House Of Lords
Monday, 21st July, 1986.
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Leicester.
Electronics: Gcse Examinations
My Lords, I beg leave to ask the Question standing in my name on the Order Paper.The Question was as follows: To ask Her Majesty's Government what plans exist to introduce a new examination in electronics in addition to CSE or GCE examinations.
My Lords, all five GCSE Examining Groups in England and Wales intend to offer GCSE syllabuses in electronics from this September. In addition, some GCE boards plan to introduce syllabuses in electronics at Advanced Supplementary level in September 1987.
My Lords, is the noble Earl aware that that is indeed a very welcome reply to a very important Question? Is he further aware that people in education, in industry and in commerce take the view that the special creation that he has mentioned in the field of electronics will be very welcome, because of its close association with computers and advanced technology? 1 am grateful to the noble Earl for his reply.
My Lords, I am grateful to the noble Lord for his supplementary answer.
Prisons: Building Programme
My Lords, I beg leave to ask the Question standing in my name on the Order Paper.The Question was as follows: To ask Her Majesty's Government whether they are satisfied that the prison building programme is on schedule, and whether the events of April/May 1986 have caused any variations to be made to that programme.
My Lords, the new prison building programme is unaffected by the recent prison disturbances, and remains broadly on target. Some slippage in the programme of prisons under construc-tion has, however, resulted from the severe winter and poor early summer weather. High priority will be given to measures to make good the lost time wherever possible. The programme of capital and maintenance work at existing establishments has been affected to some extent by the need to divert resources to repair the damage to the prison estate caused by the disturbances.
My Lords, I am grateful to the Minister for that reply. Can he confirm that although, when the full programme is completed in 1992, it will add a further 8,000 places in prisons, it will do no more than match the current needs? Can we be assured that the new prison capital expenditure does not starve the work that is required—and not merely for refurbishing? For instance, can the noble Lord confirm that the capital required to bring Lindholme in Yorkshire, which I recently visited, up to date will be found as well.
My Lords, certainly the option remains to expand Lindholme as necessary. I could provide more details for the noble Lord, but we have to see how it goes. As regards matching places with the prison population, I think the noble Lord is aware that we are broadly on target to do that. Precisely when it will happen depends very much on the statistical question of how the prison population grows. But by the early part of the next decade all should be well.
My Lords, we heard on Friday that the Government are spending a great deal of money on Wormwood Scrubs. I asked the question—and I repeat it again—is it not time the Government published a list showing exactly what they are doing to improve prisons in this country, particularly following the Select Committee's report that was published last week by colleagues in the other House? They issued a most damning report, saying what fearful conditions there are with no indication that anything is being done. Is it not about time the Government published a list showing what they are doing and what they are spending?
My Lords, a very great deal is being done. Sixteen new prisons are being built, some 10,000 or so places have been created from the conversion of existing facilities, and a great deal has been done to improve sanitation. If the noble Lord would like it, I can certainly arrange for him to have full details of that work and for that information to be made available in the Library.
My Lords, it would not be a bad idea to let the Select Committee have it too.
My Lords, is the noble Lord aware that Winson Green is a very old Victorian prison in Birmingham and that last week there were 1,000 prisoners there, although it should hold only 540? Is Winson Green prison on the new prison lists?
My Lords, Winson Green is not a new prison; it has been there for many years. We are building a further 16 prisons, two more were opened last year, and we hope to take forward another two. I can certainly let the noble Baroness have details about Winson Green, but I am afraid that her question goes rather wider than the wide Question on the Order Paper.
My Lords, I did not say that Winson Green was a new prison. I asked whether it would be on the new prison list, because it is a very old prison, it is very overcrowded, and it is a holding prison for magistrates' courts in the whole of the area.
My Lords, it is a Victorian prison. Certainly, work is being done on it. I cannot tell the noble Baroness off the top of my head precisely what work is being done or the timetable for its completion, but I shall certainly let her know.
My Lords, is it envisaged that when the cycle of new prisons has been completed, any of the very old ones will be closed?
My Lords, certainly that is an option that must remain open. The projections for the prison population are, as my noble friend knows, substantial, and I do not foresee the time when it will be possible to close more than the odd one, but I should like to leave that question open.
My Lords, can the Minister assure the House that measures will be taken to ensure that there is sufficient accommodation for those committed to youth custody, given the fact that a number of young offenders are being housed in detention centres because of lack of accommodation?
My Lords, under the prison building programme there are two new youth custody centres being built. In addition, as the noble Lord will be aware, we set out in the Criminal Justice White Paper the question of perhaps using some detention centres for shorter youth custody centres. That is a live issue. But the detention centre system remains under-used whereas the youth custody system remains over-used.
My Lords, reverting to the report of the Select Committee, which was mentioned by my noble friend Lord Mellish, can the Minister indicate when the entirely sub-human conditions of sanitation in our prisons will cease? Is there a target date fixed, so far as the Home Office is concerned, so that at least by that date our prisons will deserve the term "civilised"?
My Lords, it is not true to suggest that all prison places are, as the noble Lord puts it, sub-human. Certain of them are far from satisfactory, but the report to which the noble Lord referred acknowledged (towards the end) that there had been some exaggerated comment about the state of some parts of the prison system and indeed about the medical side.All new establishments provide access to sanitary facilities at night. The schemes currently in progress or planned at existing establishments will provide about 10,000 more places with integral sanitation. At present about 19,400 places, or just under half of the total certified normal accommodation, have access to sanitary facilities. By 1991 this will have risen to 28,300 out of a total of 47,700 places; and by 1999 it is expected that the figure will be about 37,800, or about 70 per cent. of the projected total of 53,400 places.
My Lords, is the noble Lord not aware that 16 new prisons is quite a lot of prisons? What constitutes the demand for increasing prison accommodation?
My Lords, while the courts sentence the Government have a duty to provide the necessary places. Of course it is a pity that successive governments, including the government of the party opposite when they were in power, did not see fit to conduct a building campaign in the way that it has been operated since 1979.
My Lords, will the noble Lord not agree that he has possibly not made as much as he might of the very good work being done from Winson Green Prison? Prisoners from there have been released all over the area to do all sorts of valuable work, including, to my knowledge, work on the inland waterways. This work, and all the other work that is being done, is enormously valuable not only to the area but also to the prisoners themselves. Will the noble Lord agree that the real trouble with this Government is that they are not blowing their own trumpet enough? They have a great many things they could talk about, but they simply do not. It is this that one rather despairs of. One feels that they do not have the feel somehow.
My Lords, I can assure the noble Viscount that I never lose any opportunity (and nor do my honourable and right honourable friends in another place) to describe precisely what is being done under the prison building programme and the changes that are being made to the existing prison estate. I note what the noble Viscount says about those who leave—I think those are the words he used—Winson Green.
My Lords, will the noble Lord accept agreement from this Bench that the Government lose no opportunity when appropriate to blow their own trumpet? Before the noble Lord makes political points about what the Labour Government did, will he reflect upon the terrific increase in prison occupancy since his own Government took over from the Labour Government? Is not this huge increase responsible for the conditions that I tried to describe earlier?
No, my Lords, I would not say that at all; I would say that it is a long-term problem which has been building up over many years. If the noble Lord looks at a graph of crime set against time, he will see that there has been a more or less constant trend since the middle of the 1950s.
My Lords, will the Minister accept from me that I acknowledge and appreciate the increase in the capital programme in both improving existing prisons and building new ones? But would it not be fair for the Government to spend a little more time on examining the non-custodial sentence aspect of the current situation? As well as making conditions in prisons better, ought we not to spend at least as much time in trying to avoid sending people to prison at all? Finally, to what extent does consultation take place with, among others, prison officers when new prisons are being designed?
Yes, my Lords, I agree. There is, however, already a wide range of non-custodial sentences, available to the courts, including suspended sentences, fines, probation and community service orders. We have to develop these further as far as we can. There are established arrangements for consultation with the trade unions representing governors and the other prison staff at various points during the briefing and design stages of all projects, and the views of staff are taken fully into account by the design teams.
Charities: Tax Relief On Accumulated Income
My Lords, I beg leave to ask the Question standing in my name on the Order Paper.The Question was as follows: To ask Her Majesty's Government whether, under the new measures announced in the Budget, charities will be able to accumulate income for genuine charitable purposes without loss of tax relief.
My Lords, under the revised proposals announced in another place by my right honourable friend the Chancellor of the Exchequer on 4th June, charities will be able to accumulate income for genuine charitable purposes without loss of tax relief.
My Lords, I thank my noble friend the Minister for that reassuring reply. Now that the anxieties on Clause 29 of the Finance Bill seem to have been allayed, would it be possible for my noble friend the Minister to estimate the expected added cash that will be available to charities as a result of measures in the Budget?
My Lords, it is a difficult estimate to give because it depends very much on the uptake of the various schemes which the Government proposed in the Budget. However, a figure of £120 million has been given as an estimate for next year, and it could possibly be more.
My Lords, while the Minister's statement today is very satisfactory, is it not disquieting that provisions were included in the Finance Bill as introduced which suggested, to use a kindly word, that those concerned had precious little knowledge of how charities actually work? My understanding is that the Charity Commission was not consulted; and if that is so, is it not carrying Budget secrecy to absurd lengths when the Government cannot even consult their own experts if they happen not to be in the Treasury?
My Lords, there is always a difficult problem about how much consultation can take place before a Budget, especially when one is trying to bring forward measures to curb abuse. If one consults too widely before announcing measures to curb abuse, obviously the bird is apt to fly from the nest. Fortunately, of course, consultations have taken place since then and now everyone seems to be reasonably happy.
My Lords, in the light of the Question asked by my noble friend Lady Lane-Fox and the fact that donations to charities are rising, may I ask what extra resources are being allocated to the Charity Commission?
My Lords, I cannot give an answer to that. The Charity Commission is a different question to that on the Order Paper, which concerns the Inland Revenue and tax relief.
My Lords, is the noble Lord aware that the Chancellor has given an encouraging start to those charities who spend a great deal of money on goods which are covered by VAT and, therefore, have a very large VAT bill? Does the noble Lord not agree that for those charities which are heavily involved in making purchases on which they have to pay VAT, although the relief that has been given is a good start, it is worth pursuing and ought to be increased?
My Lords, that question goes rather wider than the Question on the Order Paper, but I should point out that the Budget gave a further estimated £10 million VAT relief to charities.
My Lords, what steps are the Government taking to make certain charities aware of the new measures?
My Lords, I very much hope that two leaflets are being published today—I have not received confimation whether they have yet gone out—explaining tax relief which is available to individuals and businesses. I hope that charities will collect the leaflets and use them to their advantage.
My Lords, is the noble Lord aware that a more detailed and more explanatory Inland Revenue leaflet giving full particulars of the concession granted by the Chancellor would be very much appreciated? Is the noble Lord further aware that we on this side of the House certainly appreciate this degree of flexibility by the Chancellor of the Exchequer in considering representations made to him following the Budget, and that all we really want is a far greater degree of flexibility in the broad general public interest as well?
My Lords, as regards the noble Lord's second point, he has his views on that. On his first point regarding the employee payroll scheme, the Inland Revenue has published a prospectus for that; it did so, I believe, on 26th June. That gives the suggestions for the scheme, and there will be a further draft to the detailed rules which will be published shortly.
My Lords, I should like to revert to my noble friend's reply to my first supplementary queston. Is he aware that what is proposed will considerably improve the clout of charities in carrying out the programme of work which, in most instances, is excellent, and that his brochure should be of great help to them in making the most use of the new measures that have been taken?
My Lords, I am grateful to my noble friend for that supplementary question, and I entirely agree with her.
My Lords, I beg leave to ask a Question not unlike that standing in my name on the Order Paper. A vital word has been omitted from the Order Paper—not, I think, by me. My Question should relate not to 16,000 motorists, but to 16,000 innocent motorists.The Question was as follows: To ask Her Majesty's Government what action they propose to take drastically to reduce the number of innocent motorists (16,000) who are arrested annually on suspicion of being drunk.
My Lords, the Government have no proposals to amend the law. The police have powers to enforce the law, and the use made of these powers is a matter for chief officers of police. The roadside screening devices are intended solely to allow a constable to decide whether he has reasonable cause to suspect that the level of alcohol in a driver's body exceeds the legal limit and whether the driver may be arrested. As delays between the roadside and evidential test may lead to reductions in a driver's level of alcohol I am satisfied that the devices operate within acceptable tolerances.
My Lords, I thank the noble Lord for that reply, but ought not the preliminary test be to eliminate the innocent and thus protect them from being arrested? Is it not failing to an unacceptable extent to do that?
My Lords, the Government and the police are conscious of the need to minimise the number of people arrested who are subsequently found to be below the limit. It is of course vital, given the number of people killed or injured on our roads as a result of drink-driving, that the police should have the necessary powers to enforce the law. In 1984, 388 people were killed and 19,303 people seriously injured in accidents where a driver was found to be over the legal limit or where he refused a give a sample. Surely the figures speak for themselves.
My Lords, is the Minister aware of a scheme that is working quite satisfactorily, I understand, in the United States, where a person who feels that he may be just on the border line, or just over the limit, can put a coin into a machine and the machine will tell him how he stands?
My Lords, I was not aware of that, but there are, I believe, devices in this country as well which people can use. Nevertheless, the onus is on people not to drink if they are going to drive.
My Lords, how can you tell whether a person is drunk unless there is a test?
I am sorry, my Lords, I did not hear the noble Lord, Lord Mellish.
My Lords, how can you tell whether a person is drunk if he does not have a test?
My Lords, the important thing is for the driver to be able to tell; and he should know that if he has a drink, he should not drive.
My Lords, does not the noble Lord appreciate that while we are greatly concerned with the number of motorists who may be wrongly arrested, we are also concerned with the staggering figure given in the other place in July that one-quarter of all the road fatalities are drink-related? The noble Lord may recall that during consideration of the Transport Bill 1981 we had considerable discussion on the relative balance between evidential breath testing accuracy and the proper need for enforcement. Is not the problem that of education, publicity and enforcement? Have steps been taken recently to get together all the organisations concerned to review the position?
My Lords, I think the noble Lord will agree that his question goes quite wide. Certainly it is important that there should be education. All drivers should surely be aware that drink and driving do not mix. This question relates particularly to the difficulties of those innocent motorists who are arrested. What I have described gives light to the fact, surely, that the number of people who do drink and drive is far too great.
My Lords, does not the Minister agree that most of us in your Lordships' House would prefer that 100 innocent motorists are arrested rather than that one guilty motorist should go free if he was driving while the worse for drink?
My Lords, it is important that the police have accurate devices to measure those motorists whom they believe to have alcohol in their systems when they are stopped. That is the important point. Of course, the devices that are used are those which are being developed and I am sure that they will be worked upon in the future.
My Lords, since I was myself arrested in Birdcage Walk and discharged honourably without a stain on my character on arrival at Rochester Row police station, doubtless the noble Lord will sympathise with my sense of indignation. Can he tell the House what percentage of those convicted is represented by the 16,000 innocents who were arrested without proper cause?
My Lords, I cannot do a quick sum off the top of my head, but I shall certainly let the noble Earl know.
My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lady Trumpington will, with the leave of the House, repeat a Statement that is being made in another place on Supplementary Benefit: Single Payment.
Crown Agents (Amendment) Bill
Read a third time, and passed.
Social Security Bill
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Social Security Bill, has consented to place her prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.Bill read a third time.
Clause 2 [ Appropriate schemes]:
moved Amendment No. 1:
Page 4, line 12, at end insert ("under section 41 of the Solicitors (Scotland) Act 1980").
The noble Baroness said: My Lords, I beg to move Amendment No. 1, and at the same time I should like to speak to Amendments Nos. 3 and 14. Perhaps I should tell your Lordships that there is a printing mistake in Amendment No. 14. Where it says,
"of income support of family credit"
it should read,
"of income support or family credit".
These amendments are required to adapt the Bill to existing Scottish legislation. I beg to move.
On Question, amendment agreed to.
moved Amendment No. 2:
After Clause 7 insert the following new clause:
(".—(l)The Social Security Pensions Act 1975 shall be amended as follows.
(2) In Section 28 the following subsection shall be inserted after subsection (6)—
- "(6A) The Secretary of State may at any time lay before each House—
- (a)a report by the Government Actuary on the additional contracted-out percentages appropriate to schemes the average age of whose members exceeds by a specified amount that assumed for the purposes of determining the contracted-out percentages appropriate in all other cases, and
- (b)the draft of an order providing for such additional contracted-out percentages to apply in any case where this is requested and the request is supported by such evidence as may be prescribed,
- and if the draft is approved by resolution of each House the Secretary of State shall make the order in the form of the draft").
The noble Lord said: My Lords, I beg to move Amendment No. 2. As the House is aware, the Bill provides that an employee may choose to switch from being contracted into the state earnings-related pension scheme or from being a member of a contracted-out occupational scheme to a personal pension scheme. That personal pension scheme would itself be contracted out. The employer and the employee would pay contracted-in rate national insurance contributions and the Department of Health and Social Security would return to the provider of the personal pension scheme an amount equivalent to the rebate given in the case of contracted-out occupational schemes. Thus the minimum contribution which this rebate constitutes is flat rate and takes no account of age.
The personal pension schemes are money purchase schemes in that the ultimate benefit is not defined but the contribution to be made by the employer and the employee is defined. The benefit is the product, whatever it may be, of such contribution. The older an employed person, the more expensive it is to provide a pension. A different annual contribution is necessary at each stage of entering the scheme to provide the same amount of pension.
Furthermore, pensions relating to increments of earnings due to inflation, wage negotiations or promotion become progressively more expensive to fund for a given amount of pension as the employee gets older. But, as we saw, the minimum contribution paid by the Departmemt of Health and Social Security in order to contract out is flat rate. That flat rate contribution paid annually for a young person will provide that person at retirement with more pension than it will a person who enters the personal pension scheme 20 years later shall we say, and the cost to the young person will increase in respect of increments of earnings due to inflation, wage negotiation or promotion.
Thus, it will be attractive to the young person to switch to a personal pension scheme but it will become less attractive as that person gets older. Those involved with occupational pension schemes have been greatly concerned that the consequence of a flat-rate minimum contribution may well be to induce an unduly high proportion of young people to switch from defined benefit occupational schemes to personal pension schemes. If they do so, it is likely that at a later date they may want to move back into the state earnings-related pension scheme when they find that the minimum contributions will not keep up their pensions in line with increased earnings in the personal pension scheme.
This of course would frustrate the Government's aim. Secondly, where younger employees have been induced to leave defined benefit schemes, those schemes will become progressively more expensive to the employers as the average age increases. Employers may well wish to seek to cut their rise in cost by contracting in to SERPS, again frustrating the Government's intention: or there may be a substitution of money purchase occupational schemes for defined benefit schemes, which I do not consider to be a desirable outcome.
In a contracted-out defined benefit scheme, the varying value of the flat-rate rebate has its effect on the cost of the employer averaged between all his employees and not on individual benefits. If many younger members leave the scheme, they deprive the scheme of their favourable rebates and so make the rebate inadequate for the remaining group of members. Those fears have been expressed by bodies such as the Confederation of British Industry, the National Association of Pension Funds and the Nationalised Industries Pensions Group.
In Committee, I moved an amendment which sought to deal with the problem by making the minimum contributions age related. That amendment was defeated and of course I accept that the minimum contributions will not in fact be age related. But the noble Baroness, Lady Trumpington, acknowledged that flat-rate minimum contributions will make personal pensions attractive for the younger person. She argued that nevertheless significant numbers of young people would not be encouraged to switch from an occupational scheme to a personal pension scheme. She said that that would be because employers would not have any obligation to contribute any more than the minimum to personal pension schemes and those switching would have to be prepared to forgo the balance of the employer's contribution. In addition, they would have no statutory right of return to the occupational scheme once they had opted out.
I agree that those are restraining factors, but how powerful they would be we simply do not know. We know that there is inducement to the younger person to switch and we know that there are certain restraining factors, but we do not know whether large numbers in fact would switch.
