House of Lords
Monday, 10 July 2006.
The House met at half-past two of the clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Newcastle.
Margaret Anne Ford, having been created Baroness Ford, of Cunninghame in North Ayrshire, for life—Was, in her robes, introduced between the Baroness Dean of Thornton-le-Fylde and the Lord Rooker.
Lord Patel of Bradford
Kamlesh Kumar Patel, Esquire, OBE, having been created Baron Patel of Bradford, of Bradford in the County of West Yorkshire, for life—Was, in his robes, introduced between the Baroness Massey of Darwen and the Lord Adebowale.
Taxation: Inheritance Tax
My Lords, inheritance tax is currently paid on around 6 per cent of estates on death. The Government have announced increases in the tax-free threshold to £325,000 by the end of the Parliament. Moreover, despite rising house prices across the country, evidence shows that in every region, including London, the majority of properties are below the inheritance tax threshold.
My Lords, does the Minister acknowledge that the yearly increase inthe inheritance tax threshold is lagging far behind the spiralling value of many homes in London and, indeed, elsewhere? Does he also acknowledge that that creates enormous difficulty? He mentioned the figure of 6 per cent. I know of many cases of families who have worked very hard for their family home who are having to sell it because they do not have other resources adequate to meet the tax, or else they have to pay it in lump sums as they go, again causing great hardship to family life.
My Lords, I believe that the noble Baroness’s assertion is potentially misleading: it depends over which period the comparison is made. For example, between 1986 and today, the average increase in house prices has been £155,000, while increases in the inheritance tax threshold have totalled £204,000. For some people buying or owning property now, the event of inheritance tax will arise potentially 30, 40 or 50 years in the future. The value of houses today is not necessarily equivalent to what would fall into their estate because there could be mortgages attached, some people may look to trade down over a lifetime and some may enter into equity release schemes.
My Lords, while one must have some sympathy with the concerns articulated by the noble Baroness, Lady Miller, is it not the case that, were investment in owner-occupied homes—already free of capital gains tax—to be further privileged by being exempted from inheritance tax significantly up the scale, the effect would be to fuel house-price inflation and divert more capital from investment in industry and other productive assets that are in the interests of everyone?
My Lords, does the Minister accept that we are in a highly unsatisfactory situation in which the very rich can avoid inheritance tax altogether by careful planning, whereas the merely affluent are increasingly being caught by it? Would the Government consider including lifetime gifts in the taxable sum so that the threshold could be raised, the rate of tax cut and avoidance made much more difficult?
My Lords, it is important that avoidance is tackled throughout our tax arrangements—the Government have been diligent in doing that. As to potentially exempt transfers, we have tabled no proposals to change the rules. Obviously the tax system is a matter for the Chancellor at the time of the Budget. I understand that the issue is getting some attention from the Liberal Democrats, and I can understand why they are, I think, some £20 billion short on their tax plans.
My Lords, I am not sure that the noble Baroness has interpreted correctly what I might have said or was seeking to say. It is important that we have rules for taxing capital that passes on death or by way of gift—it is a matter that successive Governments over 100 years or more have addressed—and it is appropriate that the system is fair. As it is, there is a range of reliefs available under inheritance tax, one of which has just been referred to. There is the spouse exemption, business property relief, agricultural property relief and others—a generally generous set of reliefs is available. Only some 6 per cent of estates pay inheritance tax—about 37,000 estates each year. That has been a broadly stable statistic over a number of years.
My Lords, does not the very existence of inherited wealth grossly distort the property market by artificially inflating prices and denying those who do not receive inherited money equal access to the property market with those who do? I say that as someone who, on principle, rejects and refuses to receive any inherited wealth whatever.
My Lords, it is right that there should be arrangements to bring inherited wealth within the tax net. That seems to be entirely appropriate, and it is what inheritance tax does. Of course, irrespective of the inheritance tax system, household wealth has increased under this Government by something like 60 per cent in real terms since 1997.
My Lords, what plans do the Government have for trust funds that have been set up to pay inheritance tax? There is some concern that they would be eligible for capital gains tax. Considering that those trust funds are set up for the sole purpose of making sure that the Chancellor receives the money for inheritance tax, would that not be rather unfair?
My Lords, the noble Lord might be referring to the current changes in the Finance Bill. The thrust of those changes is to make sure that interest in possession trusts and accumulation and maintenance trusts in particular are not exploited, as they have been in the past, for tax avoidance purposes. Apart from the more targeted exceptions in the legislation, the thrust of those arrangements is to align the system with the mainstream system for trusts, which is what discretionary trusts attract.
My Lords, that depends on a number of factors. I stress again that part of the problem with the current debate is that people assume that current house prices immediately fall into the tax net. That is quite apart from the fact that there is a threshold below which tax is not paid—tax is paid only above the threshold. It depends on what people do over their lifetime with their assets—you have to take the long-term view. Historically, about 6 per cent of estates have fallen into the inheritance tax net. With regard to the extent to which capital taxes are featured in our system, it has been below 0.3 per cent of GDP over something like 30 years, or 1 per cent—or slightly less—of total tax take over 30 years.
Human Rights Legislation
My Lords, the review of the Rice case by Her Majesty’s Chief Inspector of Probation has shown that the Human Rights Act may be being misapplied by the probation and parole systems by giving insufficient importance to the state’s primary responsibility to provide public protection. Some court judgments have led to public debate about the workings of the Act. We are reviewing, overall, the working of the Act and will do whatever is necessary to ensure that the Human Rights Act works as it is supposed to, but we will not repeal the Act, and we will not leave or act inconsistently with the convention.
My Lords, in a Written Answer given to the noble Lord, Lord Lester, on 5 July, we were told that the Prime Minister had asked the Home Secretary to consider whether legislation was needed to require our judges to be as compliant with the wishes of government as those on the Continent. Is that an implied criticism of our judges or of judges on the Continent?
