Bill. They made a vital contribution and I hope they will continue to engage with the Department as we look to implement the important reforms set out in the Bill.

Finally, I pay tribute to the Bill team, brilliantly led by Jenny Preece, and the other officials who have worked on this Bill so hard and with considerable composure and good humour, and who very sensibly have at no stage ever let me out of their sight. The progress we have made in this place is in very large part due to them, and I thank them most deeply. I know that noble Lords—as many of them have already said—appreciate the great work that they have done. It has been a true tribute to the high standards of the Civil Service and I know that all noble Lords have been incredibly impressed by their professionalism and no-stone-unturned approach. There will be an opportunity for noble Lords to express their gratitude to them personally in the not too distant future—as I know many wish to do—and I hope as many noble Lords as can will attend. I thank you.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 6:00 pm, 5th February 2014

My Lords, I thank the Minister for the care and attention he has given to his reply to my amendment. All of us in this House were enlightened by what he had to say and I am gratified to hear his confirmation that the Dunford report’s proposal for close working between the equality and human rights commissioner and the Children’s Commissioner is something that will be encouraged. If that happens, and they work together, the actual office of Children’s Commissioner is bound to be strengthened. I am sure that, when noble Lords look at the Hansard of the debate and see the care and content of the Minister’s summing up, they will reflect that we have indeed been fortunate throughout this Bill in having such care and attention paid to all the points that we have raised. That has been one of the great pleasures of it.

Having already thanked the Minister and the Bill team, I would like to mention something that I forgot: I thank him for the frequent letters and contacts, which were enormously helpful and made the lives of those who had no research support much easier. As the Minister said, there will be a lot of people who will look back on this Bill—particularly children and young people in the future—with greater opportunity than there was previously. That has been due to the work of an awful lot of people. It has been a great pleasure and privilege to be one of those involved. I beg leave to withdraw my amendment.

Amendment 44 withdrawn.

Clause 126: Orders and regulations

Amendment 45

Moved by Earl Howe

45: Clause 126, page 134, line 24, at end insert—

“(ca) regulations under section “(Prohibition of sale of nicotine products to persons under 18) or (Amendments consequential on section (Prohibition of sale of nicotine products to persons under 18)),”

Amendment 45 agreed.

Bill passed and returned to the Commons with amendments.