This amendment is designed to meet that situation. The idea for it comes from the Nationalised Industries Pensions Group. First, the Secretary of State could lay before each House at any time a report from the Government Actuary on the additional contracted-out percentages appropriate where the average age of schemes was in excess of the normal. He could also lay before each House a draft of an order for those additional contracted-out percentages to be applied in any cases where that was requested and supported by the required evidence. In other words, a higher rebate would be paid where the average age of a scheme had risen significantly. That would enable those schemes that were receiving the additional rebate to continue on a contracted-out basis.
Those are long-term powers which would only be used if the confidence of the noble Baroness in the Government should prove misplaced and the fears expressed by so much expert opinion should prove justified. I very much hope that the noble Baroness will accept this amendment, and I beg to move.
My Lords, I shall say only that my noble friends and I completely support this amendment which has been so ably moved by the noble Lord, Lord Banks.
My Lords, we had a very full debate in Committee about whether age relation should be introduced into the structure of national insurance rebates and DHSS contributions for people who contract out of SERPS. At the end of that debate, your Lordships' views were sounded and the voting showed a clear majority in favour of the flat-rate system which the Government, after very careful consideration, have decided to adopt.I do not therefore want to take up a great deal of your Lordships' time by going over all the pros and cons of this matter again. There are of course things to be said in favour of age-relation. The noble Lord has explained some of them today. But there are also grave difficulties with that approach. The administrative complexities it opens up are horrific to contemplate: and there are two things to be said about the dire consequences which the proponents of age-relation claim will follow from a flat-rate system. We are very sceptical indeed whether these dire consequences will materialise. Actuarial predictions, like economic predictions, have a way of being confounded by the behaviour of human beings, who do not all carry pocket calculators and actuarial tables around with them. People are influenced by many factors, not least inertia and caution, in making decisions which profoundly affect their financial affairs. We simply do not believe that a flat-rate system of rebates and contributions is going to tempt significant numbers of young people, who would otherwise not be tempted, to opt out of their established contracted-out occupational schemes, particularly now that the 2 per cent. incentive addition will not be available to them. Those who claim that this is a real threat are discounting not only human nature, but also the employer contributions which people will normally relinquish in making this decision and the fact that they may have no right to return to the employer's scheme when they are older. The noble Lord suggests that younger people who take contracted-out personal pensions will contract back into SERPS when they are older, effectively opting to the financial detriment of the state. Again, although we understand the thinking behind those arguments, we are not convinced that it will be a large enough problem in practice to warrant upsetting the simple structure of rebates and payments which we propose in the Bill. It is a problem that we can look at if and when it actually arises. The contracting-out terms are not set in concrete. The government of the day can always adjust them more or less radically in the light of the circumstances of the day. Furthermore, let us suppose that these dire consequences materialise, as the more pessimistic forecasters tell us they will. As I said in Committee, the government of the day will always be free to alter the future terms of contracting-out to set things on an even keel again. The flat-rate structure of rebates and payments is a move to make pensions more simple and comprehensible to the people whose lives they affect and for that reason alone deserves a proper trial and the support and encouragement of your Lordships. It is very often the simple things that work in the face of all the complicated objections that are piled upon them. I hope that the noble Lord will withdraw his amendment.
My Lords, I should like to make it clear that I was not in any way challenging the fact that we were to have a flat-rate system. As the noble Baroness said, we discussed that at an earlier stage of the Bill, and I am not seeking to re-open the question. I am sure that it would not be proper for me to do so. But I am saying that some people who have great experience of pension schemes and are operating them all the time—for instance, the CBI, the National Association of Pension Funds and the nationalised industries pension group—believe that there could be a move of younger people out of occupational pension schemes, which could have a destabilising effect.The amendment would not come into operation at all if the noble Baroness is correct in saying that there would not be such an exodus. She may be correct. We cannot say; we do not know. I cannot see why the Government find it so difficult to accept the amendment, since the provision would come into operation only if they are wrong, and they are confident that they are not. But the point has been made, and I hope that a careful note will be taken of it. There are great anxieties on the point, but, nevertheless, I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [ General power to modify statutory provisions]:
moved Amendment No. 3:
Page 21. line 43 at end insert—
(" (aa) the Sheriffs' Pensions (Scotland) Act 1961;").
The noble Baroness said: My Lords, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 18 [ Additional pensions]:
moved Amendment No. 4:
Page 23, line 24, at end insert (" or
(d) is a parent, working part-time who is in receipt of child benefit,").
The noble Lord said: My Lords, the reasons for asking for women who are working part-time and who are in receipt of child benefit to be given the option of having those years excluded are as follows. In the Bill we have excluded those who would be working full-time but who are not working because they are taking care of their babies. However, it so happens that many more women are working part-time while looking after dependent children. It seems to me that it is unfair that they should not be given the exclusion that women who are not working because they are looking after their children are given.
Having responsibilities protection, as the Bill envisages it, though vital, will not have quite the significant impact on mothers as was assumed. What has been found is that the median time before returning to work for women with dependent children has fallen from 7.7 years to 3.4 years.
Married women account for about three-quarters of all part-time employment. Women who have dependent children are much more likely to be working part-time than full-time, and are the majority of such workers. A recent Department of Employment survey of women's employment found that over twice as many women returned to part-time than to full-time work after childbirth; 52 per cent. compared with 21 per cent. The same survey also concluded that the:
"increase in women's participation in recent years is due mainly to increased participation among women in their 30s and 40s and is largely in part-time work rather than full-time".
Although mothers are more economically active now. it is in part-time rather than in full-time work. A 1980 survey on women and employment showed, too, a substantial downward occupational mobility over women's family formation period, mainly on return to work after first birth. That has obvious implications for their earning capacity in their years of part-time work.
In general terms also we know that women earn less than men when we compare full-time earnings, and significantly less when in part-time work. The average gross weekly earnings for full-time employees on the 1985 figures given by the Department of Employment are £192.40 for men and £138.80 for women, although over a third of women earned less than £100 weekly. The important point for my purpose is that the average gross weekly wage for women in part-time work was £37.80 for manual and £41 for non-manual work. The figures also showed that 46 per cent. of part-time women workers were in semi-skilled personnel service and unskilled manual work, as compared with only 22 per cent. of full-time women workers.
Therefore, part-time women workers are also less likely than part-time men workers or full-time workers to be able to improve their second pension by moving out of SERPS and into a more favourably based occupational scheme. They are very much less likely to be able to do that, so for them the pension has to be SERPS. They do not have much choice. The majority of women spend some of their potential working life out of the job market while engaged in full-time child care. That is taken care of in the Bill. A more significant number of years are spent in part-time work by women with dependent children. They spend many more years doing that than out of the job market altogether. We want that time to be ignored in the same way that the other time is being ignored. That is a far better way to deal with the matter. I hope that the Government will see the wisdom of doing that and will accept the amendment. I beg to move.
My Lords, this amendment seeks to extend to parents who are working part time, and are entitled to child benefit, the special protection of SERPS rights which we have undertaken to provide for parents who stay at home to look after their children under age 16, and also for disabled people and those who stay at home to look after them.We do not deny that the abolition of the 20 best years rule will adversely affect some people who retire next century. Our priority all along has been to protect the position of those who will be hardest hit. That is why we have concentrated on protecting those who are unable to work for long periods because they stay at home to bring up children or to care for a disabled person, or who do some work but have low earnings which are below the lower earnings limit for national insurance contributions. We are very well aware that in some circumstances a person who stays at home to look after a child could be better off in pension terms than someone who qualifies for child benefit but returns to work on a part-time basis, and earns above the lower earnings limit. But I have to say that some of the examples which have been quoted are based on untypical earnings levels and produce somewhat exaggerated results. In fact, something like half of female part-time workers earn below the lower earnings limit, so provided they qualify for child benefit for a child under 16 they would qualify automatically for protection of their SERPS rights. It is right that they should be afforded that protection. So far as women earning higher amounts (most of whom will eventually return to full-time work) are concerned, it does not seem unreasonable that they could be expected to make greater personal provision for their retirement than women with no earnings. We are aiming for a simple and workable scheme. Past lessons have shown that the quest for completely even-handed treatment has resulted—as I am sure your Lordships would agree—in an impossibly complicated social security system. A system which in effect compared the earnings in each child caring year with the average earnings in other years to see whether the person would be better off or worse off would be extremely complicated to administer and to explain to pensioners and prospective pensioners. It is most important that we keep the arrangements as simple as possible so that people can understand what they are entitled to. The noble Lord, Lord Pitt, said that women part-time workers' average earnings are £37·80. That is below the national insurance contribution lower earnings limit, and those women would have their SERPS rights protected. I want to stress that the powers in Clause 18 of the Bill are already wide enough to allow part-time workers to be protected if a future administration were to decide that there was an adequate case for doing so. There is plenty of time to sort this out because the measures for protection of SERPS rights will not need to be applied until the end of the century. I should also add that if it were ever decided to extend the protection, DHSS records are held in such a way that qualifying cases would be able to be identified. We have taken steps to protect those who will be hardest hit by the abolition of the 20 best years rule, but for the reasons I have explained we do not see a case for going further than that. I hope that what I have said will have persuaded the noble Lord, Lord Pitt, to withdraw his amendment.
My Lords, I support the amendment in the name of my noble friend. It seems that the Minister does not understand some of the implications for women who undertake part-time work. There are all kinds of reasons why a woman may want to continue with employment even though her children are small. One is that she may want to retain an interest in employment so that she does not lose touch with her job or profession. She may want to move into full-time employment later.The new provision of SERPS puts such women at a disadvantage. The Minister has said that women who do not return to part-time work and who remain at home with their children could be in a better financial position with regard to their pensions than women who return to part-time work. That provision is a disincentive to women who wish to return to work if they have children. That is discrimination against women and puts them into a difficult position. I have said in the House on a number of occasions that women do not only suffer an immediate financial loss when they work part time; they often lose promotion prospects and pension entitlement. The Bill underlines that loss of pension entitlement. If my noble friend's amendment were accepted, it would encourage women to continue with their employment or career part time, knowing that at least their pension entitlement would be based not on the average of their earnings when their children were small but that of the years when they were earning full time.
My Lord, with the leave of the House, I think I mentioned most of the arguments that the noble Baroness has quoted. However, I am sure that your Lordships would agree that it would be wrong to treat people in part-time work more favourably than those with the same level of average earnings derived from a lifetime of full-time work. That would be the effect if the amendment were carried. I think that I dealt with the other arguments during my original reply.
My Lords, the Minister has failed to recognise that a woman is working part time and yet spending the rest of her time looking after a child. I cannot understand why the Government do not appreciate what they are doing. The woman is now left with a choice of staying at home full time and not entering the labour market or taking jobs with such short hours that she does not go beyond the limit which would allow for her pension to be taken care of. I cannot believe that any government seriously want that. The Government seem to want that. I cannot believe that your Lordships want that. I shall divide the House.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 78; Not-Contents, 128.
DIVISION NO. 1
|Addington, L.||Kennet, L.|
|Airedale, L.||Leatherland, L.|
|Amherst, E.||Listowel, E.|
|Ardwick, L.||Llewelyn-Davies of Hastoe, B.|
|Attlee, E.||Lloyd of Kilgerran, L|
|Banks, L.||Lockwood, B. [Teller]|
|Blease, L.||Lovell-Davis, L.|
|Blyton, L.||McNair, L.|
|Briginshaw, L.||Mishcon, L.|
|Brockway, L.||Molloy, L.|
|Bruce of Donington, L.||Morton of Shuna, L.|
|Burton of Coventry, B.||Mulley, L.|
|Caradon, L.||Nicol, B.|
|Carmichael of Kelvingrove, L.||Oram, L.|
|David, B.||Paget of Northampton, L.|
|Davies, L.||Phillips, B.|
|Davies of Penrhys, L.||Pitt of Hampstead, L. [Teller]|
|Dean of Beswick, L.||Ponsonby of Shulbrede, L.|
|Denington, B.||Rochester, L.|
|Diamond, L.||Sainsbury, L.|
|Donaldson of Kingsbridge, L.||Seear, B.|
|Elwyn-Jones, L.||Shepherd, L.|
|Ennals, L.||Silkin of Dulwich, L.|
|Ewart-Biggs, B.||Stallard, L.|
|Ezra, L.||Stedman, B.|
|Fisher of Rednal, B.||Stewart of Fulham, L.|
|Gallacher, L.||Stoddart of Swindon, L.|
|Graham of Edmonton, L.||Strabolgi, L.|
|Grimond, L.||Strauss, L.|
|Hampton, L.||Taylor of Blackburn, L.|
|Hatch of Lusby, L.||Taylor of Gryfe, L.|
|Hayter, L.||Taylor of Mansfield, L.|
|Hooson, L.||Tordoff, L.|
|Hughes, L.||Underhill, L.|
|Hunt, L.||Wallace of Coslany, L.|
|Jeger, B.||Wedderburn of Charlton, L.|
|Jenkins of Putney, L.||Wells-Pestell, L.|
|Kaldor, L.||Wigoder, L.|
|Kearton, L.||Williams of Elvel, L.|
|Abercorn, D.||Boardman, L.|
|Ailesbury, M.||Boyd-Carpenter, L.|
|Alexander of Tunis, E.||Brabazon of Tara, L.|
|Auckland, L.||Brocket, L.|
|Bauer, L.||Brougham and Vaux, L.|
|Belhaven and Stenton, L.||Bruce-Gardyne, L.|
|Beloff, L.||Butterworth, L.|
|Belstead, L.||Byron, L.|
|Birdwood, L.||Caithness, E.|
|Blake, L.||Cameron of Lochbroom, L.|
|Blyth, L.||Campbell of Alloway, L.|
|Carnegy of Lour, B.||Macleod of Borve, B.|
|Carnock, L.||Margadale, L.|
|Chelmer, L.||Maude of Stratford-upon-|
|Colville of Culross, V.||Avon, L.|
|Constantine of Stanmore, L.||Merrivale, L.|
|Cowley, E.||Mersey, V.|
|Cullen of Ashbourne, L.||Milverton, L.|
|Davidson, V.||Monk Bretton, L.|
|De Freyne, L.||Montgomery of Alamein, V.|
|Denham, L. [Teller]||Morris, L.|
|Denning, L.||Mowbray and Stourton, L.|
|Digby, L.||Munster, E.|
|Drumalbyn, L.||Murton of Lindisfarne, L.|
|Dudley, B.||Newall, L.|
|Ebbisham, L.||Nugent of Guildford, L.|
|Effingham, E.||Pender, L.|
|Ellenborough, L.||Penrhyn, L.|
|Elles, B.||Peyton of Yeovil, L.|
|Elliot of Harwood, B.||Plummer of St.|
|Elliott of Morpeth, L.||Marylebone, L.|
|Elton, L.||Portland, D.|
|Fraser of Kilmorack, L.||Reay, L.|
|Gainford, L.||Reigate, L.|
|Gardner of Parkes, B.||Reilly, L.|
|Glanusk, L.||Richardson, L.|
|Glenarthur, L.||Romney, E.|
|Gray of Contin, L.||St. Davids, V.|
|Gridley, L.||Saint Oswald, L.|
|Grimthorpe, L.||Salisbury, M.|
|Hailsham of Saint||Saltoun of Abernethy, Ly.|
|Marylebone, L.||Sandford, L.|
|Halsbury, E.||Selkirk, E.|
|Hanson, L.||Sempill, Ly.|
|Harmar-Nicholls, L.||Shannon, E.|
|Henderson of Brompton, L.||Sharpies, B.|
|Hesketh, L.||Skelmersdale, L.|
|Hives, L.||Somers, L.|
|Home of the Hirsel, L.||Stodart of Leaston, L.|
|Hood, V.||Strathspey, L.|
|Hooper, B.||Sudeley, L.|
|Hylton-Foster, B.||Swinton, E. [Teller]|
|Jessel, L.||Terrington, L.|
|Kimball, L.||Teviot, L.|
|Kimberley, E.||Tranmire, L.|
|Kinloss, Ly.||Trumpington, B.|
|Kinnaird, L.||Tweedsmuir, L.|
|Kitchener, E.||Vaux of Harrowden, L.|
|Lane-Fox, B.||Vickers, B.|
|Lauderdale, E.||Vivian, L.|
|Layton, L.||Waldegrave, E.|
|Lindsey and Abingdon, E.||Whitelaw, V.|
|Long, V.||Wynford, L.|
|Lucas of Chilworth, L.||Young, B.|
|Lyell, L.||Zouche of Haryngworth, L.|
Resolved in the negative, and amendment disagreed to accordingly.
My Lords, I understand that the Statement has now been cleared, so I shall not call Amendment No. 5 for the time being.
Supplementary Benefit: Single Payments
My Lords, with the leave of the House, I should like to repeat a Statement on single payments being made in another place. The Statement is as follows: "Mr Speaker, with permission, I should like to make a Statement about single payments of supplementary benefit."I first simply set some facts before the House. Between 1974 and 1979, under the previous Government, what were then called exceptional needs payments rose from 0.8 million to 1.1 million, and their cost from £11.5 million to £38 million. These numbers were already a matter of concern, and one of the objectives of the review carried out in 1976–78 was better control of such payments. In 1980, the present Government made changes which it was hoped would overcome the problem, and which indeed took account of the recommendations of that earlier review. Initially, they appeared to have had some success. But by 1983 the number of payments was virtually double the 1979 figure at nearly 2 million, and expenditure had almost quadrupled, to over £140 million. By 1985, both figures had more than doubled again, to more than 4 million payments at a cost of over £300 million. And the growth shows no sign of diminishing. "This trend cannot be explained by the increase in the number of claimants: the rate of payments per claimant has itself more than doubled since 1979. Nor can it be explained by changes in weekly benefit levels: the weekly scale rates rose in real terms by some 6 per cent. between November 1978 and November 1985. There have also been other significant improvements: for example, in some of the payments for children; in the amount and scope of regular additional heating payments, especially for pensioners; and in the rules concerning benefit for the long-term sick and disabled. "Against this background, our firm conclusion in the recent social security review was that the present system of single payments could be neither justified nor sustained. It is incompatible with sensible planning and efficient administration, as is shown by the fact that, althouth only some 5 per cent. of supplementary benefit expenditure, it accounts for nearly 50 per cent. of all supplementary benefit decisions and over 50 per cent. of appeal hearings. "More fundamentally, it is clearly not achieving what Parliament intended. Despite elaborate regulations and adjudication, wide discrepancies occur from one area to another. It is increasingly perceived as unfair by others, on incomes little or no higher than supplementary benefit, to whom no comparable help is available. There is unacceptable scope for exploitation and abuse, yet, at the same time, insufficient flexibility to meet the real needs of genuine claimants. "As the House knows, it is for these reasons that the Government have brought forward in the current Social Security Bill proposals for an improved structure of regular weekly income support, coupled with a clearly distinct social fund designed to give appropriate help with genuine special occasional needs in a more practical, manageable and flexible way. We believe those proposals are essential to the proper working of the benefit system as a whole. "Meanwhile, however, the growing unworkability of the present single payments system could not simply be ignored. In February, therefore, we put for consultation to the Social Security Advisory Committee draft regulations making a number of changes within the existing structure as an interim measure. The principal elements were to restrict furniture and bedding payments to more clearly defined categories of need, paying particular attention to the needs of pensioners, the sick and disabled, and those leaving hospital after a long stay; to introduce time rules for repeat claims for items of furniture; to set standard sums for specific items such as cookers, and standard amounts to cover a range of miscellaneous household items which can at present be individually listed; and to introduce a standard pattern of help with maternity needs. "We have now given very careful consideration to the committee's report, which is laid before Parliament today together with my right honourable friend's response. The report clearly recognises the difficulties to which the Government are seeking to respond. It also recongises the effort which has been made to take account of the needs of those thought to be most vulnerable, and welcomes in principle the introduction of standard payments and lump sums. While making it plain that the committee do not endorse the proposals as a whole, it nevertheless suggests a number of specific modifications they would wish to see if the Government should decide to proceed. "For the reasons I have given, the Government continue to believe that action is needed. Moreover, those considerations have been greatly strengthened by the continued escalation of single payments in recent months. The most recent figures, for the four weeks to 3rd June, were equivalent to an annual rate of 5½ million payments and at least £400 million. Many local authorities and other bodies are mounting campaigns to stimulate further claims; for example, by circulating leaflets containing extensive 'tick lists' of items under some such slogans as 'Closing down sale'. Apart from anything else, the consequent growing burden on DHSS offices, despite the additional staff we are making available, is seriously detrimental to the interests of claimants themselves. "The Government therefore propose to proceed with new regulations, but with a number of important modifications to meet detailed suggestions which the committee have made. These include further steps to protect the position of refugees, women who have been subject to domestic violence and young people leaving local authority care; a lengthening of the qualifying period for maternity payments; the extension of lump sum payments for miscellaneous items to childless claimants setting up home; and, perhaps most important, a doubling of that lump sum from £25 to £50 for each dependant. Regulations incorporating those changes have been laid today with a view to bringing them into effect on 1lth August". That, my Lords, concludes the Statement.