My Lords, I am not sure that the wording of that Answer was precisely as the noble Lord said—I will need to check it. No, it is not a criticism of the judges; they do that which the law requires them to do. If that gives rise to concern, the right way to deal with it is to change the law, but that must be done in accordance with the terms of the convention, which we as a country substantially wrote and signed up to 50 years ago.
My Lords, I do. That is what is meant by the independence of the judiciary. Problems with the enforcement of the convention very often arise, as I indicated in my Answer, because of misunderstandings and misapplications of the Act, as in the tragic case of Naomi Bryant, who was murdered by somebody who should not have been released. The Chief Inspector of Probation said that he might have been released because of misapplications and misunderstandings of the Act.
My Lords, do the Government accept that human rights legislation is most important not when it is popular but when it is unpopular? Do they also accept that, given the extent to which the European Convention on Human Rights allows concerns about national security to be taken into account and permits derogations in times of crisis, human rights legislation does not inhibit any making of rational and necessary legislation against terrorism?
My Lords, I agree strongly with the last point made by the noble Lord: the Human Rights Act does not inhibit any rational and robust approach to crime and terrorism. Indeed, having a clear set of rules makes it possible to take robust measures because, with a clear set of parameters, you know where you stand, and tough measures can be taken because there are clear safeguards.
My Lords, my noble and learned friend agreed with the noble and learned Lord, Lord Lloyd of Berwick, about the importance of the European Court of Human Rights in Strasbourg. Will he therefore undertake to look at the report produced by the noble and learned Lord, Lord Woolf, which drew attention to the serious underfunding of that court, and reflect on it to see what action Her Majesty's Government need to take to ensure that it is properly financed?
My Lords, my noble friend makes an important point. I have read the report of the noble and learned Lord, Lord Woolf, and the other people engaged in work with him. There are unacceptable delays in the European Court. There are too many cases, and they often come from countries that are quite new signatories to the Council of Europe treaty and the convention. The European Court must decide how it deals with that problem, and we will provide any assistance that it asks for.
My Lords, the Prime Minister was referring to things such as the inability before the 2003 Act to have indeterminate sentences to provide proper public protection in many cases or the inability to look into people's bank accounts for evidence of money laundering, for example. We also need to ensure that what happened in the Rice case, as described by the Chief Inspector of Probation, does not happen again. I am glad that the noble Baroness could take time off from hugging a hoodie to come and ask that question today.
My Lords, I am just trying to get that thought out of my mind.
Will my noble and learned friend help me and advise the House on whether it would be possible for some of my former colleagues in the House of Commons to go to the European Court in Strasbourg if some future Government were to try to remove some of their rights as elected Members, such as taking away the right to vote on certain matters in the House of Commons?
My Lords, I have two questions for him. First, how often, if at all, is the European convention reviewed? Secondly, can I ask him about activities, particularly by the police, that may bring the convention into disrepute? I am thinking of the man on a tin roof who was bombarding everyone—and people’s property—with stones. To see that he had his human rights, the police, far from helping to bring him down, sent up not only food but cigarettes to him. That really brings things into disrepute.
My Lords, I am still noble and learned. When my noble friend the Leader of the House said that the independents should ask a question, she plainly meant the noble Lord, Lord Tebbit, not the unindependent anti-European party. The convention is never reviewed, although its workings are reviewed, and it is disgraceful that the noble Lord, Lord Stoddart of Swindon, presses on with that canard about the Human Rights Act requiring the man on the roof to be given cigarettes and food. It did not—it had nothing to do with it.
Sport: Community Facilities
asked Her Majesty’s Government:
What is their response to the report by the Audit Commission, Public sports and recreation services, that school sports facilities are not being used to full effect to provide community sports and recreation facilities which are fit for purpose.
My Lords, the Government welcome the report, which, while highlighting some legitimate challenges, recognises that education facilities are playing an increasing role in the delivery of community sports facilities. By 2010, we want all schools, as part of their extended school provision, to provide wider community access to their facilities. DCMS is working closely with DfES and local authorities to achieve this.
My Lords, I thank the Minister for that Answer. I turn his attention to another part of the report, which states that successful strategic management between sports and recreation services and health and education sectors is not common. As the noble Lord, Lord Warner, assured us on Thursday that the Department of Health was taking a lead in this, can the Minister tell us exactly what guidance has been given to the Department for Education and Skills by the Department of Health to tackle obesity and other problems, with regard to recreational activities, and what weight that guidance has?
My Lords, the noble Lord will recognise that the DCMS and the Department for Education and Skills are on course to hit an ambitious target of providing enhanced sports facilities and increased provision for sport in school by 2010. The noble Lord will know, as he has presented this case frequently to the House, that the best way to tackle ill health among children and to prevent obesity is to ensure that young people get the opportunities to enjoy sport and exercise.
My Lords, the Audit Commission rightly draws our attention to the potential of state schools to provide leisure and recreation facilities for all of us. However, given the fact that independent schools frequently have outstanding sporting facilities—very level playing fields, in most cases—and are in receipt of charitable status, which gives them significant financial benefit, what are the Government doing to open up those facilities for everybody, so that everyone can benefit from them and not just the privileged few?
My Lords, my noble friend will be well aware that the Government are concerned to develop school sports partnerships that guarantee that young people get the benefit of private resources dedicated to the enhancement and provision of sport, whether that involves private clubs or, in some cases, private schools. The progress on the latter may not be as rapid as we would wish, but some progress is being made, and we intend to encourage private independent schools to make their contribution to local school partnerships.
My Lords, that is certainly a problem, although not an entirely new one. After all, many children have always been bussed home straight after school. Therefore, the issue relates to the timetable and the availability of sport in the school curriculum as well. I agree with the noble Baroness: the answer is to encourage parents to recognise the value of out-of-school activities that can be provided at school and ensure that they make arrangements for their children to participate fully in them.
My Lords, does the Minister not agree that still better use could be made of such facilities by the introduction of daylight saving? One of the main lobbyings that I received during the passage of my lighter evenings Bill was from school people, certainly in northern latitudes. They said that they could not get children out of school and on to the playing fields simply because it was dark and the children had to go straight home. There is also the high risk of accidents during that period.
My Lords, the House will recognise that the noble Lord’s representation has many merits, one of which is that an additional hour of light in the evening would help. He will also know, however, that he has not won his case just yet. There are difficulties with regard to children and the early mornings.
My Lords, I want to return to a subject that we have debated frequently in the House. The Audit Commission’s report makes it clear that the Government should,
“ensure greater coherence of funding streams and initiatives across government departments that directly or indirectly affect investment in sports and recreation facilities”—
a one-stop shop for sports organisations. Where have the Government got to?
My Lords, one-stop shops are easier to pronounce than to create. The noble Lord will recognise that the Department for Education and Skills is bound to play a significant role in schools expenditure, in partnership with local authorities. He will recognise that school sport and exercise represent just one dimension of the curriculum and the resources that we need to make available in schools. I accept his point that we need to make progress on the integration of sports facilities for schools. We aim to meet many of the Audit Commission’s requirements as rapidly as we can.
My Lords, my noble friend will recognise that our requirements for sport and exercise apply to all schools irrespective of the auspices under which they are organised, as long as they are in the state system. However, she has identified the challenge of encouraging younger Asian girls in particular to participate in sport. The education system and the Department for Culture, Media and Sport will do all that they can to demonstrate the benefits to the Asian community of participation by young people.
My Lords, will the Minister remind us how many playing fields have been closed recently in the state system? Does he recognise that each closure brings added pressure? No wonder the Government are looking to get more facilities from the private sector to support their achievements.
My Lords, far fewer playing fields are closed than sports facilities are created as a result of the resources released. We made a commitment in 1997 that we would not continue the previous Administration’s policy of closing down school playing fields, but that only where school playing fields could be replaced by enhanced sports facilities would we give the go-ahead for them to be sold. We have retained and stuck to that policy, with the result that every month greater numbers of sports facilities are being created than school playing fields are being sold.
Food: Television Advertising
asked Her Majesty’s Government:
What action they will take as a result of the Food Standards Agency’s recommendation that all television advertising of food with high fat, sugar or salt content should be banned before the nine o’clock watershed.
My Lords, the Government await with interest the outcome of Ofcom’s consultation on how to restrict food and drink advertising on television to children. Ofcom will carefully consider all the evidence that it has received, including that from the Food Standards Agency. The Government will review the success of measures undertaken on the balance of food and drink advertising and promotion to children. If those measures have failed to produce change, we will consider the need to take action through existing powers or new legislation to implement a framework for regulating the promotion of food to children.
My Lords, I thank the Minister for his now increasingly familiar Answer, but does he accept that an increasing number of children—now perhaps 17 per cent under 16—are clinically obese and no less than a third are seriously overweight? Is he also aware that each of the three restrictions so far proposed by Ofcom is regarded by the Food Standards Agency as inadequate? Therefore, will the Government undertake urgently in the interest of public health to arbitrate between those two regulators, which obviously have their different remits and responsibilities, and to give full weight to the widespread support for a complete ban on junk food advertising before the familiar 9 pm watershed?
My Lords, the Government have said that they are awaiting the outcome of the Ofcom consultation, which did not end until 30 June. We need to hear what Ofcom has to say. We are well aware of the views that have been put to Ofcom; we await the outcome of its deliberations.
My Lords, we accept that the nutrient profiling system developed by the FSA is based on a simple scoring system that compares food products’ energy, fat, sugar and salt levels with those of other products and that it is soundly based on a good scientific approach.
My Lords, we await Ofcom’s report on television promotion. We are also looking at non-broadcast promotions. As I said in my Answer, we are willing to consider legislative changes, should they be necessary, once we have seen the outcome of the Ofcom review.
My Lords, is my noble friend aware that originally Ofcom’s consultation document precluded discussion of the banning of such advertising between 6 pm and 9 pm but that subsequently, under pressure from the Food Standards Agency and a range of other consumer and health organisations, it changed its mind? The reason given for the original decision was that it would cost television companies too much in lost advertising revenue. In whose interests does Ofcom act? Is it in the interests of the wider public, including their health, or in the interests of the broadcasting and advertising industry?
My Lords, I am aware that there have been twists and turns in this area. Ofcom operates under the legislation under which it was set up, which was debated extensively in the House. The Food Standards Agency also operates under the legislation under which it was set up. The Government await the outcome of the Ofcom review and will consider what it is necessary to do. We made it clear in our manifesto that we would help parents by restricting further the advertising and promotion of foods high in salt, fat and sugar. We stand by that manifesto commitment.
My Lords, will the Minister reassure the House that he will keep a close eye on the situation? We have one of the highest rates of obesity in Europe, which is linked not only to diabetes but now also to depression, which has a profound impact on family functioning, not least parenting. This is one of the most important matters, but it does not always get the attention that it deserves. I should be grateful if my noble friend would keep a close eye on the situation.
My Lords, I assure my noble friend that the Government are keeping a close eye on the situation. My honourable friend Caroline Flint, the Minister for Public Health, has reiterated on a number of occasions the need to encourage the continued promotion of healthier foods and for advertising restrictions to focus on the most vulnerable children. We shall be watching this area closely, and we await eagerly the outcome of Ofcom’s consultations.
My Lords, the use of the watershed as the criterion for whether programming or advertising is suitable for children is increasingly irrelevant because of the ease with which programmes are recorded or time-shifted on the web. Therefore, will the noble Lord ask Ofcom to take that into consideration in tendering its advice?
Housing Corporation (Delegation) etc. Bill
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved accordingly, and, on Question, Motion agreed to.
Electoral Administration Bill
My Lords, I beg to move that the Commons reason be now considered.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to HL Bill 58 as first printed for the Lords.]
8B: Before Clause 13, insert the following new clause—
“Registration: personal identifiers
(1) The 1983 Act is amended as follows.