My Lords, my first comment must be that the fact that we have this Statement today indicates the tremendous disarray in which the Government find themselves in regard to social security. We are now in the middle of the Third Reading of the Social Security Bill, which, in the Government's view, is supposed to put everything right, and suddenly we have this very extensive and important Statement thrust upon us. I must protest on behalf of my noble friends and myself.I wonder whether it has occurred to the Government that the reason for the increase in demands since 1979 and the fact that the demands have doubled might have something to do with Tory Government policies, with increasing poverty and with increasing unemployment. It is not for the Government to complain that costs have gone up: it is for those who suffer from the Government's policies to complain that their needs and their impoverishment have increased. I thought that the Minister seemed to be, in repeating the Statement, reproving the local authorities and claimants' committees who seek to bring their rights to the attention of claimants. The fact that more people are becoming aware of their rights and are asking for them is not a matter of regret on this side of the House, and I am sorry if it is a matter of regret on the other side. I must ask one or two questions, although, in view of all the business we have to do today, I promise I will not make a Second Reading speech. However, there are some very puzzling points here. I must first ask the noble Baroness if this list of single payments is likely to be transferred into the social fund when that comes into effect. I read in the Green Paper, volume 1, paragraph 13.6:
I hope I am not anticipating what is going to happen to the social fund, about which there is some confusion, but if the Minister could give me guidance I would appreciate it. I must next ask the Minister whether there will be any appeal against the allocation of these amounts. Will there be any special help during severe weather? We know the muddle that exists in the Government's policies on helping people to keep warm in severe weather. Also, I appreciate there have been some concessions, but I have to ask the Minister whether people from board and lodging accommodation will get the chance of a house. Will they be given the necessary assistance? I also wonder, when the increase in these amounts is discussed, whether the Government are putting on the credit side the fact that, by making single payments to many families who have been homeless or people coming out of institutions, there has been a net saving in the cost of their institutional care or board and lodging care. I therefore do not regard those figures as being entirely a debit in the Government's finances. Additionally, I cannot think why 1lth August has been fixed. There is no Royal wedding that I know about, and there is no special magic that I can see about 1lth August. I am sure that the Minister will tell me why that date was chosen. However, I imagine that there will be a great rush between now and 1lth August by all the claimants who will find out that they have a right to ask for these benefits, and I only hope that the Government will take on extra staff to deal with them! Seriously, my Lords, this is no way to undertake the revision of such a serious matter. I thought that the Statement was only just about fair to the Social Security Advisory Committee and o course I received its long report only a few minute; ago. However, I alway first look at the end. At the end I read:"Payments from this fund will not be governed by detailed regulations".
We all say "Hear, hear" to that—at least most of u . would, I am sure."The Government's response has been to propose much tighter conditions of eligibility and a greatly limited range of items. This response, because it seeks to attack the symptons (increased public expenditure) without fully analysing the causes, must necessarily run the risk of causing widespread hardship amongst claimants who are already living at what is generally recognised as the poverty level'
My Lords, we on these Benches an grateful to the noble Baroness for repeating the Statement made in another place. I should like to make it clear at the beginning of my comments that we on these Benches would certainly be against abuse. I abuse is proved, we should certainly want to see i tackled. However, it is very difficult to tell how much the increase is due to the increase in poverty, as the noble Baroness, Lady Jeger, suggested—due, for example, to unemployment—and how much is due, as I noticed in a quick glance in the past few minutes that the Social Security Advisory Committee suggests, to a reservoir of unmet needs which is only now being fully appreciated.It seems to me that those are weighty matters which ought to be investigated very thoroughly. The views of the Social Security Advisory Committee have beer published only today along with the regulations. We have not had a chance to look at those to see precisely what they are saying, or to consider them in any detail However, it is here that the advisory committee has criticised the impact of the changes on some of the poorest people. On the other hand, the Government are intent on going ahead with their regulations with certain modifications and one must ask why there is the rush. Why should the public and Members of Parliament not have the opportunity to consider the views of the Social Security Advisory Committee at greater length? Why is there not a proper time for reflection? There is then the important point raised by the noble Baroness, Lady Jeger, as to whether these regulations which are now being issued will form part of the regulations controlling the social fund. That would seem to be contrary to what we have understood was going to be the position. The rush with which this matter is being pushed through without adequate time for general consideration of the report of the Social Security Advisory Committee is something about which we too would wish to protest.
My Lords, let me start with the noble Baroness, Lady Jeger, who said that we were rushing things through—as indeed did the noble Lord, Lord Banks. We announced our proposals on 24th February 1986, but we did not receive the report of the Social Security Advisory Committee until 22nd May. Since then we have been giving careful consideration to the committee's report and to the representations which it received. We have made a number of significant changes to our original proposals. However, we could not bring them before the House until we had concluded our considerations, and these considerations have taken time to prepare.The noble Baroness, Lady Jeger, asked about exceptionally severe weather payments. Those proposals do not alter Regulation 26, which deals with payments for exceptionally severe weather. In the light of last winter's experience, the Government are looking at this issue most carefully and plan to bring forward before next winter proposals which would also deal with those who pay for fuel by slot meter. With regard to the right of appeal against amounts, all decisions as to whether or not a claimant is entitled to a single payment will be made by adjudication officers. All decisions will still carry the right of appeal, but disputes about amounts payable should arise much less often. The noble Baroness asked about widespread hardship and the view of the Social Security Advisory Committee. But let us be clear about the sums of money that will still be available. A lone parent with two children setting up home for the first time following a breakdown of marriage could receive furniture and bedding payments of up to £800. An unemployed couple could get over £250 to replace a cooker and a bed after a year on benefit. Those are not insignificant sums when compared with the position of other low income groups. The noble Baroness also asked me whether the list is to be transferred to the social fund. I must tell her that no decisions have yet been taken on what items will be in the social fund. Appeal rights would continue. With regard to board and lodging claimants receiving assistance, yes, they will receive assistance if they qualify or, for instance, have a good reason as defined in regulations, or are leaving special care hostels. On the question of staff to cope with further claims before 11th August, it is the department's aim to continue to match staffing of local offices to the workload through a complementing system which has been agreed with the trade unions. This system is underpinned by regular complementing reviews which are intended to adjust the basic complement. Previous complement reviews have had to be abandoned due to industrial disputes which so affected working patterns that the results would not have reflected how work is done in local offices. Because of the exceptional pressures which have built up in local offices, 5,000 more staff have been made available than would have been justified by the strict application of the complementing system for the current year. This addition was made pending the results of the complement review now taking place. The noble Baroness, Lady Jeger, asked: why 1lth August? The noble Baroness will know that there is normally a three-week period between laying regulations and their coming into effect. Three weeks from today is 11th August. The noble Lord, Lord Banks, asked why the Government were laying these important regulations so late. We would answer that we announced our proposals on 24th February, as I have already said. I think that I have already answered that question. I welcome the remarks made by the noble Lord, Lord Banks, against abuse, which were not quite followed through by the noble Baroness, Lady Jeger.
My Lords, may I assure the noble Baroness that this side of the House has always been—when it was on that side of the House also—as opposed to abuse as that side of the House has ever been?I want to ask one question. Why was not the Social Security Advisory Committee's report published so that we could all see it, consider it, and have it in our hands at the time when this important Statement was made? The report has some very critical comments in it. Surely those should have been available to your Lordships as well as to those in another place and to the public at large?
My Lords, I thought I had answered that we received it on a certain date—I am looking back at my notes—and that we have been having complicated dicussions on our views. But it has been published, as is the normal practice, today.
My Lords, today!
My Lords, yes, indeed; today. Perhaps I may clarify this point. The noble Baroness, Lady Jeger, said earlier that they were telling people what they were entitled to. I have a splendid letter from a lady in the North, who wrote to the social security office saying that she had been urged to claim for all manner of things. She did not want to claim for more than three very modest items. The form filled in was clearly not filled in by her, but by somebody else. She wished to disclaim that form and claim merely for the three items that she needed.
My Lords, before the noble Baroness sits down, can she tell us how many such letters she has received? Was it only one letter and, if so, is it not rather an abuse of the argument to refer to one letter? I could refer to many other letters.
My Lords, the Statement refers to the wide discrepancies that occur between one area and another. Am I right in thinking that the Government regard this as being totally undesirable? Am I also right in calculating that the great majority of those discrepancies arise as between the decisions of adjudication officers and not as between decisions of various independent review tribunals?
My Lords, for the sake of speed I shall write to the noble Lord on that matter.
My Lords, can my noble friend the Minister say whether the amounts we are talking about are to be grants or loans?
My Lords, as the single payments scheme is in operation until the social fund takes over, the single payments scheme will proceed as it is now.
Social Security Bill
Consideration of amendments on Third Reading resumed.
Clause 20 [ Income-related benefits]:
had given notice of his intention to move Amendment No. 5:
Page 26, line 9, at end insert—
(" () Differences of age within the range of 18 to 60 shall not be taken into account for the purpose of determining entitlement to an income related benefit or the amount of any such benefit where a person satisfies the conditions of subsection 10(a) and (b) below, and
(a) has entered his accommodation because— (i) he has been in the care of a local authority under a relevant enactment; or (ii) he is chronically sick, mentally handicapped, physically disabled, or suffering from a mental disorder; or (iii) it constitutes part of a programme of rehabilitation or resettlement under guidance from a government department, health authority, local authority, voluntary organisation, or the probation and after care service; or (iv) he has no parent or guardian and there is no person acting in the place of his parent; or (v) he has had to leave his family home because he was in physical or moral danger; or (vi) he is a person who has been recognised by the Home Secretary as a refugee under the 1951 Convention and 1967 Protocol; or he has been granted by the Home Secretary exceptional leave to remain for humanitarian reasons; or he is a person who has submitted an application for refugee status to the Home Office; or (vii) he has been accepted as homeless under a relevant enactment (Housing Act 1985, Part III); or (b) he would suffer exceptional hardship if he were to receive a lower level of benefit on grounds of age alone; and any question as to whether any person comes within this sub- paragraph shall be determined by the Secretary of State in his discretion.")
The noble Lord said: My Lords, I had thought that this amendment, being more restrictive than the one I moved at the Report stage, and being, as I thought, a different proposition, leading to a cost of some £2 million as opposed to £50 million, would be in order for a Third Reading discussion. It was of course accepted and printed, although I was warned that there might be procedural difficulties. At 3.15 this afternoon I was informed that it is the view of the Table that it is not in order for the Third Reading and, in view of these circumstances, I shall not move the amendment.
[ Amendment No. 5 not moved.]
Clause 22 [ Calculation]:
moved Amendment No. 6:
Page 30, line 10, at end insert ("and shall include an amount to cover the cost of repairs and insurance of the structure.").
The noble Lord said: My Lords, I beg to move the amendment standing in my name. The purpose of this amendment is to preserve people's entitlement to the allowance which is currently paid to owner-occupiers to cover residual housing costs. The allowance for residual housing costs currently paid to home owners at a rate of £1.85 a week in addition to mortgage interest includes an allowance for essential routine repairs, maintenance and insurance on the structure of the property. In fact, if the cost of insurance on its own is higher than £1.85, adjudication officers can pay more if they think that it is reasonable.
The weekly addition for maintenance and insurance enables a person to apply for a grant for essential repairs to a home if there is no other way of financing the repairs. An annual amount of £96 can be set aside to cover routine essential maintenance and the insurance premium, which is a great assurance to people who may otherwise have no way of budgeting for a major unavoidable annual outlay.
Residual housing costs also cover ground rent for a lease in excess of 21 years and service charges—that is, maintenance, insurance and cleaning of common areas, which is normally associated with company lets—and also affect people living in mansion block;. If one lives in a mansion block, one has to deal with one's share of the maintenance, insurance and cleaning of the common areas. Payments are also available for the emptying of cess pits and septic tanks, which is very useful to people living in rural areas.
If no allowance is made for these provisions under the proposed legislation—and so far none has been made—the ability of owner-occupiers on income support to maintain their homes in a state fit for human habitation will be seriously undermined, Those who are called upon to meet 50 per cent. of their mortgage interest in the first six months will have to cope with the additional and, for some, insurmountable problem of meeting their insurance costs. On average in the South-East this is an annual premium of £70, and that is based on the figure; provided for a post-1945 terraced house in this part of the world. The often mandatory expense of running repairs, such as painting the exterior of one's house of keeping windows in a decent state of repair in order to prevent heat loss and therefore to reduce heating bills is a serious problem.
It is the proud boast of the Government that 63 per cent. of English housing stock is now owner-occupied. However, the dream of owning one's own home is turning into a nightmare for more and more people. Since 1979 over 50,000 people have lost their home; because of mortgage payment difficulties. The re-possession figures have risen from 2,530 in 1979 to over 16,000 in 1985. To impose further financial penalties on owner-occupiers is another serious; betrayal of the Government's principle of encouraging home-ownership. It would particularly hit those council tenants who have bought council homes and those whom the Government are very anxious to encourage to buy council homes—people about whom the Government boast quite a lot.
The Government's own report revealed that 84 per cent. of local authority homes needed work done on them. For example, the survey showed that a very high percentage of traditional houses built between 1945. and 1964 need repairs at an estimated cost of £3,900—nearly £4,000. It is true that at present the single payment can be obtained for repairs to make the home habitable—but only if the cost of the required repairs does not exceed £325. The Minister may tell me that the social fund may provide a grant in some circumstances. However, that is hardly likely to be available for running routine repairs, which are necessary for so many owner-occupied properties.
Lack of this provision is particularly damaging to the owner-occupiers from the ethnic minorities' community. They are usually forced to buy at the lower end of the market and their homes usually require a great deal of maintenance. For example, the proportion of owner-occupiers among the Asian community is particularly high; in fact, it is estimated at 76 per cent. nationally. Asian organisations are extremely concerned about how they will cope without the help currently available to those on supplementary benefit who carry mortgages. The 1983 figures established that only 0.4 per cent. of owner-occupier recipients received more than £50 per week, and when one compares that with the cost of keeping people in bed and breakfast hotels, it is very small beer. However, that is the consequence of their failing to be able to meet the repair bills.
Many families will be running the risk of being regarded as intentionally homeless, and the human cost of resulting family poverty, of the break-up, and of the unpleasant surroundings in which they will have to live ought to be borne in mind. That is often the alternative facing the family who has either had its home repossessed or is forced to sell up, often below market value. It is not too late for the Government to take this point on board. Notwithstanding my previous failure to convince them of the need to think a little more about the people who are deprived, I again move this amendment in the hope that the Government can see the necessity of taking this step. I beg to move.
My Lords, what we are aiming to do in income support is to set standard weekly incomes for claimants. This is in line with the general approach in the initial scale rate now—they are to meet most living expenses generally rather than to provide a detailed list of amounts for particular items. That is a sensible approach; obviously claimants' actual expenditure patterns vary considerably. But instead of the present system, where we then add other individually-assessed amounts for particular further items, our approach in income support is to build on the present scale rates approach by providing further general premiums for those facing particular extra pressures in families with children, pensioners, lone parents and disabled people.We are also aiming to leave behind the present rules in the supplementary benefit scheme which relate to housing status. Income support will be a simpler, more sensible way of providing help; and it must be right that generally people should make their own budgeting arrangements to cover items such as repairs and insurance. Our proposal will also be a useful simplification for our local office staff. But I can assure the noble Lord that the current expenditure on repairs and insurance will be included in the resources allocated to the new income support scheme.
My Lords, I would not pretend that I am entirely satisfied, but in the circumstances I beg to leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 6A:
Page 30, line 26, at end insert—
(", provided that, in calculating or estimating income from employment, any expenses necessarily incurred in connection with that employment shall be deducted from the income.")
The noble Baroness said: My Lords, I rise in a spirit of helpful inquiry to move the amendment standing in my name. There was some confusion at Report stage, and the Minister was courteous enough to write to both her noble friend Lady Faithfull and me. I raise this question again today in order that we might clear up one or two points.
I understand that in preparing the regulations which will enforce some restrictions on the expenses which unemployed volunteers can collect the Government will take account of their travel expenses and perhaps the cost of petrol, for instance, if they are using their cars for purposes that are helpful to the disabled. I have a query, however, that has come from one voluntary organisation. What will happen where organisations give to some of their volunteers what is usually called an honorarium? It may not be strictly expenses in that perhaps bills need not be produced. For instance, in some cases Oxfam pay an honorarium to people who man their shops and who give up time that they could use in other ways.
If someone accepts an honorarium, I can see that that will rightly be put down as earnings, but will it mean that having accepted an honorarium, they then lose the expenses they incur in getting to the voluntary work? It may seem a small point, but it concerns many volunteers. I hope that before there is any hard and fast decision it may be possible for there to be consultation so that the anxieties of people who are doing really good work in the community can be put aside, and they can be encouraged to carry on. I beg to move.
My Lords, as the noble Baroness said, it will be recalled that on Report when my noble friend Lady Faithfull tabled a similar amendment there was more than a degree of confusion over my reply. I blush as I renew my apologies. I have since written to a number of your Lordships, including of course the noble Baroness, Lady Jeger, and my noble friend Lady Faithfull, and indicated that I would put the Government's position on record at Third Reading. I am grateful to the noble Baroness for providing me with an opportunity to do so.The treatment of expenses of voluntary workers raises difficult questions of what are really earnings and what are genuine expenses. At present, if someone is working part-time, £4 of his earnings is disregarded. Before applying this automatic disregard to the person's net earnings, genuine work expenses are deducted. In the Green and White Paper we brought forward proposals to increase the automatic disregard from £4 to £5, and at the same time end the individual assessment of work expenses. The earnings disregard for particular groups, such as disabled people and long-term unemployed couples, will rise to £15. The treatment of expenses paid in connection with voluntary work is a separate matter and one which was not touched on in either the Green or the White Paper. The issue here is what counts as earnings. We accept that there is an argument for not treating as earnings some of the payments connected with volunteers' expenses. The example I quoted in Committee was that of petrol expenses for someone who helps housebound people go shopping or visit the local library, and so on. I am happy to repeat the undertaking I gave in Committee that we shall look very sympathetically at the matter when drawing up the detailed regulations for income support. I should like to confirm that our proposals on the disregards of part-time earnings do not relate to the payment someone receives in return for their child-minding services. The Green and White Papers do not refer specifically to child minding. Our proposals on the extent to which earnings shall be taken into account in calculating benefit do not cover the way in which these earnings or resources are defined. It is these issues which have become confused. Concerning an honorarium and whether the disregard will apply to the whole amount, this indeed involves consideration of the prime detail of regulations. I think I have made it clear that, however volunteers' expenses are treated, the £5 disregard will not apply to them as it does to normal remunerative payments. We shall need to consider the matter as we consider how we treat volunteers' expenses. I think I have covered the matter in what I have just said. I hope I have now put the record straight on both these issues, particularly as my noble friend Lady Faithfull was the one who was really put out of kilter by my peculiar behaviour. I hope that every noble Baroness here will feel able to support me, and that the amendment will be withdrawn.
My Lords, in view of the explanation from the noble Baroness, I beg leave to withdraw the amendment
Amendment, by leave, withdrawn.
Clause 28 [ Arrangements for housing benefits]:
moved Amendment No. 7:
Page 38, line 18 at end insert—
(" () Regulations shall provide for disregarding, in determining a person's income (whether he is the occupier of a dwelling or any other person whose income falls to be aggregated with that of the occupier of a dwelling), so much of any family credit as represents the estimated average cost of school meals available to any member of the family.")
The noble Baroness said: My Lords, in moving Amendment No. 7 I wish to say that its purpose is to highlight a particular injustice which occurs when there is an interruption between the family credit free school meals compensation and the housing benefit. I hasten to say that it is nothing to do with the principle of providing free school meals as is the case now versus the scheme in the Bill of cash compensation for school meals which we have debated fully on several occasions and over which a vote in favour of the cash compensation scheme was taken. This amendment is about the level of the compensation as it affects a small, but vulnerable, number of families, and is therefore an important point to bring out.
The case for this amendment rests on the fact that it was a social security advisory committee which first pointed out that families receiving housing benefit would find the compensation for loss of free school meals greatly reduced, the reason for this being that family credit would count as income for housing benefit purposes. Thus a higher family credit payment would mean a lower housing benefit payment, the loss of free school meals having been taken into account.
To give a few relative figures, may I point out that for families receiving help with both rent and rates, the weekly £2·20 compensation for free school meals would be reduced to a mere 44p per week and for families receiving help with rent only the compensation would be reduced to 88p per week. For families receiving help with rates only it would be reduced to £1.76 per week. As the Social Security Advisory Committee said in its fourth annual report:
"We do not believe that this will fulfil the Government's aim of giving such families 'adequate resources and the freedom to choose how to use them'."
It shows that the reduction in the compensation is large enough to cause a great difference to those families.
The Government have sought to dismiss this issue on the grounds that slightly fewer than a quarter of the families affected will also be receiving housing benefit. But the point that the Government have not met is that the poorest quarter of the families will be affected in this way. This is because it is only the poorest working families who will still be entitled to housing benefit after the cuts proposed in the Bill are introduced. Indeed, according to a Written Answer in another place entitlement to housing benefit for a two-parent, two-child family claiming family credit will cease at £117·80 per week gross and for a lone parent with two children at £106·79 gross. It is difficult to understand why most of the families will be receiving only a rate rebate and not a rent rebate or allowance. Entitlement to rent rebates and allowances extends further up the income scale than entitlement to rate rebates. On the whole it is likely to be owner occupiers and elderly people who are receiving a rate rebate only, and I should have thought it was difficult to believe that many of the poorest working families will fall into either category.
Finally, may I say that if the Government are right in saying that it is only a small minority of the families who will be affected adversely, does it not also follow that the costs of protecting this small minority in the manner proposed by this amendment would also be very small? Indeed, I was wondering whether I might ask the noble Baroness the Minister what the cost would be of protecting this small minority as proposed in this amendment. The noble Baroness may argue that such a disregard would complicate the system and therefore she would not be willing to do it. But surely such a minor complication would be a small price to pay for protecting the very poorest families against what would otherwise be for them a very significant loss. That is the purpose of this amendment. I hope that the noble Baroness will look at this favourably because for these families it would be of enormous importance to get the full compensation for the school meals. It will be the children of those families, being the poorest families, who will be in the most need of the full compensation, and therefore I think it is a logical change for which we are asking and a protection that is so necessary. I beg to move.
My Lords, while the carrier pigeons are still at work perhaps I might add a few words to those of the noble Baroness, Lady Ewart-Biggs. The Government have shown that they are very willing to see that school meals are provided, particularly in the holiday season and right throughout the year, and it seems to me that if they put that importance and that weight on school meals they ought probably to agree to this amendment. I beg to support it.
My Lords, I apologise for not being in the House when the noble Baroness, Lady Ewart-Biggs, commenced moving this amendment. It always comes up a little late on the monitor by comparison with what one is watching for. However, I am not sure that I am in support of this amendment because I think it will unnecessarily complicate the administration. I should prefer to see the amount given as the meals supplement to be adequate to cover this without necessarily introducing the further administrative process which would be involved.At an earlier stage my noble friend the Minister gave us the Government's reasons for putting in extra cash in place of free meals. This second point might only create a complication. I am also worried that it might reach a point where it could create a disincentive to take employment. I ask my noble friend the Minister to correct me if I am wrong, but I think there is a possibility that this in itself could create a poverty trap, which is the very thing we are aiming to avoid. As I understand it, once the amount of family credit is less than the disregard then the housing benefit will not take into account the fact that the family credit is still being withdrawn. This could create a reverse poverty trap and a reason for people not to want to go into employment because that would be to their disadvan-tage. I am not satisfied that this amendment would be the right answer. It would add complexity and may create the very problems that we are trying to avoid.
My Lords, I appreciate the motives that bring the noble Baroness, Lady Ewart-Biggs, to move this amendment today. It is an interesting approach to the issues we discussed very recently. But I have to say that it is an approach I cannot commend to your Lordships.Repetition is not something that is welcomed by your Lordships, but the nature of this amendment forces me to point out that it is important to try to consider the changes we propose as a whole, and not to concentrate on points of detail in isolation. Of those families who will receive family credit and housing benefit we estimate the great majority will be better off overall (around two-thirds); many of them will be better off by more than £5 a week. Of course, most of those affected, 90,000, will only be on rate rebates and therefore their housing benefit loss will be limited to a maximum of 44p. The amendment would have the effect of introducing an unwelcome complication into the housing benefit scheme. The Government have proposed a simplified and improved scheme. The proposal before us would make the scheme more complicated to administer and harder for the public to understand. It would be particularly difficult, for example, for a family who was in part-time work, and so not eligible for family credit, to understand why they were not entitled to the same housing benefit disregard as a family with the same income including family credit. We should also expect that as time goes on it would be less and less obvious that the extra disregard was a link with the former provision of free school meals. But here is a further fundamental flaw. It has been a major concern of the Government to remove the worst effects of the poverty trap. The effect of the amendment would be to introduce marginal tax rates well in excess of 100 per cent. If housing benefit disregarded amounts of family credit in lieu of the cost of school meals, then where the amount of family credit was less than the disregard housing benefit would be withdrawn at a rate that did not take account of the withdrawal of family credit. This would lead to an even higher marginal tax rate than we have under the present scheme. Moreover, for those with a number of children this could take effect over a quite wide range of income. The noble Baroness asked me in particular about the cost of protecting the small minority and I must tell her that it would be between £3 million and £4 million a year. To help the House understand, I think it would be helpful if I gave an illustration of what could happen. Let us consider a family with two children, and £3 family credit and £5 housing benefit. If their net earnings were to rise by £5 then, under the illustrative rate set out in the technical annexe, the £3 family credit would cease and the £5 housing benefit would reduce to £1. The total reduction in benefits would be £7 yet the net earnings would have risen by only £5—an overall reduction of £2. I hope that noble Lords will agree that, while removing the steep steps that came from the loss of benefit and free school meals under the present arrangements, we would not wish to replace them by slopes that would reintroduce the position where an increase in earnings will lead to a reduction in net income. With that explanation, I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, I think that there is one thing on which the Minister and I would agree; that is, that this is a most complicated case and it is a Bill of enormous complexity. However, unfortunately the interpretations seem not to be in agreement at all as to how the very poorest families who are on family credit while at the same time claiming housing benefit will be affected. I have listened to the Minister's answer and I understand it, but it does not fit with other interpretations of how a certain number of families will be affected.The point that gives me great concern is that the families whom we interpret as being affected will be the very poorest ones, by the very virtue of their being on the housing benefit within this Bill. So I think that the argument for not complicating things is not a very good one, if I may say so to the Minister, because sometimes one needs to complicate things in order to create justice. In this case, it is genuinely thought that this concomitant small change in complication is justified in order to ensure that the very poorest section of the community will not lose out on this particular cash compensation. Those people are in the greatest need of all. However, I think that the noble Baroness has given a very full explanation and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [ Awards etc,]:
moved Amendment No. 8:
Page 44, line 22, leave out ("or direction").
The noble Lord said: My Lords, with the leave of the House, may I, in moving Amendment No. 8, speak also to Amendments Nos. 9, 10, 11 and 12? These are all straightforward drafting amendments. They are consequential upon the passing at Committee stage of Amendments Nos. 88, 101 and 102. Your Lordships will recall that those amendments, among other matters, required the Secretary of State when operating the social fund to proceed by way of regulations approved by Parliament and not by way of directions which he might himself make. There were inadvertently left in the Bill a number of references to directions. All that these amendments seek to do as a consequential matter is to remove those references. I beg to move.
My Lords, we are considering most urgently the amendments to which your Lordships agreed in Committee and which established the right of appeal to social security appeal tribunals. We are looking very closely at the arguments put forward by your Lordships at that time. In those circumstances, I can have no objection to your Lordships' amendments.
On Question, amendment agreed to.
moved Amendments Nos. 9, 10, 11 and 12:
Page 44, line 26, leave out ("or direction").
Page 44, line 27, leave out ("or direction").
Page 44, line 28, leave out ("or direction").
Page 44, line 30, leave out from ("a") to end of line 31 and insert ("determination under subsection (3) or (4) above, set aside that determination.")
On Question, amendments agreed to.
Clause 82 [ Orders and regulations (general provisions)]:
[ Amendment No. 13 not moved.]
Schedule 10 [ Minor and consequential amendments]:
moved Amendment No. 14:
Page 149, line 25, at end insert—
"40A.—(1) In section 78(2A) of the Social Work (Scotland) Act 1968 (duty to make contributions in respect of children in care etc.) for words from "of where second occurring to the end there shall be substituted the words "of income support or family credit.".
(2) In section 87(3) of that Act (charges for service and accommodation)—
(a) after the word "by" where first occurring there shall be inserted the words "the Schedule to the Housing (Homeless Persons) Act 1977, paragraph 2(1) of Schedule 4 to the Social Security Act 1980,"; (b) after "1983" there shall be inserted "and paragraph 32 of Schedule 10 to the Social Security Act 1986"; and (c) for the words "to 44" there shall be substituted the words "(as amended by paragraph 5 of Schedule 1 to the Law Reform (Parent and Child) (Scotland) Act 1986) and 43".")
The noble Baroness said: My Lords, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
My Lords, I beg to move that this Bill do now pass. If I may term it in that way, we are now heading for the last round-up. A total of 224 hours—183½ in the Commons and approximately 40½ in your Lordships' House—add up to a hard-fought Bill. During the passage of the Bill, we have shown that if we can make improvements to our proposals without sacrificing the principles behind them, we have been ready to do so.Before I sit down, I should like to pay tribute to the spirit in which the debates on this Bill have been conducted by noble Lords on all Benches. They have shown a depth of concern and involvement rarely exceeded in your Lordships' House and I believe that—even though we may not always agree on means—our discussions have been conducted with the common end of making this Bill effective in directing help where it is needed and when it is needed. I should like to thank all those both inside and outside your Lordships' House for the thought, wisdom and expertise that they have contributed to this end. My special thanks are directed first of all to my noble friend Lord Trefgarne, whose urbane contributions to this Bill have been invaluable. I would particularly like to pay tribute to my noble friends Lord Vinson and Lord Buckinghamshire for their great help with regard to the more intricate clauses dealing with pensions. My very real gratitude must also be expressed to my noble friends Lord Boyd-Carpenter and Lord Thorneycroft for their wise and statesmanlike speeches on various issues; and I should like to add to their names those of my noble friend Lady Gardner of Parkes, Lady Macleod and my noble friend Lady Lane-Fox, who have represented a variety of interests concerned with groups such as the disabled and others who are most vulnerable to change. When thanking noble Lords, I certainly could not complete the list without mention of my noble friend Lady Hooper. We may be known by some as "Little and Large"; but my noble friend's stamina and assistance have been great. I am very much indebted to her. The aims of this Bill are clear. They are those which underlie the whole social security review and on which we have consulted on an unparalleled scale. We have diagnosed the faults and come up with solutions to remedy them. Those solutions will restore social security to its true purposes. They are in this Bill. I commend it to your Lordships, and I beg to move.
Moved, That the Bill do now pass.—( Baroness Trumpington.)
My Lords, how can I follow such a disarming statement from my enemy opposite? I can agree with her on one or two points; namely, that I think that the whole House has worked very hard on this enormously complicated and, in my view, ill-conceived Bill. We have made some amendments and I hope that they will stay, because so far as we are concerned none of the amendments which has been passed against the Government in this House represented a Labour Party victory, in our view. Those amendments represented a consensus of noble Lords on all sides of the House and also the views of many experienced voluntary organisations outside the House. I hope that that will be appreciated by those who are looking anxiously at them in connection with what has to happen in another place.I do not go along with the Minister, in spite of all the sweetness and light today, in considering that this matter has had enough consideration. There are 89 clauses and 11 schedules, but only 33 clauses and two schedules were fully discussed in the other place. Because of the guillotine in another place, your Lordships have had to do so much work, some of it successfully and some of it not successfully. I hope that there will be opportunities for further consideration, in view of the delay that there will be in bringing parts of this Bill into effect. I assure the Minister that we shall take urgent steps to deal with it. I must add, in discord, that one of the great problems—and I know that this view is shared by many in the House—is that there are far too many regulations in this Bill. To a large extent we do not know what we voted for or voted against, because we do not know what will be in the regulations. There are 24 references to facilitating regulations, giving rise to 85 separate provisions, and in all those cases we do not know for what we have voted. This must apply also to Government supporters, because they, too, do not know for what they have voted. Nobody knows, except some gastropod of a bureaucrat somewhere in the department. But there we are. I regard this Bill not as a reform of the Beveridge proposals, but as a backlash with a great many ill thought-out provisions that are opposed by the majority of voluntary workers in the field, who are at the sharp end, and I look forward to an opportunity to put it right.
My Lords, from these Benches I should like to thank the noble Baroness, Lady Trumpington, for the even-tempered and helpful way in which she has piloted this Bill through this House, in which she has been ably assisted by the noble Baroness, Lady Hooper, and the noble Lord, Lord Trefgarne. There have been many notable contributions to our debates from the Opposition Benches, from the Cross-Benches, from the Government Benches and, not least, from my noble friend Lord Kilmarnock. There have been some deep and strongly felt differences, but they have all been expressed in good tempered debate.Looking at the Bill as it now leaves this House, I regret that there is to be no increase in the basic pension. I am sorry that a modest proposal of my own in that direction was voted down, but I am glad that the Government agreed that there should be a concession over the 2 per cent. incentive, where there is a switch from occupational pension schemes to personal pension schemes. But we have yet to see how this is to work out in practice, and we shall be interested to learn in due course just what the Government propose in that connection. I am glad that the Government decided that family credit should not be paid through the pay packet, and we on these Benches fully support the three amendments which were carried dealing with the contribution to rates, the community care addition and an appeal in the case of the social fund. I regret, however, that an appeal to an independent tribunal was not extended to housing benefit. There are many matters about which we remain concerned—the under-25s, the fact that child benefit is not to be indexed, the effect of loans instead of grants, the future of school meals, and many other things. We welcome the better alignment of tax and benefit, but regret that as yet there is no integration between the two. In conclusion, I would describe the Bill as a limited and, in certain respects, well-intentioned attempt at reform which nevertheless falls far short of integration. It contains some measures to which we are strongly opposed, it leaves too much to regulation, and it seems to be permeated by a cheeseparing mentality.
My Lords, no government introduce a major measure on social security unless they feel that there is an overwhelming need' for so doing, because, as your Lordships will only too well appreciate at this stage, major legislation on this subject involves an enormous effort not only for both Houses of the legislature, but also for Ministers and for Whitehall. This Bill, whatever view one takes of it—and differing views have been expressed—is obviously a Bill of major importance for our society as a whole and for the vast majority of our population who will be affected by it. Therefore it is fitting that as we reach this stage of the Bill we should reflect for a moment upon its very great importance and the magnitude of the effort involved in bringing it forward.I believe that one of the major factors in bringing it forward was the Government's appreciation of the fact that the earnings-related pension scheme was going to involve, well into the next century, a possibly intoler-able financial burden upon the finances of the national insurance fund and, perhaps, of the Exchequer. It was therefore very brave and very public spirited of the government, in order to prevent that situation developing at a date at which they are unlikely, at any rate as individuals, still to be in office, to introduce a Bill to put it right. It seemed to me, and I think it seemed to many of your Lordships, that this showed a very proper sense of responsibility on the part of those at present charged with the administration of our social security system and of the Government as a whole. The Bill is enormously complex. Anyone who has been involved, as I have in the past, with social security legislation knows that it is a subject on which, inevitably and understandably, and perhaps rightly opinions will differ. There will be argument and genuine differences of opinion, which is an inevitable part of the legislative process on this subject. It is, therefore, again indicative of the Government's sense of responsibility that they have faced all this, and the massive consumption of parliamentary time, in order to make the improvements which they feel are necessary to the working of what is one of the most important parts of our society. I want also to say how much most of us appreciate the tireless energy of my noble friend Lady Trumpington and, as she herself said, of my noble friend Lady Hooper. One can well understand why, when so valuable a Minister proposed to risk her life coxing an eight in the regatta last week, the powers that be intervened to prevent this grave risk to our society because in all seriousness, the noble Baroness has conducted this Bill with great skill, with great courage and with great stamina, and I think all your Lordships will have admired that. I hope that I shall not do the noble Baroness, Lady Jeger, any harm if I say from these Benches that I have greatly admired her conduct in the very difficult task of opposition to such a Bill. I know—again from past experience—that opposition to such a Bill, with the very limited resources by way of briefing that are available to an opposition as compared to a government, is not an easy task; and, equally, that there are temptations to play for popularity on particular issues where there is a plausible case to be made for improving benefits in one way or another. If I may be allowed to say so, the noble Baroness has conducted the opposition to this Bill in a way which is fully worthy of her own high reputation and of the procedure of this House. The Bill now no doubt goes, in view of the amendments carried, back to another place, but we conclude this massive stage of our proceedings in a way which adds greatly to the reputation of this House as a revising Chamber. We have given the Bill a thorough and proper discussion, we have faced its enormous complexities, and we have struggled to get it right. In those circumstances I think many of us would want to wish it well.
On Question, Bill passed, and returned to the Commons with amendments.
Financial Services Bill
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—( Lord Lucas of Chilworth.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD NUGENT OF GUILDFORD in the Chair.]
Clause 1 [ Investments and investment business.]
moved Amendment No. 1:
Page 1, line 9, leave out from ("Act") to end of line.
The noble Lord said: It may be for the convenience of the Committee if I speak to Amendments Nos. 2, 4, 6, 7, 45, 46, 49 and 52. By way of introduction I should like to say that we are faced with a complex Bill which deals with a number of extremely difficult issues. We have a short time to consider this Bill, and we on our side wish to adopt a constructive approach to the proceedings of the Committee. We do not wish to obstruct the Bill, but we wish, as I said at Second Reading, to scrutinise carefully and meticulously its provisions.
We have before us as a Committee a large number of Government amendments, admittedly in response to commitments made to various parties and in another place. The text of these amendments needs careful examination, and noble Lords would be disappointed if, as I think the noble Lord, Lord Boyd -Carpenter, said in speaking to the Motion on the Social Security Bill, That the Bill do now pass, we did not exercise our function as a revising Chamber and do what we can to ensure that even amendments table I by the Government at this late stage do not give rise to any difficulties which the Government or ourselves may not have foreseen previously but which we can foresee at the moment.
With regard to the amendment which I am now moving, our belief, as I think I said at Second Reading, is that we need in the financial services industry a strong superstructure; in other words, we need a strong statutory commission. It is not my task to speak to amendments which we will table at a later stage on the various clauses that deal with that body. Nevertheless the thrust of the amendments to which 1 am now speaking subsumes that there will be a strong supervisory body.
In putting down these amendments we are concerned about three points. First of all, we are concerned about over-regulation. It may come as some surprise to noble Lords opposite that we on these Benches are worried about over-regulation, because it has always been assumed that we are in favour of wholesale statutory regulation of the financial services industry. Not so: we are in favour of very strong supervisory powers at the top level; we are in favour of very strong powers in pursuing fraud, in pursuing insider dealings and in pursuing all the malefactions which have been in evidence in the financial services industry over the past few years; but we wish the markets to work, and in our view the markets cannot work if they are regulated by legislation right down to the last detail.