(2) In section 10 (maintenance of registers: annual canvass), after subsection (4) insert-
“(4A)Subject to subsection (4B) below, the information to be obtained by the use of such a form for the purpose of a canvass shall include-
(a)the signature of each of the persons in relation to whom the form is completed, and
(b)the date of birth of each such person.
(4B)The registration officer may dispense with the requirement mentioned in subsection (4A)(a) above in relation to any person if he is satisfied that it is not reasonably practicable for that person to sign in a consistent and distinctive way because of any incapability of his or because he is unable to read.”
(3) In section 10A (maintenance of registers: registration of electors)-
(a) after subsection (1B) insert-
“(1C)Subject to subsection (1D) below, an application for registration in respect of an address in England, Scotland or Wales shall include-
(a)the signature of each of the persons to whom the application relates, and
(b)the date of birth of each such person.
(1D)The registration officer may dispense with the requirement mentioned in subsection (4A)(a) above in relation to any person if he is satisfied that it is not reasonably practicable for that person to sign in a consistent and distinctive way because of any incapability of his or because he is unable to read.”;
(b) in subsection (5), at the beginning insert “Subject to subsection (5A) below,”;
(c) after subsection (5) insert-
“(5A)A person’s name is to be removed from the register in respect of any address if-
(a)the form mentioned in section 10(4) above in respect of that address does not include all the information relating to him required by section 10(4A) above; or
(b)the registration officer determines that he is not satisfied with the information relating to that person which was included in that form pursuant to that requirement.”;
(d) in subsection (6), after “above” insert “or his name is to be removed from it by virtue of subsection (5A) above,”; and
(e) in subsection (8), after “5” insert “, (5A)”.
(4) In section 13A (alteration of registers), after subsection (2B) insert-
“(2C)Subject to subsection (2D) below, an application for registration under subsection (1)(a) above in respect of an address in the United Kingdom shall include-
(a)the signature of each of the persons to whom the application relates, and
(b)the date of birth of each such person.
(2D)The registration officer may dispense with the requirement mentioned in subsection (4A)(a) above in relation to any person if he is satisfied that it is not reasonably practicable for that person to sign in a consistent and distinctive way because of any incapability of his or because he is unable to read.””
The Commons disagree to this amendment for the following reason—
8C: Because it is not appropriate for personal identifiers to be collected as part of the registration process for all purposes
My Lords, I beg to move that the House do not insist on its Amendment No. 8B, to which the Commons have disagreed for their reason numbered 8C.
As I have mentioned in previous debates, the Government accept the principle behind your Lordships’ amendment for individual registration, but we believe that we should make changes that affect our democracy only with great care. To do otherwise could cause damage. Therefore, on reflection, we ask that your Lordships’ House does not insist on its amendment.
We have already agreed unanimously, between both your Lordships’ House and another place, on a new system for personal identifiers for postal voters, which is of course where the main risk of fraud occurs. We will, as we have committed to do, examine what lessons we learn from this in some form of post-legislative review, as I indicated in our previous debate on the subject.
The key challenge for us is to ensure that we can get these important measures in place in time for next year’s local elections in May. This will be a significant challenge for administrators and the wider electoral community and can happen only if noble Lords approve this Bill, which I hope they will do today. If this Bill is passed today, I hope we can send out the message that your Lordships’ House has approved measures which will significantly improve the security of the system. I believe that this is critical to public confidence.
As noble Lords will know, within this legislation we have in place that the Bill requires personal identifiers for postal and proxy votes to protect against postal voting fraud. It creates two new election offences; it revises the offence of undue influence, enabling the offence to be prosecuted even where influence has not led to any action being taken; it increases the length of time available for the police to carry out investigations; and it provides the statutory secrecy warnings to accompany postal voting papers. These measures, and in particular the use of postal voting identifiers, will help to eliminate electoral fraud and increase public confidence. This is a comprehensive package of important changes. I believe it deserves, and rightly has, the support of your Lordships’ House.
Moved, That the House do not insist on its Amendment No. 8B, to which the Commons have disagreed for their reason numbered 8C.—(Baroness Ashton of Upholland.)
My Lords, I find myself back in a familiar place. Indeed, I am reminded of Sisyphus, who was condemned by the gods to roll a rock up a mountain, only for the stone to fall back on its own weight—a punishment of futile and hopeless labour. The hopeless labour has been to try to persuade the Government on at least three occasions to make it a requirement to provide personal identifiers for all those on the electoral register, not just postal voters. The Government conceded that early on during the progress of the Bill through this place, as the Minister said.
We have had a hopeless task getting everyone to have to provide identifiers, despite recommendations from the Electoral Commission, despite the opinion of your Lordships' House which has been positively tested on at least two occasions, despite calls from local authorities nationwide and, most intriguingly, despite calls from members of the Minister’s own party from across the country. Letters to the Minister’s department in response to consultation would have made extremely interesting reading, if only we had received them in time.
My honourable friend in the other place, Oliver Heald, asked in November for us to see the response to the consultation on these matters. On 15 June, after the first amendments had gone back to the other place for consideration, the consultation responses arrived. I have them here. Within them, the honourable Member for Linlithgow and East Falkirk supported the view of the Member for Harlow—a Labour Minister in another place—who stated that he would support the use of individual identifiers, as did the London Borough of Merton, the metropolitan borough of Bury and the Borough of Telford and Wrekin, to name but a few. The East Midlands branch of the Association of Electoral Administrators states that,
“individual forms are the only option, particularly if administrators are going to be required to check the identifiers against each declaration of identity/security statement for postal votes submitted at election time”.
Noble Lords will recall the series of fiascos in Birmingham council and my statement on the previous occasion that we considered this matter about people who were in Pakistan managing to appear at the same time at the polling stations in Coventry. The Minister reminded noble Lords on that previous occasion that 10 new security measures were introduced by the Bill, one of which is the need to provide a signature at the polling station, which is contained in Schedule 1. However, there is no formalised means of verifying that signature.
Efforts have been rejected on grounds of convenience. The Minister cited the registration system in Northern Ireland as an example of where personal identifiers have put people off registration. But over a million people are on the register in Northern Ireland—some 91 per cent of the voting-age population. The Minister referred to the legislation going through Parliament as we speak that will revolutionise registration in Northern Ireland—the Northern Ireland (Miscellaneous Provisions) Bill. However, the reality is that that Bill does nothing to seek to end personal identifiers but seeks to alter the timing of the registration canvass. In fact, registration in Northern Ireland is at a high level of participation and a high level of security, so criticism of personal identifiers in that context is a red herring.
We are at the end of a long road regarding this Bill. We on this side are pleased with many of the measures that we have helped to introduce, especially the introduction of personal identifiers in postal voting. Much more could have been done to secure the integrity of the vote if we had been able to secure this final aspect of obtaining individual registration and individual identifiers. Both opposition parties in this House, supported by Her Majesty’s Opposition and other parties in another place, have made gallant efforts which have been consistently ignored on an issue agreed in principle by all.
I will not take this matter any further today, but it is a fact that now we will either have to wait until the next piece of legislation that would enable identifiers to be introduced—which, given the nature of this place and this Parliament, will be a long time coming—or we will have to wait for a different Government to put the balance right. I accept that this matter has twice been referred back to the other place. This House has done its duty. It has drawn more than attention to this matter. It will not go away; but, for today, I do not intend to press the matter to a vote.
My Lords, the Bill does much to improve the quality of electoral administration in this country and will therefore make a significant contribution to improving the health of our democracy. It makes significant improvements to electoral legislation as we left it in 2000. We have clearly all learnt lessons since then about the issues that we failed to address—in particular, those relating to loans to parties and the potential for postal vote fraud in the 2000 legislation. But there is still very much more to do on some of these issues, and I think that the evidence just given by the noble Baroness, Lady Hanham, is something to which we shall return in due course.
We have made progress on these issues—in particular, with the assistance of the noble Lord, Lord Elder, on tightening up the potential for postal vote fraud. We have ensured that a person who returns a postal vote is the same person who applied for it, and that is very welcome. But we have not yet ensured that the person who applies for and returns a postal vote is the same person as listed on the electoral register, and I think that we shall return to that issue at some point in the future.
My Lords, I am extremely grateful to the noble Baroness, Lady Hanham, the noble Lord, Lord Rennard, and others for the enormous effort that they have made on this legislation. We should be of good cheer—it is a good Bill. I know that we have to do more, but we have committed to continue to work post-legislatively in examining these issues. I hope that, in passing the Bill, noble Lords will recognise that this is important legislation and that it has been completed with the help and support of noble Lords on all sides of the House.
On Question, Motion agreed to.
Legislative and Regulatory Reform Bill
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 1 [Power to remove or reduce burdens]:
[Amendment No. 28 had been withdrawn from the Marshalled List.]
On Question, Whether Clause 1 shall stand part of the Bill?
By objecting to Clause 1, it looks as though I am trying to wreck the Bill, but that is not the intention. My intention is simply to probe the circumstances and I want to know, in particular, why we are having this considerably extensive new Bill instead of merely amending the Regulatory Reform Act 2001. We debated this issue to some extent on the Motion moved last week concerning whether the House should go into Committee—the noble Lord, Lord Jenkin, and others spoke on that occasion—but I think that it is necessary to go over these issues fairly briefly again.
I believe that it would have been much better to begin with amendments to the 2001 Act. Following changes to the Bill, in what way does it differ from that Act? Several of the differences are set out in a letter of 27 June from the Minister to me and in the annex to that letter. I accept that Parts 2 and 3 of the Bill are new and that they would be additions rather than amendments to the 2001 Act, but perhaps I may compare what we now find in Part 1 of the Bill with what is in the Act.
Four changes have been proposed by the Government. First, they say that the procedure under the 2001 Act is too onerous. That may well be true, and I acknowledged that at Second Reading. It is supported by two examples in the annex to the Minister's letter. Therefore, we shall need amendments to replace some sections of the 2001 Act with Clauses 13 to 20 of the Bill but I do not believe that that would be a fundamental change. Secondly, under the 2001 Act, there is a need to remove a legal burden. There is no power to remove an administrative or financial burden which does not remove any legal burden. Again, I accept that as desirable, but it requires only a short and simple amendment to the 2001 Act.
Thirdly, there is an inability under the 2001 Act to use the procedure under that Act to change legislation within the previous two years. No example is given of any problem that has arisen, but it simply requires the removal of a few words in Section 1(2)(a) and (4) of the 2001 Act. Fourthly, there is an inability under the 2001 Act to confer powers of delegated legislation by order. It is highly questionable whether that is desirable, but again if it were desirable it could be dealt with by a short amendment. Finally, there is the absence of any power under the 2001 Act to remove burdens arising other than from the carrying on of activities. That again needs only a very short amendment.
Therefore, four short amendments are needed to the substantive provisions of the 2001 Act plus a rather more substantial amendment to the sections dealing with procedure. Why did the Government not start from there instead of pressing for excessive powers to amend primary legislation? The suspicion is that the Government wanted the power to enable them to bypass most of the existing parliamentary checks on the legislative process. The Government are very fond of the expression “fit for purpose”. What is the purpose for which this Bill, in its original form, was thought to be fit?
I, too, oppose Clause 1 standing part of the Bill. The clause now constitutes the principal mischief in the Bill. In essence, it is a Trojan horse; it may never be used as such but the potential is there. The institution under threat from the inclusion of the clause is Parliament itself. Why is this clause before us? We have not had a satisfactory answer, either in respect of process or substance? By process, I refer to the Bill being brought before us without being subjected to any pre-legislative scrutiny. The explanation given is that the Bill is urgent. History demonstrates that any Bill brought forward by Government on the grounds of urgency requires the most careful scrutiny. What urgency attaches to the provisions of this clause? There is a case for getting rid of red tape and unnecessary bureaucracy, but that is not in itself sufficient to justify bringing forward this measure and trying to get it passed in best “Yes Minister” style, before Parliament has had an opportunity to grasp its full implications.