The second point I wish to make is that the Bill before us provides for a proliferation of secondary legislation—statutory instruments—which may be created from time to time by the Secretary of State or the body to which he might delegate his powers, and these without proper scrutiny. The third comment I have to make in introducing these amendments is that a good deal of the definition of what constitutes an investment or investment business contained in Schedule 1 is in fact incomprehensible.
Amendments Nos. 1, 2, 4, 6 and 7 are basically paving amendments which are designed to introduce into Clause 1 certain features which look to our amendments in Clause 2. I have to apologise to the Committee for the fact that a number of these are starred amendments. The Committee will recognise that we have had very little time to study the Bill from the Committee point of view, and that as an Opposition we are not in a position to adopt all the skills of parliamentary draftsmen in getting our amendments perfect. What we are trying to do is to describe what we should like to see; and then, if the Government accept what we should like to see, no doubt the Government will draft them in a way that makes sense in the terms of the legislation.
Schedule I—and I am now talking to the Question, That Schedule I stand part—defines an investment, investment businesses and other exemptions and various things which remain to be determined. I shall speak to that in a moment, but I introduce the Question, That Schedule 1 stand part, in order to demonstrate that I believe that the schedule should properly be subject to the procedures we envisage for Clause 2. Amendments Nos. 46 and 48 describe the procedure that we have in mind.
Perhaps I may speak for a moment about over-regulation. I mentioned in my Second Reading speech that we were concerned that the timing of the legislation might be wrong. We are, after all, going into what is popularly known as the Big Bang. This will change the nature of the securities markets. As I mentioned at Second Reading, none of us knows what will be the result of the Big Bang. None of us knows, other than that there will be some major surprises in store, the content of which we cannot at present foresee. Our worry about Schedule 1 is that it attempts to define investment and investment business in a very strict and comprehensive manner.
I can understand how the Government have arrived at this procedure. They started off with a Bill which was generally rather loose, if I may put it in those terms. It relied on self-regulation, and it relied on a very loose definition of an investment and investment business. The Government quite rightly consulted a number of interested parties and took the Bill through the various stages in another place. As a result of those debates, and as a result of their consultations, they found a number of loopholes in the definitions which gradually they tried to close.
All of us who have been involved in public business know that there is a tremendous temptation on those who are drafting legislation, both primary and secondary, to try to close all the loopholes in advance. It is in one sense offensive to officials if they discover after six months that part of what they have drafted is not relevant. It may be wrong, it may be that it destroys markets. I can see that the Government have attempted to consult very widely and to define right down to the last dot and comma exactly where investments are and where investment businesses are. I do not believe that it is possible to do that in primary legislation.
I now turn to Schedule 1, and I shall make one or two brief points on it—although my copy of the schedule is covered in red ink, question marks and all sorts of rude expressions which I should not like to inflict upon the Committee. Paragraph 1 Schedule 1 states that investments are:
"Shares in the share capital of a company and stock in a company".
A note to the schedule states that this includes:
"any body corporate and also any unincorporated body constituted under the law of a country or territory outside the United Kingdom".
The extreme end of the spectrum, I can tell the Committee, is the Racing Club in Paris. It is an unincorporated body under French law. It issues certain certificates which I think probably could be regarded as stock. Are we saying in this schedule that participation certificates in the Racing Club, Paris, are in fact investments under this Bill? If we are, that is one way of defining them, but it seems to me to be going to extraordinary extremes. I can arrange for a number of different varieties of unincorporated bodies to be produced, in different jurisdictions, which would have the effect of creating instruments and be able to create instruments which seem to me to fall inside the schedule.
In making these remarks I should say at the outset that I do not fully understand the schedule. I have tried my best, but I find it an extremely difficult schedule to understand. If I have made a mistake, no doubt the noble Lord the Minister will correct me, but from my first reading, second reading and third reading of the schedule the rather ridiculous security I have in mind appears to fall within paragraph 1.
Paragraph 2 refers to certificates of deposit, but specifically excludes other bills of exchange. I assume that in excluding other bills of exchange it excludes bankers' acceptances—in other words, bills of exchange which are accepted by a bank. If you include certificates of deposit and exclude bankers' acceptances which are, broadly speaking, traded in the same market, there is a problem of definition which I find very difficult to understand. For example, there is no reference to blocked currency trading. I understand that deposits, bank notes, statements showing a balance in a current, deposit or savings account are excluded under paragraph 2. Nevertheless, there is a large trade in blocked currency. For the purposes of the debate I leave out barter, but there is a large trade in bartering which may or may not fall within the definition of paragraph 2.
In order not to weary the Committee I move on to the question of options. With options and futures we run into very serious trouble. Paragraph 7 refers to:
"Options to acquire or dispose of—
(a) an investment falling within any other paragraph of this Part of this Schedule; or (b)currency of the United Kingdom or of any other country or territory".
They are regarded as investments. Presumably options on the Financial Times Stock Exchange index, which are freely traded, and freely traded in New York and Chicago, are investments—or are they not investments? We do not know. Currency options traded between banks, as we learn from paragraph 18 of the schedule because they are dealings in financial institutions, are exempt because the two financial institutions will trade between themselves and therefore be exempt. But if a broker deals with a bank in any of these instruments, it appears that they fall within the schedule.
Again I must emphasise to noble Lords opposite that I have read this schedule several times with great care and I am trying to point out areas where my understanding may be quite wrong, but I have been a practitioner in these markets for about 20 years and it serves to demonstrate that if I cannot understand it, I am not sure how many people outside, without the benefit of great legal expertise, will be able to understand it.
On the question of futures, in regard to paragraph 8 of Schedule 1 I have been chased all over the country. Indeed, at the weekend I was chased to my home in mid-Wales by the chairman of the London Metal Exchange. He pursued me to say that they cannot accept paragraph 8 of Schedule 1 because it does not allow the London Metal Exchange to continue. He asked what he should do. I told him that it is not for the Labour Party to encourage the LME and that it is for him to go to the Government, to talk to the Government and make their point. I said that whether or not the Government accept his point is not my problem but his problem.
Finally, I refer to that part of the schedule dealing with investment business. Everyone will look at this from their own point of view and I looked at this in regard to myself. I declared an interest when the Patronage (Beneficiaries) Measure came before the House recently, that I was the financial adviser to Christ Church College, Oxford. I am also, as I declared at Second Reading, an adviser to the Banco de Bilbao. Therefore I am, I suppose, involved in advising on investments. But I am involved in advising Christ Church on investments not as part of my regular business, but simply because I happen to be a financial adviser to Christ Church. I ask myself whether I should be a member of some self-regulating organisation or something else which would entitle me to do so.
I ask the question with more point because although one of my other colleagues is a former director of a merchant bank and therefore can assume to be in the investment advisory business, my other colleague as financial adviser to Christ Church is no less a figure than the Secretary to the Cabinet. Then I ask myself: is the Secretary to the Cabinet in his capacity as advising on investments—it has all been cleared through No. 10 and it is all perfectly in order—to be a member of some sort of organisation and does he have to be authorised for the position?
The noble Lord, Lord Roll of Ipsden, made a series of observations on Second Reading about the Securities and Exchange Commission. He said that he thought that the SEC had been much maligned. He went on to say that he felt that the balance between the SEC and the various organisations that constitute the New York capital market had broadly slid into the sort of structure that we were trying to create in this Bill. I understood from him and from noble Lords opposite that we were trying to create a practitioner-based control, not control by legislation in detail.
Our solution to this is to try to get back to the Takeover Panel. The noble Lord, Lord O'Brien of Lothbury, referred on Second Reading to its creation. The advantage of the Takeover Panel was that it had enormous authority. That authority derived from the Bank of England, and in those days nobody challenged the authority of the Bank of England. The Takeover Panel was able to give guidance and say, "No, you cannot do this; you can do that, or you can do the other". It it got into trouble, it would make a code, and that code was universally respected. In those days nobody in the City of London would dare to go against the Takeover Panel.
In my view those days are past. Nevertheless it seems to me that in trying to preserve the flexibility of the markets, to allow them to function, we should have a body at the top that carries the same authority as did the Takeover Panel—in other words, the authority of government—but keep flexibility on how these markets should be handled, who issues guidance, and at what point. We should keep that very flexible.
Clearly, we have to have a big stick, and at the end of the day the body that is governing the securities markets must be able to say, "We wish to issue an order; we wish to have an order laid before Parliament because certain people are stepping out of line and we really want to get them back into line and seal up this particular loophole". I do not believe that such orders should be issued by subsidiary bodies without proper consultation with the Houses of Parliament, and our amendment provides for a mechanism whereby that might be done. It provides a mechanism not only for this type of order but indeed for other orders which may be promulgated from time to time by the supervisory body in the securities market. It should be very quick. Indeed, we have set out a procedure as to how it can be made very quick. Nevertheless, it should be properly commented upon by noble Lords and by Members in another place.
In saying all that, I recognise that I am somewhat disturbing the balance of the Bill and I recognise that the Government may well feel that the time has passed for such a radical change in the Bill to be introduced Yet I have to warn the Committee, and I speak as somebody who has been involved in the markets for close on 20 years of my life—and I refer to what my noble friend Lord Lever of Manchester said at Second Reading—that I believe that in this Bill we are in danger of getting all the disadvantages of a Securities and Exchange Commission with none of the advantages. I believe that we need to shift the balance back to a system of practitioner control underneath with a strong statutory body at the top. It is in that spirit that I beg to move the amendment.
I should like to say only a few words. I must say that to a considerable extent I am in agreement and sympathy with the points made by the noble Lord, Lord Williams, but I want to home in on one particular aspect of the Bill which I think falls to be discussed under Clause 1; though my noble friend may correct me if I am wrong in this respect.I must say, first, that apart from the noble Lord's, desire to draw the regulatory procedures back to scrutiny and clearance by both Houses of Parliament under his Amendment No. 46, I found a good deal with which to sympathise in his approach. I found it rather refreshingly different from the approach that 1 seem to remember the last Labour Government were inclined to adopt in matters of regulation. In particular, I sympathise with what the noble Lord has to say about the complexity of Schedule 1. For my part, I confess that I am lost in Schedule 1 and, like the noble Lord, I feel that a great many practitioners will also be lost. I do not want to delay the Committee at this stage, but the particular point that I wish to raise here is one that seems to me to be a matter of substance. The problem has been drawn to my attention by the Association of Corporate Treasurers. Clause 1(2) states:
It is the belief of the corporate treasurers—of course, it has been explained to my noble friend's department and has been the subject of extensive discussion with that department—that corporate treasurers will in fact find that their activities are in grave danger of being short circuited by these provisions of Clause 1. As they see it, the particular problem that arises is in regard to a transaction—for instance, the purchase or sale of a subsidiary company or the acquisition of a substantial interest in a company—in circumstances where, by the definition of his work, a corporate treasurer cannot be sure that he is making that acquisition as a permanency and not with the possibility that in the normal course of his activities in the finance department of a public corporation he may come to sell that investment again. In such a situation he may find himself acting apparently in breach of Clause 1 of this Bill. I have seen some of the correspondence between my noble friend's department and the Association of Corporate Treasurers and I have studied it with care. My noble friend will correct me if I have it wrong, but the impression that is created is that in the eyes of the Department of Trade and Industry there is no real reason for corporate treasurers to be worried because the Department of Trade would not dream of commencing criminal proceedings under the powers created in this Act, and in particular as a consequence of Clause 1, against corporate treasurers who were merely going about their normal business in that capacity. That is not what the Bill is for. However, as I understand it, the trouble is that it would be entirely open to a third person to commence civil proceedings for the annulment of a contract which, although it may be a perfectly logical and normal contract of a type that the corporate finance department of a large corporation would expect to transact in the normal course of business, might nevertheless possibly be shown to have been entered into under the terms which put it outside the limits of Clause 1 of this Bill The consequence of that would be that that contract could be rendered null and void and that an individual who won such a civil litigation could claim restitution of his original sale price, or purchase price for that matter. That would not be because there had been anything invalid in reality in the original contract but because he had discovered that the transaction had not worked out as he had expected, and understandably he wished to seize the opportunity provided by this legislation to retrieve his original error of judgment. As I understand it, the consequence is that there would be real anxiety that these contracts, which are part of the normal business of a corporate treasurer's department, would be open to suspicion as to whether they could be legally entered into at all. There is a real danger that substantial companies might even be obliged to move the centre of their activities overseas, unless some alleviation can be provided to the operation of Schedule 1 to the Bill in so far as it impinges on a group of this kind. I have thought it advisable to raise the matter at this point because it may well be that Amendment No. 3, in the name of the noble Lord, Lord Hacking, which is under discussion at the moment, goes a long way to meet the point. It would at least be a substantial alleviation if, instead of its referring to "any activity", it was a question of a single transaction which was unlikely or not expected to be repeated. Finally, I realise that my noble friend has tabled a number of amendments to Schedule 1 which we shall be discussing in due course. Inevitably it has not been possible to establish in full detail what will be the impact of the amendments. As I understand it, the impression of the Association of Corporate Treasurers is that, unfortunately, the amendments do not effectively meet the nature of the problem, although they go some way towards that. It is for that reason that I have not tabled amendments at this stage. I thought it more sensible to hear the explanations of my noble friend in due course when we come to those amendments and then consider whether it is necessary to seek to move further amendments on Report."For the purposes of this Act a person carries on investment business if by way of business he engages in any activity which falls within any paragraph in Part II of that Schedule and is not exluded by Part III of that Schedule".
I hope that the Committee will not accept the amendment. It is sensible to have the provision,
in a long Bill or statute of this kind. As one goes through it one may find that the definition of "investment" does not fit in with some of the later clauses. Unless there is a provision such as this, the court will be faced with a problem of repugnancy: the word "investment" is to mean such and such but it may not fit in with a later clause. It is sensible to have in the statute:"unless the context otherwise requires",
It is a sensible provision to have in a long statute of this kind. I add this. The schedule brings in a pattern which I have rarely seen before of paragraphs with notes attached. I should like to know the exact legal standing of the notes. As I read them, they are enactments; part of the statute and not merely notes for guidance. I should like that to be made clear. I have not heard specified what the status of a note is. I should like it made clear that the note is part of the enactment but for the sake of convenience is not put in as a subparagraph. Otherwise, I hope that the Committee will not accept the amendment; it might give rise to more trouble."unless the context otherwise requires".
I am most grateful to the noble Lord, Lord Williams of Elvel, for his opening remarks. This is a long and complicated Bill. He is right when he suggests that there will have to be a good deal of good will on both sides. I was glad to have his assurance that there is that good will on his side of the Committee and I should like him and other Members of the Committee to know that it is also on this side. Indeed, in his opening remarks my noble and learned friend said that we continue to be willing to consider matters that may arise during the course of our proceedings.We should start by recalling that the principal objective in the Bill is to have a practitioner-based self-regulatory system but within, and with all the force of, a statutory framework. If we start to move away from that first principle, I fear that we shall get ourselves into a good deal of trouble. I do not think that comparisons with the American exchange system are helpful. We have firmly set our face against that system. As I understood it, that was accepted by noble Lords on Second Reading. The noble Lord expressed difficulty in understanding the schedule and he posed a number of questions. He raised the question of the Paris Racing Club. I am not sure whether he raised the question of that institution and the Oxford college in a mischievous sense, but if the Paris Racing Club's stocks or shares were traded in the United Kingdom, they would have to be traded by an authorised person and conform to the rules. They would fall within the ambit of the Bill. Similarly, if the noble Lord had a paid position with the Oxford college, in which he advised it on investments, I think that that would be considered to be by way of business and he would have to be authorised. I can see no difficulty with that problem. The noble Lord asked whether the options on stock exchange indices were investments. They are; they fall within the definition of "contracts for differences", which he will see described in paragraph 9 of the Schedule. The noble Lord asked what will happen after Big Bang; will the precision of Schedule 1 be too rigid? Even the most erudite of commentators does not know what will happen after Big Bang, and I certainly do not. It is precisely because we recognise that new forms of investment business will emerge and new loopholes may need to be closed that we have provided in Clause 2 a power to change the definition of investment business. I agree with him that it would be wrong to enshrine those definitions in primary legislation, without the possibility of amendment. But that is no reason at this time to strike out all the definitions that the Bill contains. The noble Lord said that his amendments might create a disturbance to the balance of the Bill. They would delete the central definitions in the Bill—the definitions of "investment" and "investments business"—leaving those to be determined later. Not only would that leave the Bill without a central core; it would bring to a halt all the work that is going ahead, with a view to bring the new arrangements fully into force as soon as possible after Royal Assent. Without those crucial definitions, planning becomes impossible. I am quite sure that that cannot be what he wishes. That is hardly compatible with what is so frequently said in your Lordships' House; that too much is left to rules. I recall the noble Lord, Lord Bruce of Donington, reminding me of that when we had a similar, complicated Bill last year. He asked that more of the Government's intentions should be put on the face of the Bill and less left to rules. I pray that in aid this afternoon. I do not deny that Schedule 1 is complicated. That is a necessary reflection of the fact that the financial services sector is becoming increasingly complicated and will become more so. Any definition would have to be at least as complicated, wherever it was contained. Nothing would be gained in terms of clarity by adopting the noble Lord's proposal. We are bringing forward a number of amendments to Schedule 1. We may well need to make further amendments to the schedule on Report in the light of the debate on those amendments and of further comments from practitioners. The amendments, which we shall be discussing a little later, are the practical results of the Government's willingness to listen to and to respond constructively to comments on the Bill. The definitions are most certainly not easy, and it is not easy to decide exactly where the boundaries should be, especially with investment markets and products being so diverse. My noble friend Lord Bruce-Gardyne asked me about the position of corporate treasurers. The meaning of "engaging in any activity" is raised by Amendment No. 33, which is in a following group of amendments.
I apologise to my noble friend and to the noble Lord, Lord Hacking. I am afraid that I was looking at the wrong group of amendments. I was looking at the social security legislation. I accept entirely that the amendment about which I was talking is in a following group.
My noble friend and the Committee will no doubt be pleased if I keep my remarks on that point until we reach that amendment. I was glad to have the acceptance of the Bill as it stands by the noble and learned Lord, Lord Denning. He asked me what the status of a note was. A note contained within the provisions of the Bill has statutory force.I do not think that I can add anything further. I have explained why we need Schedule 1 and the definitions. I have explained that they can be changed by virtue of Clause 2. Clause 2 is in the Bill so that the definitions can be changed, brought up to date and made effective. I urge the Committee to reject this block of amendments.
Will the Minister be good enough to confirm one point which arose from his explanation? As I understood him, dealing with the position of the noble Lord, Lord Williams of Elvel, as investment adviser to Christ Church, he said that the test should be whether he receives any remuneration. That is as I understand it. Will he confirm that, because I have been asked by treasurers and others in universities what their position will be under the Bill? On university courts and councils people give a good deal of investment advice free of charge as treasurers. It may be that they are members of firms which indirectly may do business on behalf of the university, but, nevertheless, I should like to confirm, as I understood even before the Minister spoke, that the test of their position is whether they are remunerated, and that that would establish their position under the Bill. Is that right?
I used the term rather loosely as meaning "engaging in business". If someone is engaged in that business, whether as a member of a firm or as an individual, presumably he expects to be remunerated. That is how I use the term. The test is whether one is in business. If one is in business, one would have to be authorised. If one belonged to a company or a partnership which was engaged in business, that would come under the terms of the Bill. That company would have to be authorised. We shall come to this matter a little later in the Bill.It would then be for the company to register with one of the self-regulating organisations. It would then be for that self-regulating organisation to ensure that its rules were carried out. Its rules would ensure that the company conducted its affairs through its individuals in a proper way and in accordance with the rules. If, however, an individual is not within a company, but engages in that activity by way of business, he would have to be authorised. I hope that that gives a rather clearer definition.
These individuals are giving advice as a public service. They are not gaining anything from it. They are merely giving their services free of charge because they are knowledgeable people. I wanted to make it clear that those people would not fall within the Bill and would not have to be registered.
I wonder whether I may follow that point. I am chairman of a fairly large charity. There are people associated with companies who provide professional services for that charity. Because of the relationships which have grown up between the professional companies concerned and the charity, there are persons who are employees or partners in those professional companies who give their advice free of charge. I am slightly bewildered. I do not know whether the Bill covers people whose remuneration is undoubtedly derived from a company which is providing a financial service for professional fees but who are not in receipt of fees in relation to the advice that they give the charity.