Picking up on what the noble Lord, Lord Goodhart, said, if there are particular burdens that need to be removed urgently, what are they? In our discussions so far we have not been awash with examples. Which of the few examples listed in the annex to the Minister's letter of 27 June justify rushed legislation? At best, the Minister has made the case for some action to be taken, but not for it to be treated as urgent. Indeed, I remind the Minister what his colleague, the noble Baroness, Lady Ashton, said only a few minutes ago about the Electoral Administration Bill: we should make changes that affect our democratic arrangements only with great care. I believe that this Bill impinges on our system of representative parliamentary government.
We still wait for a compelling, substantive case to be made for the provisions of this clause. As I pointed out at Second Reading, the motivation for this clause is that officials find the mechanisms under the 2001 Act overly difficult. The problem, as I argued, lies within government, not Parliament. The Minister’s letter of 27 June, to which frequent reference was made in our earlier discussions, concedes that the Government consider the provisions onerous and complex. As the noble Lord, Lord Bassam of Brighton, points out in the annex to the letter, departments “perceive” that RROs are disproportionately onerous.
Even if we accept that the existing mechanisms are problematic for officials, that does not make a case for the clause as drafted. It may make the case for finding some alternative methods to the existing one, but it does not demonstrate that the provisions of this clause create a preferable method. All the Government have done so far is make a case against the provisions in the 2001 Act. They have not made a case for the provisions in Clause 1.
There are alternatives. The noble Lord, Lord Goodhart, pointed out that one could have an amendment to the 2001 Act. At Second Reading, my noble friend Lord Goschen raised the prospect of a deregulation Bill. If such a Bill was brought forward on a regular—say, biennial—basis, it would avoid all the problems associated with the clause. It would be confined to those burdens that the Government say they wish to be removed. Minor burdens incorporated into such a Bill would presumably require little attention; more significant ones would attract greater scrutiny. It would probably lessen the burden on departments, since they would not need to bring forward the mass of different orders that they will presumably have to bring forward if the provisions of the clause are as necessary as we are told. Above all, a regular deregulation Bill would avoid the major constitutional implications arising from the provisions of the Bill; principally, this clause.
In short, the Government have made a case for some change to facilitate deregulation, but have not made a compelling case for Clause 1. As it stands, the clause’s potential renders it dangerous.
I, too, have questioned the clause’s necessity, and will certainly not repeat the arguments I adduced both at Second Reading and when I spoke on the Motion to go into Committee. The noble Lord, Lord Goodhart, was kind enough to say that he agreed with everything I said but that he could not support me. That is a familiar syndrome from those Benches.
The problem we face—certainly on this side of the Committee—is that, in crude terms, the Government have form on enabling legislation. That is why my noble friend Lord Onslow, who will no doubt be joining us at some stage, has said that he deeply mistrusts giving these legislative powers to Ministers to be exercised by order. When one adds the powerful arguments of my noble friend Lord Norton on why we have not yet been told what the urgency for the Bill is, I maintain the view that the Government would do much better to take the Bill away. After all, it has had a pretty chequered passage in another place. When we discuss the amendment of my noble friend Lord Waddington, we will come to some of the arguments adduced on his case: the Government have had massive changes of mind—not just once, but twice and three times—on what they want to see in this Bill.
The clause contains a dangerous power: the power for Ministers to legislate, and to repeal and amend existing legislation, by order. To my mind, it is incumbent on this House to demand a clear exposition from the Government—a much clearer one than anything we have had from the Minister—justifying the immediate need for it instead of a much simpler, shorter Bill, amending the 2001 Act, as the noble Lord, Lord Goodhart, said.
We are faced with the demand that this legislation should be rushed through in this Session of Parliament. The Report stage will be in October on the timetable scheduled for the Bill. It will then have to go back to another place for consideration of the substantial amendments that will have been made here, not least by the Government. This is the classic example of the Government making the mistake of, first, trying to pass too much legislation and, secondly, when the legislative programme becomes severely congested, trying to rush things through in order to achieve what they see as their parliamentary objectives.
I believe that this Government would, after the changes made in the Commons, have taken the matter away were it not that this would have been seen as a most tremendous loss of face. One thing that the Prime Minister in particular and his Ministers in general simply cannot abide is any thought that they should lose face any further than they have already. I totally support the case made that we should not let this clause go through.
Two fundamental matters distinguish what was in this Bill, as it originally appeared in another place, from the 2001 Bill. The first one was the attempt by the Government to blur the distinction between primary and secondary legislation. The second was to introduce a new procedure for Law Commission proposals. The first was abandoned on Report in another place. The second is to be abandoned this afternoon by the noble Baroness when she speaks to Clause 3.
What is left is, essentially, the 2001 Bill in slightly different form. Is there anything we can do to rescue the Government from their dilemma of having to carry on with the time-consuming passage of this Bill? Yes, there is. It is to transform Clause 1. How should we transform Clause 1? We should transform it by reminding ourselves why the Government said they were introducing the Bill in the first place. They said they were introducing the Bill to implement the Hampton report.
It is a very important report, which has many wise things to say about regulation. Its fundamental message is that regulation should be proportionate to risk. That is the core message that we receive from its author. Where do we find that message in the Bill? Nowhere. Where should it be? It should be in Clause 1. Instead of that we have essentially the same language from the 2001 Act which the Government have repeatedly described as an Act that has failed.
So I share the views of all those who have spoken to this clause stand part Motion this afternoon: that we should remove the text of Clause 1, keep what is in the 2001 Act, and use Clause 1 to state in a very clear way the principles that appear in Hampton. This clause should be about deregulation. Why is it cast so widely when the purpose of the Bill is, solely, to promote deregulation?
I am grateful as ever to those noble Lords who have contributed to this short debate, but it is a rerun of a debate we had at Second Reading, and, as the noble Lord, Lord Jenkin of Roding, said, a debate we had before we entered into the Committee stage. There appears to be a measure of agreement among noble Lords on the Opposition Benches, although perhaps not absolute agreement. The noble Lord, Lord Goodhart, seemed to accept that there are two or perhaps three, new areas. The noble Lord also accepted that the old procedure under the 2001 Act for instruments of deregulation is too onerous. He then described how he thought that the Act could be amended and took the point that amendments to the procedure for deregulating by order would need to be substantial.
So there is a measure of agreement, but there is also a measure of disagreement in the views of opposition Members about how we should improve or modify the Bill. At the heart of it, for opposition Members, the question remains why we did not simply amend the 2001 Act. Of course, we could have done and the Bill clearly builds on the strengths of that Act. However, if we had amended the 2001 Act, the legislation would have been spread over two enactments. It would have been messy and, I would argue, difficult to use by departments which must deliver better regulation. If anything can be learnt from the experience of the 2001 Act, it is that it must be clear how departments can deliver better regulation by order.
What is really important here is evidence about why the Bill should work better, and deliver more than the 2001 Act, and specifically what the Government intend to deliver through the Bill. This is what I shall focus on in responding to the points made by Members of the Committee.
What is clear from the debate in this House is that we all agree that there is a need to deregulate. What has been lacking so far is the actual and swift delivery of wide-ranging better regulation measures to effect real change on the ground. The order-making power in Clause 1 will allow us to remove or reduce burdens in a way that the 2001 Act did not.
The definition of burden in the Bill is substantially different from that in the 2001 Act. It is outcome-focused—focused on why legislation should be reformed, rather than on how legislation can be reformed. What I mean by that is that the 2001 Act required disproportionate and sometimes nugatory analysis. The department proposing an order had to carry out a large amount of legal analysis on whether the proposal removed, reduced, re-enacted or imposed specific legal restrictions, requirements, conditions, sanctions or limits on statutory powers. The analysis required by the 2001 Act often had little to do with the desired better regulation outcome of, for instance, reduced costs on business or charitable organisations. It is certainly not as direct as the current definition of burden, which will require Ministers to focus on the financial costs or obstacles to productivity that the order would reduce or remove.
Those stakeholders whom we consulted argued forcefully that orders should be an outcome-focused tool to deliver better regulation. To cite but one of those consulted, the Federation of Small Businesses told us:
“The concept of a burden as a legal one means that there is a wide gap between what the small business man or woman would consider to be a burden and what a legislator—or even an enforcer—would consider to be a burden”.
The new definition of burden in the Bill does exactly this: it forces those using the order-making power in Clause 1 to focus on the practical benefits that the order will deliver; it forces those using the order-making power to focus on the financial cost, administrative inconvenience, obstacle to efficiency, profitability or productivity or sanctions that the order will reduce or remove. That is not necessarily about reducing analysis that has proved a disincentive for departments’ use of the 2001 Act, but about ensuring that the analysis and evidence is proportionate and is focused on the costs and impacts, on the economic, financial and other practical evidence that reforms are worth while. It is also about ensuring that the policy makers and economists focus on the evidence that demonstrates why a proposal is necessary. The change in emphasis that the definition of burden in Clause 1 requires is therefore completely different from the justification necessary under the 2001 Act.
As we have stated on a number of occasions, the Bill, and Clause 1 in particular, does not stand in isolation and neither can we consider it in a narrowly focused way. The Bill is part of a much wider government agenda of cutting the red tape that is such a burden on the public sector, businesses, charities, and so on. As part of this agenda, the Government are also measuring the costs of all administrative burdens. The outcome of this work and the concerted push across government departments for better regulation will be reflected in concrete simplification plans from each department, to be published later in the year. In those plans, government departments will identify deregulatory measures, which they will deliver with the most appropriate measures available to them.
The Government have also accepted in full Philip Hampton’s report on more efficient approaches to regulatory inspection and enforcement, in which he recommended the merger of regulators into seven thematic groups. The Government’s better regulation aims have become more ambitious since 2001, when the present Act was devised. We have found that the 2001 Act does not offer the appropriate alternative mechanism that the radical programme of reform demands.
It may be helpful if I cite four examples of generic better regulation proposals which orders under the 2001 Act could not deliver: first, the reduction of administrative burdens if no legal burdens in the narrow technical sense of the original Act are reduced or removed; secondly, delivering uncontroversial Hampton mergers to reduce the burden of inspection and compliance on the regulated; thirdly, the limited power to sub-delegate, which meant that under the 2001 Act carrying risk-based inspections and enforcement through to the detailed level of regulations was more difficult; and fourthly, reducing the burdens on individuals or others that affected them passively rather than actively.
There is recognition here and at EU level of the need to identify and remove administrative burdens. That is why the Government have done their ground-breaking analysis of the cost of all administrative burdens on the regulated. In their simplification plans, departments will set challenging targets to remove unnecessary administrative burdens.
I am very grateful to my noble friend for giving way. I have understood his long and very clear explanation of the benefits of deregulation to the Government, to charities and many other organisations, but he has not once mentioned the effect that it may have on the customers and others on the other side of the coin. Why were these regulations introduced in the first place? Is he investigating at the same time the effect that it will have on the people who might come off worst if these changes are made?
That is a fair point, and one that is acknowledged in the legislation. It is one of the protections that are part of the process to be gone through. Regulations are put in place from the best of motives. Sometimes it is discovered subsequently that the measure of regulation is not appropriate, does not work, is excessively burdensome and adds costs. The noble Lord asks about the consumers. Some regulations probably cost consumers because of how they operate.
We have attempted in the Bill to improve and strengthen the procedures put in place under the 2001 Act, which built on the 1994 Act put in place by noble Lords opposite when they were in Government. We are trying to ensure this time around that the important work that we have done so far under the 2001 Act can be built on so that it works better and is more precise and better defined. In that way, the protections are there when they need to be and we can remove unnecessary costs and burdens on business and make the regulatory regimes much simpler and easier to understand. This will enable us to bring together the important regulatory bodies, which really should be working together as a single regulator, to work much more coherently and simply.