If the Committee looks at paragraph 15 of Part II of the schedule on "Advising on investments" it will see:
That activity would constitute investment business for which the individual or company would have to be authorised. Paragraph 21, on page 151, under the heading,"giving, or offering or agreeing to give, advice as to the purchase, sale, subscription for or underwriting of investments or as to the exercise of rights conferred by investments"
states:"Advice given in course of profession or non-investment business"
If the adviser is not paid, he will not be giving advice by way of business, which is what I sought to establish in my first response to the noble Lord, Lord Grimond.
- "(1) Paragraph 15 above does not apply to advice—
(a) which is given in the course of the carrying on of any profession or of a business not otherwise constituting investment business; and (b) the giving of which is a necessary part of other advice or services given in the course of carrying on that profession or business".
I am grateful to the noble Lord, Lord Lucas, for clarifying that point. I am still in some doubt as to what the position is. I must declare that I receive no honorarium of any sort from Christ Church for giving it investment advice. I advise it on matters other than pure investment. Nevertheless. I am somebody who by virtue of other occupation:!; is involved in investment business.Even after following carefully what the noble Lord has said, so far as I can see I and my colleague who is a former director of Morgan Grenfell will fall within the ambit of the Bill, whereas the Secretary to the Cabinet, I fully understand, will not fall within the Bill's ambit. Unless the noble Lord can persuade me otherwise, I think that that is the right interpretation. I hope that the noble Lord will be able to help us on that matter at a later stage of the Bill. As the noble Lords, Lord Grimond and Lord Marsh, pointed out, it puts a number of people who give their services free of charge to institutions, for one reason or another, in considerable difficulties if they fall within this require-ment for registration. I hope that the Minister will be able to come with us a little on that point. The point made by the noble Lord, Lord Bruce-Gardyne, about corporate treasurers was well taken. It is a point which has been made on a number of occasions and it is right. I should not like him to think, however, that this is a Bill put forward by the Labour Party. As I said in my Second Reading speech, this is not the sort of Bill that the Labour Party, necessarily, would have brought forward. We do not expect to have many Labour votes in the City of London. Nevertheless, the Bill is there, and we shall scrutinise it meticulously and carefully, as is our proper duty as the Opposition. The noble and learned Lord, Lord Denning, concentrated specifically on my Amendment No. 1 which I regarded, I am afraid, in my innocence, as a paving amendment. If the noble and learned Lord, Lord Denning, objects to the amendment, I am happy not to have it considered. Maybe, it is right that statutes should have the words,
It is not something that is crucial to the thrust of:he amendments. Instead of moving Amendment No. 1 I would certainly be prepared to move Amendment No. 2. The noble Lord, Lord Lucas, thought that I might have been rather mischievous in citing the cases that I did. I was not trying to be mischievous. I was trying to raise genuine points at the margin of difficult legislation. It is these points at the margin that point up the difficulty of understanding the legislation. It was not at all in a mischievous spirit that I raised the issues of the Paris Racing Club or Christ Church, Oxford. I hope that the noble Lord accepts that. I accept fully what the noble Lord says about contracts for differences applying to the footsie options. It is simply that the language in which that is couched had, until then, somewhat escaped me. The question of whether Schedule 1 should be in the Bill or in the form of an initial order is a matter to which the noble Lord addressed himself. He wants it in the Bill. I should like it in the form of an initial order. 1 do not believe that it makes much difference as to how the SIB will plan its activities. It can certainly plan its activities, as it has been doing, on the basis of draft, draft rules and draft orders. I do not believe that this will create any great problem. I was interested to see that the noble Lord called in aid my noble friend Lord Bruce of Donington asking for more to be on the face of the Bill and less to be in rules passed in secondary legislation after the Bill has gone through. I come back to my central point. It is a point that the noble Lord, Lord Bruce-Gardyne, and I understand and appreciate, coming as we do, if I may say so, from somewhat different ends of the political spectrum. All of us agree, I believe, that what we are looking for, as the noble Lord, Lord Lucas, said, is a strong statutory superstructure—we should like it stronger—and a proper, practitioner-based control underneath which gives proper flexibility in the markets. We believe that the balance of the Bill is not quite right. We believe that the balance could be made better. We should like to test the opinion of the Committee on the matter."unless the context otherwise requires".
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 143.
DIVISION NO. 2
|Amherst, E||Jenkins of Putney, L.|
|Ardwick, L.||John-Mackie, L.|
|Attlee, E.||Kilbracken, L.|
|Barnett, L.||Kilmarnock, L.|
|Birk, B||Llewelyn-Davies of Hastoe, B.|
|Blease, L||Lockwood, B.|
|Blyton, L.||Longford, E.|
|Briginshaw, L.||McGregor of Durris, L.|
|Brockway, L.||McIntosh of Haringey, L.|
|Bruce of Donington, L.||Mackie of Benshie, L.|
|Carmichael of Kelvingrove, L.||McNair, L.|
|Chitnis, L.||Mais, L.|
|David, B [Teller.]||Marsh, L.|
|Davies of Penrhys, L||Meston, L.|
|Dean of Beswick, L.||Morris of Kenwood. L.|
|Diamond, L.||Morton of Shuna, L.|
|Donoughue, L.||Nicol, B.|
|Elwyn-Jones, L.||Ogmore, L.|
|Ezra, L.||Phillips, B.|
|Fisher of Rednal, B.||Pitt of Hampstead, L.|
|Fitt, L.||Ponsonby of Shulbrede, L.|
|Gallacher, L.||Rea, L.|
|Gladwyn L.||Rochester, L.|
|Glenamara, L.||Seear, B.|
|Graham of Edmonton, L.||Sefton of Garston, L.|
|Gregson, L.||Shepherd, L.|
|Grey, E.||Silkin of Dulwich, L.|
|Grimond, L.||Simon, V.|
|Hampton, L.||Stallard, L.|
|Hanworth, V.||Stedman, B.|
|Hams of Greenwich, L.||Stewart of Fulham, L.|
|Hatch of Lusby, L.||Stoddart of Swindon, L.|
|Hayter, L.||Strabolgi, L.|
|Heycock, L.||Taylor of Blackburn, L.|
|Hughes, L.||Taylor of Mansfield, L.|
|Jeger, B.||Tordoff, L.|
|Underhill, L.||Williams of Elvel, L.|
|Wallace of Coslany, L.||Wilson of Rievaulx, L.|
|Wells-Pestell, L.||Young of Dartington, L.|
|Airey of Abingdon, B.||Lindsey and Abingdon, E.|
|Aldington, L.||Long, V.|
|Ampthill, L.||Lucas of Chilworth, L.|
|Auckland, L.||Lyell, L.|
|Bauer, L.||McAlpine of Moffat, L.|
|Belhaven and Stenton, L||McFadzean, L.|
|Beloff, L.||Macleod of Borve, B.|
|Belstead, L.||Mancroft, L.|
|Benson, L.||Margadale, L.|
|Bessborough, E.||Marshall of Leeds, L.|
|Birdwood, L.||Masham of Ilton, B.|
|Blake, L.||Maude of Stratford-upon-|
|Boardman, L.||Avon, L.|
|Boyd -Carpenter, L.||Merrivale, L.|
|Brabazon of Tara, L.||Mersey, V.|
|Brocket, L.||Milverton, L.|
|Brougham and Vaux, L.||Molson, L.|
|Broxbourne, L.||Monk Bretton, L.|
|Bruce-Gardyne, L.||Morris, L.|
|Buckinghamshire, E.||Mottistone, L.|
|Caithness, E.||Mowbray and Stourton, L.|
|Cameron of Lochbroom, L||Munster, E.|
|Campbell of Alloway, L.||Murton of Lindisfarne, L.|
|Carnegy of Lour, B.||Napier and Ettrick, L.|
|Carnock, L.||Nathan, L.|
|Chelmer, L,||Newall, L.|
|Coleraine, L.||Norfolk, D.|
|Constantine of Stanmore, L.||Onslow, E.|
|Cowley, E.||Orr-Ewing, L.|
|Craigavon, V.||Pender, L.|
|Cullen of Ashbourne, L.||Penrhyn, L.|
|Davidson, V.||Perth, E.|
|Denham, L. [Teller]||Peyton of Yeovil, L.|
|Digby, L.||Plummer of St|
|Dilhorne, V.||Marylebone, L.|
|Drumalbyn, L.||Portland, D.|
|Elibank, L.||Rankeillour, L.|
|Elles, B.||Reay, L.|
|Elliot of Harwood, B.||Redesdale, L.|
|Elliott of Morpeth, L.||Reigate, L.|
|Elton, L.||Renton, L.|
|Erroll of Hale, L.||Richardson, L.|
|Faithfull, B.||Romney, E.|
|Ferrers, E.||Russell of Liverpool, L.|
|Foley, L.||St. Aldwyn, E.|
|Fortescue, E.||St. Davids, V.|
|Fraser of Kilmorack, L||Saint Oswald, L.|
|Gainford, L.||Salisbury, M.|
|Gardner of Parkes, B.||Saltoun of Abernethy, Ly.|
|Glanusk, L.||Sandford, L.|
|Glenarthur, L.||Sempill, Ly.|
|Gray of Contin, L.||Shannon, E.|
|Greenway, L.||Sharpies, B.|
|Gridley, L.||Skelmersdale, L.|
|Hailsham of Saint||Stodart of Leaston, L.|
|Marylebone, L.||Strathcarron, L.|
|Harmar-Nicholls, L.||Strathclyde, L.|
|Harvington, L.||Strathcona and Mount Royal,|
|Henderson of Brompton, L.||L.|
|Hives, L.||Sudeley, L.|
|Holderness, L.||Swinton, E. [Teller]|
|Home of the Hirsel, L.||Terrington, L.|
|Hood, V.||Teynham, L.|
|Hooper, B.||Tranmire, L.|
|Hylton-Foster, B.||Trefgarne, L.|
|Inglewood, L.||Trumpington, B.|
|Ingrow, L.||Vaux of Harrowden, L.|
|Kaberry of Adel, L.||Vickers, B.|
|Kimball, L.||Vivian, L.|
|Kimberley, E.||Whitelaw, V.|
|Kitchener, E.||Wynford, L.|
|Lane-Fox, B.||Ypres, E.|
|Lawrence. L.||Zouche of Haryngworth, L|
Resolved in the negative, and amendment disagreed to accordingly.
moved Amendment No. 3:
Page 2, line 2, leave out ("any activity which falls") and insert ("activities which fall").
The noble Lord said: This amendment directs attention to a problem concerning the definition of the words "carries on an investment business". The amendment which I shall also move as Amendment No. 5 in the Marshalled List directs attention to the same problem, and with the leave of the Committee I shall make my comments on both these amendments as I address the Committee.
The problem arises first of all on the domestic front, if I may describe it in that way, with the definition in subsection (2) of the Bill concerning the carrying on of an investment business by, say, a company which is normally resident in the United Kingdom and which is normally transacting business in the United Kingdom. The definition in subsection (3), which goes to Amendment No. 5, concerns the definition of carrying on an investment business by persons who are abroad but who nonetheless transact business in the United Kingdom. It is plain that, if the Bill is to reach our statute books, persons regularly carrying on investment business in the United Kingdom, whether based here or coming to this country regularly to carry on investment business, should fall under the terms of this Act. There will be no difficulty, I think, in accepting that proposition.
Equally, in my submission, there should be no difficulty in accepting the proposition that a single, one-off transaction, whether carried out by a person or persons in the United Kingdom or person or persons coming from abroad, should not fall under the provision of this Act, for there would be enormous complications for an ordinary industrial company, whose main business has nothing whatever to do with investments, if it should be compelled to become an authorised person and fall under the regulations of the Bill for a single transaction. The same point applies to persons coming from abroad to carry out a single transaction.
The difficulty is that, in seeking to find the right definition, the Bill as drafted reads in this way:
"a person carries on investment business if by way of business he engages in any activity which falls"
within the specifications in Schedule 1. As the Bill is now drafted, this would, in my submission, mean that a single transaction, whether carried out by a person or company within the United Kingdom or from abroad, would fall under this definition as set out in Clause 1.
I simply say that this cannot be the intention of the Bill, and if my amendment has not struck the right definition then perhaps the Government and the Minister could look again at the drafting of the Bill and recognise that the problem does exist and give it further consideration. That is indeed my purpose in moving this amendment. I have no intention of dividing the Committee on any definition point. I merely seek the co-operation of the Government in recognising that this problem exists and should be dealt with.
Perhaps I may just give one example of the problem. An industrial company has a joint venture with another company and acquires shares in the joint venture vehicle on behalf of the joint venturer. This would then fall within paragraph 12 of Schedule 1, which is the paragraph dealing with investments. It would therefore not be entitled, in a manufacturing business which has nothing whatever to do with investments, to take itself out under any of the exceptions continued in Schedule 1. I merely give that as an example so that the Committee may see how the problem could arise. It is that type of problem that I seek to draw to the attention of the Government in asking the Minister to look again at the definition of carrying on an investment business.
I should like to apologise once again to the noble Lord, Lord Hacking, for jumping the gun on this amendment owing to my misapprehension as to the nature of the grouping on the previous amendment moved by the noble Lord, Lord Williams. Since in effect I have already spoken to this amendment, I do not intend to weary the Committee by repeating my remarks.I know that my noble friend the Minister has heard the comments I made in this context with particular reference to the position of corporate treasurers, and all I wish to add to what has been said is that I have to confess that it is my impression, from the corespondence that I have seen between my noble friend's department and the corporate treasurers, that it is indeed the intention of the department to catch the single transaction. I believe that unless that is changed it will indeed have the thoroughly undesirable consequences which the noble Lord has referred to in reference to industrial companies and the like, which are not in the investment business as such but which may, in the natural course of their business as industrial companies, be involved in one-off transactions. I shall therefore listen with considerable care and interest to my noble friend's response, and I hope that the optimism of the noble Lord, Lord Hacking, on the point turns out of be justified.
I am grateful to the noble Lord, Lord Hacking, for explaining the purpose of his Amendments Nos. 3 and 5. I am also very glad he acknowledges that there are a great number of difficulties in getting this absolutely right. Perhaps I may say this to the noble Lord. We have been aware of the concerns that have been expressed by the Law Society and the Association of Corporate Treasurers about the use of the word "activity". It has been suggested that this might mean that a person could be regarded as carrying on investment business in the United Kingdom if by way of business he carried out a single transaction within Part II of Schedule 1 to which the exclusions in Parts III and IV do not apply. That is certainly not the intended effect of the Bill; nor do we think that it is the actual effect.I am advised that the word "engages" carries with it an implication of continuity, or at least of repetition. As a result we believe that the clause should not be construed as meaning that a person is to be regarded as carrying on investment business in the United Kingdom if very occasionally he does something which amounts to an activity within Part II of the schedule and which is not excluded by Parts III and IV. In answer to the point raised by my noble friend Lord Bruce-Gardyne, we have brought forward several amendments to Schedule 1 to meet most of the points raised by the Association of Corporate Treasurers. We do not believe, as the Bill stands, that they will now be caught. If there are still some points of detail where they think that they may inadvertently be caught, we should be very happy to look at this again. We accept that there is still concern about unenforceability provisions in Clause 5. Perhaps when we turn to amendments to Clause 5 I shall be able to say something fairly sympathetic. If the advice I have is correct—that the word "engages" carries an implication of continuity, or at least of repetition—I believe that is somewhat different from the point about "on occasion". I believe therefore it is fairly clear. I hope that that explanation will satisfy the noble Lord.
I am partly satisfied. I say that out of no sense of ingratitude to the Minister. I am certainly satisfied to hear him say that it is not the intention of the Government to deal with the one-off transaction. That was the concern I was expressing to noble Lords when making my comments upon my amendment. However, I am not entirely satisfied with the explanation given by the Minister that "engages" carries some continuity. Perhaps when reference is made to matrimonial engagement there is some intention of continuity there. But in the normal sense of the word, if a person engages in a fight, or engages in a project, that engagement—if it has continuity—has continuity for the completion of that combat or transaction.With great respect to the Minister—I have not had time to lay my hand on my Concise Oxford Dictionary—I think that he is seeking to impart a meaning into the word "engages", with the exception of the matrimonial engagement, which does not normally exist in the English language. For that reason I should have been much happier to hear the Minister say that he would give the point further consideration.
The noble Lord has confirmed that it was not his department's intention to go for the single transaction, contrary to the concept that was put forward by the noble Lord, Lord Bruce-Gardyne. On the assumption that the noble Lord is not concerned with engaging in the single transaction, is not the easiest way, for the avoidance of doubt, to accept the word "activities" as put forward in the amendment? It seems a simple way of solving the Government's own problem.
Like the noble Lord, Lord Bruce-Gardyne, I have been approached by the Association of Corporate Treasurers. They are concerned—in spite of" what they have seen of the proposed Government amendments—about their position under this proposed legislation. The Bill, while seeking to provide proper safeguards for investors nevertheless does not extend those safeguards to the point of frustrating other activities. There is grave concern among these people that some of the things they do in the normal course of their business could be caught. I believe that the amendment proposed by the noble Lord, Lord Hacking, could go a long way to making them feel more confident that they can nevertheless continue in their present activities without fear of the consequences under this legislation.
If the Government rest their case on the words "engages in", it seems to me that they are resting it on sand. I agree with the noble Lord, Lord Hacking, that to say that one engages in an activity cannot reasonably be construed as a continuous activity in the sense that the noble Lord the Minister has suggested. At the same time I do not myself think that the plural which the noble Lord, Lord Hacking, seeks to insert cures the difficulty to which he has drawn attention—quite apart from anything else because of the provisions of the Interpretation Act.It seems to me necessary for the Government to look at this subsection again and to come up with a better solution to the problem. One is tempted to try to draft on one's feet, but if one did so, one would make a mess of it. I should have thought that the term "normal business", or something similar, might help the Government to find a formula which may solve the problem.
Before my noble friend replies, may I say that I am very grateful to him for the reassurance he has been able to give. One will obviously want to study that carefully. However, I notice that he first said that "engages in" could not be construed in terms of "very occasionally". He subsequently said that it could not be construed in terms of "occasionally". It seems to me that one needs to be reasonably clear what weight the Government would seek to put on the word "engages" and the frequency which would be involved.The noble Lord on the Opposition Front Bench has referred to continuity of activity. That is carrying it a good deal further still. I do not know whether at this point my noble friend can specify this a little more clearly. It seems to me that that is one aspect of his reassurance which will need to be carefully scrutinised.
I shall resist the temptation that my noble friend Lord Bruce-Gardyne offers me to speculate on my feet. I hoped to satisfy the noble Lord, Lord Hacking, with the description I gave of how we saw the word "engages". He, however, is not satisfied. I also hoped that he might have come up with an alternative, but he has not done so this evening.I invite the noble Lord, as I invite noble Lords in all parts of the Committee, to help us because, as I said, we have had enormous difficulties. The alternatives proposed to date have as many difficulties as those that Members of the Committee have posed. For example, the noble Lord, Lord Bruce of Donington, asked: why can we not satisfy ourselves with the word "activities"? Referring to "activities" would we think cast some doubt on whether it was necessary to undertake more than one kind of the investment activity listed in Part II of Schedule 1. For example, would someone be carrying on investment business if he only gave investment advice and did not undertake other kinds of investment activity? Therefore, here is another problem, and I think that the noble and learned Lord, Lord Silkin, appreciated that. I recognise that the noble Lord, Lord Ezra, still has some doubts. Although I underline that there are very many difficulties, I shall certainly give some further thought to see what can be worked out and to see whether we can find a satisfactory alternative. However, I must say that, in all honesty, I cannot promise to bring back something at Report. If I can, I most certainly shall; if I cannot, then the Members of the Committee will appreciate that we have not found a satisfactory alternative.
With the assurances of the noble Lord the Minister that he will give this problem further consideration, that he will receive further represent-ations and that the dialogue is to continue, I am only too happy to withdraw my amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 4 not moved.]
had given notice of his intention to move Amendment No. 5:
Page 2, line 9, leave out ("any activity which falls") and insert ("activities which fall").
The noble Lord said: I have already addressed the Members of the Committee on this amendment, and we have heard the noble Lord the Minister reply that he is prepared to consider it. In view of the comments made by the noble Lord the Minister, it is not my intention to move this amendment.
[ Amendment No. 5 not moved.]
[ Amendments Nos. 6 and 7 not moved.]
Clause 1 agreed to.
Schedule 1 [ Investments and investment business]:
moved Amendment No. 8:
Page 146, line 7, leave out paragraph 1 and insert ("Shares and stock in the share capital of a company.")
The noble Lord said: We now come to the heart of the definition of "investment", and this is the first of a number of amendments that have been tabled by myself and other noble Lords, including the noble Lord the Minister, which relate to the definition of "investment". This is a purist amendment. Paragraph 1 of Schedule 1 currently reads:
"Shares in the share capital of a company and stock in a company".
Stock, therefore, as drafted, at present is not related to the share capital but to the stock in the company itself. Under that definition this would include stock such as debenture stock and loan stock, which fall to be dealt with under paragraph 2. My amendment, which I have just described as a purist amendment, seeks to make it quite plain that paragraph 1 of Schedule 1 seeks only to deal with the matter of share capital. Hence my amendment reads:
"Shares and stock in the share capital of a company".
Therefore, I believe that my amendment gets rid of that difficulty and that paragraph 1 can fly under its own flag, as can paragraph 2. I beg to move.
The noble Lord, Lord Hacking described his amendment as being purist. For myself, I cannot see any difference in substance between what is in the Bill and the noble Lord's amendment, but if the noble Lord believes that his words express the intention behind the paragraph more clearly, I am quite happy to accept his amendment.
On Question, amendment agreed to.
moved Amendment No. 9:
Page 146, line 21, after ("acknowledging") insert ("or creating").
The noble Lord said: This amendment excludes from the definition of "investment" promissory notes issued in connection with the supply of goods and services. It reflects concerns, which were expressed by, among others, the Association of Corporate Treasurers, that without it activities necessary for the efficient conduct of inland and international trade in goods and services would inadvertently be included within the definition of "investment business". I beg to move.
On Question, amendment agreed to.
moved Amendments Nos. 10 and 11:
Page 147, line 15, leave out ("Note") and insert ("Notes) (1)".
Page 147, line 19, at end insert—
(" (2) The reference in paragraph (b) above to a right does not include a reference to a right the exercise of which or failure to exercise which will not or, in the case or a right to vote, cannot result in the person entitled to it acquiring, disposing of, retaining or converting an investment.").
The noble Lord said: I beg to move Amendments Nos. 10 and 11, and to take with them Amendments Nos. 20, 21, 36, 37, 38 and 39.
Amendment No. 21?
With the leave of the Committee, I shall move Amendments Nos. 10 and 11, and speak to Amendments Nos, 20, 36, 37,38 and 39.
Perhaps the noble Lord the Minister would clarify the amendments that he is moving. He did say that he would like to move Amendment No. 21, and I am quite happy for him to do so.
I think I said that I would speak to it. Perhaps it may be more helpful to the Committee if I took the other group—that is, the amendments beginning with Amendment No. 20—a little later on and now merely dispense with Amendments Nos. 10 and 11, which are a straight-forward pair of amendments. Paragraph 5 of Schedule 1, as drafted, was considered to be wide enough to include such documents as proxy forms, and that certainly was not our intention. These amendments, Nos. 10 and 11, narrow the definition accordingly. If the Committee agrees, perhaps it would be best if I just move Amendments Nos. 10 and 11 at this stage.
On Question, amendments agreed to.
moved Amendments No. 12 and 13:
Page 147, line 26, leave out ("or").
Page 147, line 28, at end insert ("; or (c) gold or silver.").
The noble Lord said: These two amendments extend the definition of "investments" to include options on gold and silver. The Bill already applies to gold and silver futures; gold and silver options are also traded and are very similar to futures. It has been suggested to us that bringing them within the regulatory regime will make it easier to sell United Kingdom options abroad, particularly in the United States of America. In the light of these recommen-dations, we suggest that the Bill should be extended to cover both these options. I beg to move.
Could the noble Lord tell us whether the Bill also covers options on other precious metals, such as platinum, and other metals traded on the metal exchange, such as aluminium, copper, tin and others?
My understanding is that it does. If by any chance I am wrong, then I shall correct it.My understanding now is that platinum and other minerals are not included since they come under the heading of "futures".
I am sorry to press the noble Lord on this, but as he knows there is a difference between a future contract and options. There are gold future contracts and there are silver future contracts, and there are gold options and silver options. There are also aluminium futures and aluminium options; platinum futures and platinum options; and, indeed, options, so far as I know, on other precious metals. May I ask for a small clarification of this? May I take my time at the Dispatch Box asking for this information in the hope that advice can arrive from a certain quarter to clarify that issue?
I think I was right first time in that I am advised that futures on any metal or other commodity are within the ambit of the Bill, but options on metals other than gold and silver are out. This amendment seeks to extend the definition to include options on gold and silver. I do not think the advice I have given the noble Lord is any different.
In that case would the noble Lord consider extending this amendment at a later stage to include options on platinum and other precious metals, which are indeed traded?
I must say yes to the noble Lord because I can think of no very good reason for saying no. We shall certainly give consideration to what he has said.
On Question, amendments agreed to.
moved Amendment No. 14:
Page 147, line 29, at end insert—
("Note. Instruments falling within paragraph 4 above do not fall within this paragraph. It is immaterial whether the investments for the time being are in existence or identifiable.")
The noble Lord said: I hesitate to dub this amendment as a purist amendment in view of the response (although the noble Minister accepted my last amendment, which I described as purist) and in view of the lack of enthusiasm with which the Minister treats my purist amendments, but this amendment has some purity because it seeks to perform the same exercise as my earlier amendments; namely, to clearly divide the definitions under paragraphs 4 and 7 of Part I of Schedule 1 so that, in the terms I used just now referring to paragraphs 1 and 2, each of these two paragraphs and the definitions contained in them clearly fly under their own flags.
This amendment seeks that clarification in the form of the addition of a note to paragraph 87. The Committee will see in Schedule 1, Part I, that many paragraphs are bestowed with a note provided by the Minister's department by way of seeking greater clarity for those paragraphs. However, paragraph 7 is one of the few paragraphs that does not carry a note, and in my submission it needs one.
It needs one because paragraph 7 uses the expression "Options to acquire" a share, which could include an option to subscribe for a share. Options to subscribe are, however, covered by paragraph 4 of Schedule 1. It is important that there should be a clear distinction between investments which fall within paragraph 4 but not within paragraph 7, and vice versa. By way of example, sub-paragraphs 5( a) and 17(2) or 19(2) apply to investments falling within paragraph 4 but not to investments within paragraph 7.
Incidentally, the second sentence in the proposed note under paragraph 7 follows the terms of the note which presently appears under paragraph 4. It would seem to be sensible that that second sentence should also be added, but the important one is the first one, namely:
"Instruments falling within paragraph 4 above do not fall within this paragraph";
that is, within paragraph 7 of this schedule. I beg to move.
In the hope that I might be described as a purist, I support this amendment. It seems essential that things that come under paragraph 4 should not be under paragraph 7 as well, and vice versa. I strongly support the amendment.
I assume that the noble Lord wished to deal with Amendment No. 41 at the same time, since they deal with much the same problem—that of overlaps. Amendment No. 41 refers to page 153, line and is concerned with much the same problem of overlap. I am grateful to the noble Lord for raising the matter.I do not think that in general terms it matters very much whether an investment falls within more than one paragraph. Given the nature of some investments, some overlap may be quite unavoidable; but certainly there are some provisions of the Bill which relate only to particular paragraphs in Part I, and it is clearly important to avoid overlap between paragraphs which are, and which are not, covered by particular provisions. A particular case arises in relation to paragraphs 4 and 7; however, there may be others. I do not think that the noble Lord's Amendments Nos. 14 and 41 solve the problem in a totally satisfactory way, but I am happy to undertake to consider the point further. Perhaps we could discuss this and come forward with appropriate amendments at Report stage.
I did not realise that the noble Lord, Lord Hacking, was also speaking to Amendment No. 41.
No, I was not. I did not interrupt the Minister, but may I address the Committee separately on Amendment No. 41? In view of the reply given by the noble Minister, I am only too happy to withdraw this amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 15:
Page 147, line 37, at end insert—
(" () Any contract for the purchase or sale of currency, other than a contract made or traded on a recognised investment exchange or a contract expressed to be one made for investment purposes, shall be regarded as made for commercial purposes if at least one party to it is a recognised bank or licensed institution within the meaning of the Banking Act 1979.")
The noble Lord said: In the absence of my noble friend Lord Colville, who has to be away for an hour or so, he has asked me to move this amendment, which I gladly do. The Bill in its present form excludes from its provisions contracts for the sale of currencies, or indeed the purchase of currencies, including foreign exchange contracts, if they are made for commercial purposes. A problem in drafting has been to define clearly which transactions are for commercial purposes and which are for investment purposes. I recognise the problem that my noble friend had in trying to find satisfactory wording for this.
The amendment is intended to suggest what I hope might be considered an appropriate wording for making that distinction. It seeks to clarify the position by posing three clear questions. First, if the particular property, which of course is currency in this case, is traded on a recognised investment exchange, it is clearly for investment purposes and comes within the Bill. If the transaction is clearly expressed to be for investment purposes, then again obviously it is for investment purposes and comes within the Bill. But if it is neither traded on a recognised investment exchange nor expressed to be for investment purposes, and if at the time it is made one of the parties to the contract is a bank or licensed institution under the Banking Act, it is deemed to be for commercial purposes and would be outside the terms of the Bill.
This may seem rather complex. Perhaps the easier way of showing the distinction is to say that an ordinary forward currency purchase made by someone so that he can cover goods to be supplied at a future date—a normal trading transaction for a specific purpose—that would be for commercial purposes and was made with a bank or a licensed institution, would be outside the province of the Bill, whereas the purchase of futures on one of the recognised exchanges is clearly within the Bill and would be a trading in investment futures, currency futures, and the like with a recognised exchange. That would be for investment purposes and within the Bill.
I hope that my noble friend may be able to improve on this amendment, but I believe that it shows one method of dealing with this point which is in the Bill itself but which is very unsatisfactory. It gives notes suggesting criteria that can be applied, criteria which I suggest would be extremely difficult, and the amendment proposed by my noble friend clarifies this in a way which I believe would be helpful. I beg to move.
I perfectly understand the motives of the noble Viscount, Lord Colville of Culross, and his noble friend Lord Boardman in moving this amendment. I fully understand that the Bill as drafted poses a major problem in defining what is commercial and what is not commercial. This is the problem that I referred to in speaking to Amendment No. 1 which is bothering the London Metal Exchange and other dealers because the fact of the matter is that dealers, whether in banks (if I may say so to the noble Lord, Lord Boardman), or other institutions, mismatch their forward currency book. Indeed, it is part of the function of a foreign exchange dealer in a bank to mismatch that book.I am unclear as to whether we are dealing with the dealer who is mismatching on the basis that he wishes to make an investment because he had originally a commercial contract to hedge and he decides to accept that contract, and on the other side he lays that off with somebody else at a different maturity and therefore it becomes an investment contract; or whether we are dealing here in this amendment only with banks which deal only on a spot basis and are required to make a contract for commercial reasons to hedge a foreign currency exposure for, say, an export, as the noble Lord has indicated, and which lay off that contract on exactly the same maturities with other financial institutions; or whether we are dealing with something broader. I am unclear about the whole thrust of paragraph 8 of the schedule, and I am afraid that I am somewhat unclear about the amendment moved by the noble Lord, Lord Boardman.
I should like to support this amendment. It is quite clear that there will be difficulty in applying these notes as to futures. In view of that this amendment would enable people to solve the problem without any difficulty. So in order to save all sorts of difficulties and arguments in the future it will be a good thing to have this amendment. I hope that the Committee will support it.
I too should like to support my noble friend's amendment, but I should like to raise one query about the stipulation that one party is to be a recognised bank or licensed institution. I have the feeling that in the case of commercial transactions of the kind which are designed to be covered by the amendment industrial and other non-financial companies might well not normally have a bank or licensed institution, within the meaning of the Banking Act, as the opposite party in the transaction. Therefore even the amendment as it stands might be drawn too tightly to meet the needs of genuine commercial transactions.
I am grateful for the support from the noble and learned Lord, Lord Denning. I note the points made by the noble Lord, Lord Williams, and by my noble friend Lord Bruce-Gardyne. Whether my noble friend the Minister will feel able to extend the definition to meet my noble friend's point I know not. In practice the definition of one party being a bank or a licensed institution under the Banking Act is adequate for all practical purposes. One thing I am quite certain it is desirable to do is to ensure that there is clarity so that people know when these transactions are entered into, whether within the Bill, or the Act as it will be, or outside it. That I hope would be achieved by this amendment or something on similar lines.
I am glad that my noble friend Lord Boardman has explained so clearly what is worrying him. However, the proposed amendment would exempt futures contracts for currency whenever one of the parties was a bank or licensed institution, irrespective of the customer and irrespective of the size of the transaction. I think this goes much too far. It appears to me that the amendment proposes to remove from the protection offered to the investor by this Bill any futures contracts in currency entered into by a bank or a licensed deposit taking institution. If they make contracts with private investors, there will be no statutory protection of any kind. As I have said, this goes too far, I think there is a difference because the intention of the Bill is not to interfere with genuine commercial contracts, in the normal sense of a commercial contract which has no investment purpose.The problem that paragraph 8 seeks to tackle is that many future contracts made for investment purposes (which include hedging and speculation) are identical to forward delivery contracts where the intention of the parties is that delivery is contemplated. The point made by the noble Lord, Lord Williams, and by the noble and learned Lord, Lord Denning, with regard to dealers who mismatch their books and so hedge their commercial contract is that the definitions are designed to provide the basis of the Bill's requirement that those offering the future contracts defined in paragraph 8 will need to be authorised. Paragraph 17(2) clarifies those who do not need to be authorised. But as I said, the amendment goes too far. I do not accept that the amendment offers the clarity that noble Lords wish. We believe, for example, if one took an agricultural contract for physical commodities, that if they were expressed in the form described in note (3)(c), that would not be conclusive that they are investments, because each of the indications should be interpreted together. You cannot take them separately. The more the indications point towards an investment purpose, or the more they point, as they well might, to a commercial purpose, the stronger is the pointer as to the category of contract. The indications are pointers, but they are not proofs. I am quite happy to give further consideration to this matter, but I have to say, as I have before, that I can see no easy solution, since we have examined this previously and we have had consultations. In the light of what I have had to say, if any noble Lord wishes to consult even further, let us do that to see whether between us we can find something a little more appropriate for a later stage in the Bill.
Perhaps I may intervene on this point. I agree with the noble Lord, Lord Boardman, that there is a problem here. Personally, I am not entirely happy that his amendment actually deals with it, and in that I join with the noble Lord the Minister. Nevertheless, there is a problem. I think one has to recognise the problem, which is that one starts off with a clear commercial transaction and at the end of the day one may have a series of transactions linked to the original commercial transaction which, in the context of the Bill, defines investment. I think that is the problem which perhaps the Government may like to think about in the intervening period.
I am grateful to my noble friend for saying that he will look again at this matter. Certainly we shall see whether, with him we can find some wording which meets his reservations and at the same time meets the very real difficulty which I believe otherwise arises. With that, I beg leave to withdraw the amendmentAmendment, by leave, withdrawn.
moved Amendment No. 16:
Page 149, line 17, at end insert—
("Note. This paragraph does not apply to the interests of members of an occupational pension scheme in the investments held for the purposes of the scheme.").
The noble Lord said: I beg to move Amendment No. 16, the purpose of which is to make clear that rights under an occupational pension scheme are not to be regarded as investments for the purpose of the Bill. If they were regarded as investments, an employer promoting an occupational pension scheme to his employees or advising his employees as to their rights under a scheme might have to be authorised. That is not what is intended, as I think the amendment makes clear. I beg to move.
This is a useful clarification which the Government are putting forward. I wonder whether there are further clarifications that are required on this particular paragraph, paragraph 11 of the schedule. The noble Lord has pointed out that a member of an occupational pension scheme has an interest in the investments held for the purposes of the scheme but such an interest should not be deemed (in the words of his amendment) to be an investment.Leaving aside the whole question of the role of trustees and whether they have an interest in occupational pension schemes which, for the purposes of this Bill, should be deemed to be investments, may I perhaps widen the discussion and ask him whether other people who may have rights to and interests in anything which is an investment which falls within any other paragraph of this part of the schedule, will be caught? He talks about members of occupational pension schemes. What about, for instance, heirs under a testament? Suppose that a noble Lord decides to leave in his will an investment which falls within that part of the schedule to his son or his daughter or whoever it may be. Is that to be construed as the son of the daughter having an interest in the investment which falls within this part of the schedule? I do not mean to raise that in a mischievous way. I am simply trying to illustrate a point that I made on the first amendment: that we have enormous difficulty in construing these points. My noble and learned friend Lord Silkin no doubt will wish to comment upon some of the trustee aspects.
As I understand it, there are already provisions with regard to the beneficiaries and I believe they are covered under another Act so far as the transfer of their interests is concerned where a company or an occupational pension scheme is in force. I do not see that there is any difficulty there. The interest merely transfers because they have the right which is set up, I think, under one of the investment protection Acts or, it may be, in one of the company pension and investment Acts. It escapes my mind which Act it is, but I recall that there is provision which determines the various interests of people such as the noble Lord has described.I am advised that an interest in investments under a will or a trust will constitute an investment, but unless it is or can be bought or sold there would be no investment business; so that the transference to which I referred earlier applies.
On Question, amendment agreed to.
moved Amendment No. 17:
Page 149, line 17, at end insert—
(" . Real property of any type or description, except residential property, wherever situated and whether or not subject to encumbrances.").
The noble Lord said: I beg to move this amendment. It is a very simple one. It aims to bring real property, except residential property, within the scope of Part I of Schedule 1. The reason for that is that a very large amount of money is currently invested in property. It is estimated to be something of the order of £12 billion. So far as pension funds are concerned, some 10 per cent. of their investments are in property. The National Association of Pension Funds is very keen that this form of investment should get the same sort of protection and measure of benefit as come to the safeguards provided for other forms.
I recognise that there is great difficulty in identifying property obtained for investment purposes and property obtained for other purposes. We have simply left out residential property in the proposition, but there could be other exemptions. I hope that in the circumstances the noble Lord will be prepared to have a look at this matter and come forward with some suggestions at a later stage. I beg to move.
I should like to support the amendment moved by the noble Lord, Lord Ezra. He has already indicated the volume of investment from pension funds that is in property. It is very considerable. Perhaps due heed should be paid to the respresentations of the National Association of Pension Funds, who have drafted this particular amendment which stands in our names. It is a considerable concern of theirs that in meetings of pension fund trustees, where invariably you have investment managers round the table, you have an investment manager on UK securities, perhaps another one sitting there with international securities, and a property adviser advising the trustees. But while the securities advisers obviously will come within the scope of the Bill and will be supervised, the man who is dealing with property, in which there is a very considerable investment, will be free from any such supervision under the Bill.It may be said that you take advice from the Royal Institute of Chartered Surveyors—and this amendment is not a reflection on the RICS—but at the same time it should be emphasised that this is a very considerable area of investment which, under the Bill, is not protected and is not covered. For those reasons, I support the amendment moved by the noble Lord, Lord Ezra.
I read this amendment with interest and I think everyone will sympathise with the motives behind it. I mentioned earlier that I am chairman of the trustees of a fund which for historical reasons, because it is a very old hospital, is 80 per cent. invested in property. It is invested in small "villages" like Watford, of which it has owned large chunks for several hundred years.On the other hand, it seems to me to raise a very serious problem, because nowadays any company, whatever the nature of its business, which is contemplating building an office will, in deciding upon the office, have in mind the whole time that it is a very valuable investment in which it is engaging. I am not sure whether that would be included as well, but with virtually every office that is built, the discussions which take place and the decision as to what sort of office to have—whether to include air conditioning and so on—are very frequently determined not by the needs of the office and the company at that time, but by the investment potential at some future date. So having read this amendment, and understanding the desire to remove an anomaly, it seems to me that the solution suggested would create even bigger anomalies.
I should like to support the basic idea put forward by this amendment of the noble Lords, Lord Ezra and Lord Taylor, as they explained it. But I have considerable reservation about the form of wording, especially the exception of residential property which could be a very valuable income-producing investment. Therefore, I merely wish to give general support to the idea without any commitment to the wording.
I am grateful to the noble Lord, Lord Ezra, and the noble Lord, Lord Taylor of Gryfe, for their explanation and I am sorry that just before dinner I should, perhaps, strike a jarring note, because I am, in fact, going to advise the Committee to reject this amendment.The general principle underlying the definition of "investments" in the Bill is that it excludes physical property which a potential purchaser can inspect and which passes under his direct control on purchase. A person wishing to buy a building can have it surveyed and can establish its physical condition, the cost of any essential repairs and the likely maintenance costs. Once he has purchased it, he will be able directly to influence at least that part of its value which relates to its structural condition. This distinguishes real property from investments as defined in the Bill, where the purchaser acquires rights, directly or indirectly, in underlying assets which he generally cannot inspect or control. Two arguments have been advanced for including real property within the scope of the Bill. The first is, as the noble Lords on the Alliance Benches have stated, that for large fund managers, such as insurance company and pension fund managers, property is an alternative store of value to investments as defined in the Bill, and it should therefore be regulated in a similar fashion. The second is that property is frequently promoted and purchased as an "investment" in the sense of an asset which it is hoped to sell subsequently at a profit. The problem with both these arguments is that they do not present a case for drawing the line at real property. I think that is the point which the noble Lord, Lord Marsh, made. Fund managers may have other stores of value available, such as works of art. A wide range of things, such as stamps and limited edition porcelain plates, are promoted on the basis that they will rise in value and they are certainly bought in that expectation or at least that hope. It would be wholly impracticable to extend the scope of the Bill so as to cover all these areas. Furthermore, to include real property within the definition of investments would greatly increase the range of businesses to which the Bill would apply, to no clear advantage. For example, even with an exclusion for residential property—and neither noble Lord has really explained why this should be excluded—the mainstream activities of a large number of estate agents, property management agents, solicitors who undertake commercial conveyancing and all companies of that kind would be brought within the Bill's scope and I must say that at the present time I cannot see the benefit of that happening. To what sort of rules should they be subject? Clearly, rules drawn up to cover, for example, the management of a portfolio of shares would be wholly inappropriate to the management of an office block as such. In short, we believe that what has been called the "touch and see" principle is the right one to adopt when defining investments. The provisions of the Bill are, I believe, inappropriate for physical objects and real property which pass under the direct control of the purchaser. This has been discussed at some length, but we remain convinced of the inappropriateness of this Bill having real property included, for the reasons which I have given. I urge the noble Lord to withdraw his amendment, but certainly if he does not so wish I would ask the Committee to reject the amendment.
I find that reply a little disappointing. I agree with my noble friend Lord Morton that the form of the amendment is not satisfactory. Nonetheless, the difficulty to which it draws attention is a very real one. I speak from experience as a member of the governing body of hospitals which, fortunately for them, had both real property and investments; and also as a former member of the governing body of a large residential estate which then, after the passing of the Leasehold Reform Act, went into equities as well.The kind of advice that they were getting from two different sources—the experts in real property and the experts in equities—was very similar in kind. They were looking at the same kinds of consideration. They would not have made any distinction between the two. They were not, however, investing in stamps or works of art and would not have considered doing so, so I should not have thought the reality of that comparison a very close one. I hope the Minister will look at the amendment on the sort of basis that I have suggested is the reality. You get bodies which are changing from one to another according to the market and taking the advice of their experts.
I am very glad that this issue has been given an airing. It is obviously an omission from the Bill. The noble Lord, Lord Lucas, has explained why it has been left out and other noble Lords have expressed different views. At this stage I should not like to press the amendment, but will reconsider what we do at further stages. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I think that we have reached a suitable moment to adjourn. In moving that the House do now resume, perhaps I may suggest that we do not return to the Committee stage of this Bill until eight o'clock. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 6.58 to 8 p.m.]
House again in Committee on Clause 1.
moved Amendment No. 18:
Page 149, line 26, at end insert—
("or with a view to a person who participates in the arrangements buying, selling, subscribing for for underwriting investments.").
The noble Lord said: With the Committee's approval I should like to speak also to Amendment No. 19. The purpose of the first amendment, Amendment No. 18, is to ensure that the provision of deal matching arrangements which relate to investments generally or to a particular class of investment is to be regarded for the purpose of the Bill as an activity constituting investment business. It will have the effect that an investment exchange will be regarded as carrying on investment business and will therefore, if it is not a recognised investment exchange, have to be authorised.
The second amendment simply provides that a person is not to be regarded as arranging deals in investments merely because he makes arrangements with a view to himself dealing with another person—in other words, it removes any overlap between paragraph 12 and paragraph 13 of Schedule 1. The amendment is in response to a point raised by many groups, including the Law Society. I beg to move.
With regard to Amendment No. 18, it would appear to me, perhaps wrongly, that there is a printing error in the last line of the amendment, and that the second "for" should read "or". I assume that that is what is intended. No doubt the noble Lord will be able to tell me because,
does not seem to be very good English. As to Amendment No. 19, to which the noble Lord spoke, my difficulty is to understand what it means. It reads:"for for underwriting investments",
If one tries as a simple person, as I assume myself to be, to give a name to it:"This paragraph shall not be construed as applying to anything done by a person with a view to another person entering into any such transaction with the first-mentioned person if the latter enters or is to enter into it as principal or as agent for either party".
is that Smith again?—"anything done by Smith with a view to Jones entering into any such transaction with Smith [I presume] if the latter"—
Who is either party? Is it Smith or Jones? Who is it? It is very difficult to understand:"enters or is to enter into it as principal or as agent for either party".
Is that Smith?—"Anything done by Smith with a view to Jones entering into any such transaction with Smith if the latter"—
It is very difficult to understand just what is meant by that amendment, or note or whatever it is. No doubt the noble Lord will clarify that."enters or is to enter into it as principal or as agent for Smith or Jones"—
I may be somewhat naive but I have not come across a Bill before with notes in it as part of the Bill. I should have thought that this was extremely bad parliamentary drafting. Can my noble friend tell me whether, when the Bill becomes an Act, the note will be part of the law? How is it to be used? It strikes me as most extraordinary.
I share the amazement at the obscurity of this clause. It certainly ought to be made better as the note is part of the legislation. Let it be made clear at any rate.
Three points have been made. The noble Lord, Lord Morton of Shuna, is quite correct in his first point. There is a typographical error. The line should read,
With regard to the second point, I believe in fact that it is "Smith". However, since it is not abundantly clear, the best thing I can do is to take it back and see if we cannot rewrite it so that it is abundantly clear. With regard to the point made by my noble friend Lord Swinfen, I answered this question when I responded to the point of the noble and learned Lord, Lord Denning, much earlier this afternoon. The note, novel though it may be, is part of the statute."buying, selling, subscribing for or underwriting investments".
On Question, amendment agreed to.
[ Amendment No. 19 not moved.]
moved Amendment No. 20:
Page 149, line 35, at end insert—
(1) This paragraph does not apply to (a) advice to the directors of a body corporate in connection with the reorganisation of the capital of the body or of another body corporate in the same group; (b) advice to a person in connection with his formation of a body corporate or establishment of a collective investment scheme; (c) advice as to the legal implications of an offer of investments or as to whether there is a reasonable basis for information given or proposed to be given in connection with such an offer. (2) The reference in this paragraph to rights conferred by investments does not include a reference to any right the exercise of which or failure to exercise which will not or, in the case of a right to vote, cannot result in the person entitled to the right acquiring disposing of, retaining or converting an investment.").
The noble Lord said: I should like to speak also to amendments Nos. 36, 37, 38 and 39, all four amendments being in the name of the noble Lord, Lord Hacking.
Perhaps I may interrupt the noble Lord. I think Amendment No. 36 does not fit into this category but Amendments Nos. 37, 38 and 39 do.
I am most grateful to the noble Lord. This is a matter of grouping and we can return to the noble Lord's amendment at the appropriate time.With regard to the Government amendment, we received a number of representations to the effect that the definition of investment advice in Schedule 1 was too broad. It was suggested, for example, that it might include advice about the exercise of voting rights or advice by an accountant about the reasonableness of financial projections in a prospectus. It might include advice to the management of a company about its capital structure. The definition was not intended to be so broad and the amendment to paragraph 15 of Schedule 1 narrows it so as to exclude these and similar activities which cannot in any real sense be considered to be investment advice. I agree with the proposition underlying the amendments in the name of the noble Lord, Lord Hacking, to which I have just referred. Legal and accountancy advice given to a person in connection with deals in investments which he arranges should not be regarded as investment business. In our view, however, such advice cannot be regarded as itself coming within the definition of making arrangements with a view to someone else dealing. We do not therefore consider that this amendment is necessary. The noble Lord's other amendments all concern paragraph 21. Here I regret that I cannot agree with the noble Lord's proposals. The first three amendments would greatly widen the exclusion. I do not think that managing investments and arranging deals in investments is a necessary part of a non-investment business or profession. There are already exemptions for trustees and we are proposing to extend them to personal representatives. I think it would create an undesirable loophole to go further. Similarly, we would be opposed to excluding all legal, accountancy or actuarial advice. The Government amendments already narrow the definition of investment advice so as to exclude advice about matters which are not strictly related to investment. I do not think that we should make any further general exemption, although I have to say that if any Member of the Committee puts forward cogent reasons why we should make any further exemptions, I shall be quite happy to look at detailed points. The final amendment of the noble Lord, Lord Hacking, would, I fear, actually tend to narrow the interpretation of what is necessary advice. In our view advice which ought properly to be given as a consequence of non-investment business or professional advice is necessary. To suggest otherwise would narrow the concept unduly. I am sure that is not the noble Lord's intention.
I rise full well knowing that I am somewhat ignorant of the subject, but like many people who are more learned in the law than I am I now find the state of this Bill considerably confusing. If these amendments are dealt with in the manner suggested by the Government, how does this leave the prospectuses and takeover bids? This seems to be a highly relevant matter, bearing in mind what has happened with Distillers and Guinness. It may not be relevant to this particular part of the Bill, but I had rather hoped that they would fall within the compass of the Bill. It seems to me that they constitute advice and encouragement to people to invest.Recently we have seen made wild promises which cannot be fulfilled, and I do not see why they should not come within the Bill. However, I am not at all clear, if the amendments are dealt with as recommended by the Minister, whether or not they will be covered by the Bill. I should have thought that they would fall within paragraph 15 in Part II of Schedule 1, but the Government amendment may have so narrowed it that they no longer do so. I should be grateful for some clarification as to whether the sort of statements made by companies in the newspapers and by circulars to shareholders advising them to accept or reject a takeover fall within the definitions in these amendments and therefore would be subject to the regulations which this Bill imposes.
The noble Lord the Minister was kind enough to refer to amendments that I have tabled, and I am more than happy to comment on those amendments at the same time as referring to the Minister's Amendment No. 20. I can tell the Committee that I will be saving any further discussion on Amendments Nos. 37, 38 and 39, tabled in my name, because in view of the amendment tabled by the Minister I shall not be moving them. It was, therefore, most convenient of the Minister to comment on my amendments when speaking to Amendment No. 20.There are two problems of particular concern to members of my profession—that is, solicitors of the Supreme Court. There are many other problems, but for the purposes of our present discussions there are two problems that arise when solicitors of the Supreme Court, or other professional or non-professional men acting as trustees, are under an obligation under the terms of their trusteeship to transact arrangements which would fall under paragraph 13 and which form one of the definitions in Part II:
This comes under the heading which 1 can conveniently describe as, "Arranging deals in investments." Concerning the role of trustees there is a certain exemption set out in paragraph 20 in Part III, and I understand the Government will shortly be dealing with that. I do not propose to make any further comments concerning trustees and the application of paragraph 13, and we can therefore leave that over. That leaves me to deal with the other matter which is of concern to my profession and, I believe, also to the accountancy profession—advising on investments. In his amendment the noble Lord has dealt with the problem of solicitors and accountants giving certain advice, legal and so on, and ancillary advice concern-ing investments. The most convenient course, therefore, would be for me to consider that amendment—because I had no opportunity of considering the Minister's amendment until I saw it on the Marshalled List—and discuss it with the Law Society to see whether it meets the worries that I attempted to cover in my Amendments Nos. 37, 38 and 39. These were designed to protect the professional adviser, such as a solicitor or an account-ant, giving advice on investment matters, from falling under the provisions of the Bill and all that that entails; although I do not know whether I went too far or not far enough. Therefore, on the basis of the amendments tabled by the noble Lord I leave this matter for further consideration. I am not asking the Minister to consider the matter further, but asking leave, as it were, to consider it further with the Law Society."Activities constituting investment business".
It is quite obvious that paragraph 15 is too wide because it does not protect professional men such as auditors, solicitors, and the like. Amendment No. 20 is a good amendment. There may be questions on the detail of it and so in a way it would perhaps be a good thing to think again a little about it in order to obtain agreement on all sides. However, certainly the objective of the amendment seems to be very good and therefore I support it.
I am grateful to the noble Lord, Lord Hacking. I shall, in fact, move the amendment in the fond expectation that the Committee will agree. No doubt the noble Lord will discuss the amendment with us if he finds that it does not meet what he is seeking. I apologise to the noble Lord for including in my opening remarks points which he wishes to raise separately on Amendment No. 36. We can come back to that.The noble Lord, Lord Grimond, raised one important issue. I am sure he will accept that I do not wish to be difficult, but the prospectuses and offer documents are covered in parts IV and V of the Bill, which we shall reach later. It would perhaps be best for us to consider at that stage the points he raised. With that I beg to move Amendment No. 20.
On Question, amendment agreed to.
moved Amendment No. 21:
Page 149, line 35, at end insert—
() This paragraph does not apply to—
() Advice given by an auditor in connection with reports required to be given by him under the provisions of the Companies Act 1985;
() Advice given to the directors of a body corporate in connection with the issue by the body of securities of the body or of another body corporate in the same group;
() Advice given to a person who prepares or issues a prospectus or similar document where that person is an authorised person under this Act.")
The noble Lord said: I am sure that the Committee will agree with the noble and learned Lord, Lord Denning, that paragraph 15 of Schedule 1 is far too wide and that the Minister was very wise in his Amendment No. 20 to indicate some qualifications to the broad generality contained in paragraph 15 which refers to,
"Giving, or offering or agreeing to give, advice as to the purchase, sale, subscription for or underwriting of investments or as to the exercise of rights conferred by investments".
I am most grateful for the efforts of the noble Lord, Lord Hacking, to protect, to some extent, the interests of his own profession, the interests of my profession and, perhaps, of the actuarial profession. I have approached the matter from a different angle, and I must say immediately that the amendment that I propose to move could possibly be a good deal better. We received the amendments of the noble Lord comparatively late last week and the whole bulk of his amendments needed a fair amount of digesting over the weekend. In Amendment No. 21,I am seeking to extend the scope of the noble Lord's amendment which we have just passed, and he will understand that it is done in an endeavour to be constructive and to close some further loopholes that might conceivably have an adverse effect perhaps on the legal profession but most certainly on the auditing profession.
This amendment indicates that paragraph 15, which I have just read to the Committee, should not apply to:
"Advice given by an auditor in connection with reports required to be given by him under the provisions of the Companies Act 1985".
The noble Lord may inform me that that particular part of the amendment is unnecessary. He may say that nowhere in the proposed Bill is it implied that the Companies Act 1985 ought to have specific mention. He may say that it probably stands on its own feet.
However, we are talking of notes, as the noble and learned Lord, Lord Denning, has indicated; and it is a matter to which the noble Lord, Lord Swinfen, referred. Presumably notes are for the avoidance of doubt and to lay down the principles which should guide the courts—should these matters ever come to court—on the precise construction to be given not only to certain clauses but to certain words. I should have thought that the noble Lord could accept in advance the words that have been put down in respect of the first sub-paragraph.
The next sub-paragraph of my amendment reads:
"Advice given to the directors of a body corporate in connection with the issue by the body of securities of the body or of another body corporate in the same group".
The noble Lord may perhaps think that this matter is covered by sub-paragraph ( b) of his Amendment No. 20, which refers to:
"advice to a person in connection with his formation of a body corporate or establishment of a collective investment scheme".
The Committee will observe that my sub-paragraph differs from that of the noble Lord's in that it does not refer to,
"the formation of a body corporate"
"the issue by the body of securities of the body or of another body corporate in the same group".
The last part of Amendment No. 20 refers to:
"Advice given to a person who prepares or issues a prospectus or similar document where that person is an authorised person under this Act".
Once again, it will be noted that this particular sub-paragraph supplements but does not duplicate sub-paragraph ( c) of Amendment No. 20, to which the Committee has just agreed.
I know that this amendment is a little complex but it is designed to form a coherent whole with the amendment of the noble Lord which the Committee has just accepted. I hope that the noble Lord will agree with it or at any rate that he will agree to consider its implications. In this case, as in a number of other cases, owing to the shortness of the notice that we have had concerning the scope of revisions of this Bill—and the noble Lord himself may be the first person to agree—it may well be that we shall have to refer to it on Report. I beg to move.
I should like to support this amendment and to take the same point as has my noble friend Lord Bruce of Donington. This is a necessary amendment, because the present words of paragraph 15 are much too wide, but it has to be fitted in with the amendment to which we have just agreed. There is a good deal of overlap at the moment, so perhaps I may suggest that it would be as well not to press the amendment now but to ask the noble Lord, Lord Lucas, to bring in at Report stage a comprehensive clause dealing with this question of professional men's advice.
The noble Lord may quite easily have suggested a number of exemptions from the definition of "investment advice" additional to those which we have just been discussing, and of course we discussed the background, purpose and effect when we discussed Amendment No. 10. However, at this time we do not consider that advice given by an auditor is caught. The Government's Amendment No. 20, which we have just discussed, makes clear that legal and accountancy advice given in connection with preparing a prospectus is not investment advice. To write in more specific exemptions might suggest that it was covered and hence that similar activities were covered, and I think that would be unfortunate.Advice on issuing shares is more marginal. We do not believe that it is covered by the definition of investment advice because of the exclusion for a company which issues its own shares. I think that the noble Lord, Lord Bruce of Donington, supported as he was by the noble and learned Lord, Lord Denning, made the point that the matter is not beyond doubt, and I think it would be quite proper if we gave further consideration to this point in the light of what the noble Lord has had to say. Perhaps, therefore, with that assurance he would care to withdraw his amendment.
I have just one further small query. In his concluding remarks the noble Lord said that his own amendment, Amendment No. 20, dealt with the question of prospectuses. I am perhaps shortsighted, but I did not see any specific reference in Amendment No. 20 to the matter of prospectuses. If I may say so with respect, I think that it is my own amendment, Amendment No. 21, that actually mentions prospectuses.We are all trying on the most constructive basis to make this Bill as perfect as we can, and I willingly accept the assurance by the noble Lord that this point will be considered further on Report and that in the meantime the noble Lord will give these matters consideration. I ask leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 22:
Page 150, line 5, after ("principal") insert ("or as an agent, or as a trustee or as a personal representative").
The noble Lord said: Having seen the very large grouping as suggested in the groupings that have been helpfully prepared by the Minister's department, I wonder whether we might conveniently deal with all six amendments—if I have my arithmetic right—at the same time; that is, Amendment No. 22, which I am now moving; Amendment No. 23, standing in my name; Amendment No. 32, tabled in the name of the Minister, and Amendments Nos. 33, 34, 35 and 36, which also stand in my name. That makes a total of seven amendments and not six.
Having thought about the matter, I think it would be convenient, though they do not fit entirely into the—I am looking at the Minister, who is glancing towards me in a somewhat perplexed fashion; but I shall continue unless the noble Lord rises to his feet.