Noble Lords opposite have a very simple choice to make: either they can join the Government in the important practical work of enhancing and improving our regulatory regimes and ensuring that we do not have regulatory burdens, or they can continue to force the Government to muddle along by deleting the clause. I have not heard a convincing argument from noble Lords opposite against the Government’s deregulatory programme. I rather thought that they shared our agenda. If they do not, they and their colleagues on the Liberal Democrat Benches may try to strike out the clause. That retrograde step would send out entirely wrong messages not just within the political system but to the business communities, in particular, and voluntary organisations, which are very much behind this Bill and our attempt to improve the regulatory framework in this country. I hope that the Committee will think long and hard before attempting to wreck or disassemble our Bill, which has virtue and value. That is not just the opinion of the Government, it is more widely held outside your Lordships’ House. I recommend that Clause 1 stand part of the Bill.
I am not sure that the Minister has been listening to the debate. We have put forward an alternative. It is not a simple choice in the way that he has outlined. In so far as he has made a case for this clause, it is in explaining what the Government want the clause to deliver. He has not addressed what the clause could potentially deliver; that is the real mischief.
The noble Lord presses the issue of mischief. We have listened carefully throughout the debates in another place, which is why we have brought forward amendments designed to allay some of the wilder fears and concerns that somehow the Government were using this Bill to negate the value of Magna Carta and undermine all previous constitutional legislation. Clearly, that was not our intent. In the end, this is humble legislation intended to do humble things, as I have described in some of our earlier debates and discussions.
If Members of the Committee seriously think that they can improve the Bill by taking out Clause 1, they misunderstand our intentions on deregulating. We want coherent regulatory frameworks and a sensible parliamentary procedure to ensure that, when measures are required to make the regulatory framework simpler and easier for people to work, they do that job.
I am sure that both sides of the Committee recognise the need to deregulate, but in doing so we do not wish to put a weapon in the hands of the present or any future Government which could be used to abuse that objective. I remain unconvinced by what the Minister has said. Saying, for example, that orders should be outcome-directed, seems, basically, jargon. There should be a modest modification of the definition of burdens which appears in Section 2(1) of the 2001 Act. I am not sure that there is such a great difference between the definitions of the 2001 Act and this Bill, which the Minister suggests would make it inappropriate to use the old definition with some modification.
The reasons put up by the Minister for not using the 2001 Act are inadequately argued. As I indicated, this was introduced as a probing measure. It is therefore not my intention to vote against the Question that Clause 1 stand part. We will obviously consider what the Minister has said to see whether there is any practicable course to enable us to use this Bill to amend the 2001 Act, which is where I think it should have started.
Clause 1 agreed to.
After Clause 1, insert the following new clause-
“SECTION 1 ORDERS: REPORT TO PARLIAMENT
A Minister of the Crown shall annually lay a report before Parliament detailing, for each government department that made an order under section 1 in that year-
(a) what burdens have been removed, (b) what burdens have been simplified, (c) what burdens have been imposed, and (d) what the impact of each order has been.”
The noble Baroness said: The new order-making powers in Clause 1 are significant. If Parliament does confer these powers on Ministers, it is important that they are held to account and use them in the way Parliament intended. The audit proposed in this new clause should be easily carried out if departments stick to the better regulation agenda being espoused by the Government. It would be useful if the Minister could tell us how the operation of the new order-making powers is to be reviewed and what formal mechanisms the Government intend to deploy to ensure that they are used appropriately. The amendment does not seek to create an administrative obstacle to the use of Section 1 orders; indeed, we hope that far more orders will be made under the new scheme than was the case under the 2001 Act. The transparency of a formal report system will give an impetus to Ministers to make it a political priority to show that they are deregulating and removing red tape. From what I have heard expressed on all Benches so far in the debate, that is what we all want. I beg to move.
I support the amendment moved by my noble friend. It should not be difficult for the Government to accept it. They will know which burdens have been removed, which have been simplified and which have been imposed. From that they will know the impact of the orders. If they do not know these things, they should.
Hope springs eternal, but I wonder whether any more orders will be brought forward under Clause 1 as it stands. As I said at Second Reading, my experience of the previous system makes me wonder whether there are sufficient improvements here to achieve the swift delivery of lots of orders, a point made by the noble Lord in the previous debate. If there are many more orders, it is particularly important to ensure that the outcome is brought before Parliament once a year so that we can see whether this clause, one which makes us all anxious, has the effect the Government are hoping for.
I support my noble friend’s amendment, which is an extremely sensible and rather modest proposal. If Clause 1 is to remain, this should be the first of several amendments accepted by the Government. The amendment would provide two benefits: first, it would impose a useful discipline on the Government in drawing the material together, which might be valuable in itself; secondly, it would inform Parliament about what is being done under this measure so that we will have at least this mechanism for evaluating whether it is having the effect the Minister has said is intended.
I am a little puzzled by the amendment. I assume that the noble Baroness’s purpose is to encourage departments to make orders that would remove burdens. It you make an order removing a burden, you will have put into the report what you have done. The one person who would not get into the report is the person who does nothing. If we are going to name and shame, surely we want a long list of those who have not made orders, not a list of those who have. When the noble Baroness brings the amendment back at a later stage, perhaps she will include a suggestion that those who have done absolutely nothing should be at the top of the report in capital letters.
The noble Viscount, Lord Bledisloe, makes a very good point and no doubt we shall wish to return to it. It is not only Ministers and government departments who will need the information my noble friend’s amendment would provide, but also all those from whom burdens will have been lifted—notably those in industry and commerce, which are the bodies calling for more deregulation.
My mind was drawn back to the speech made at Second Reading by my noble friend Lord Sainsbury of Preston Candover who, when he was describing his experience in 1993, said:
“I suggest that it needs the input of industry, commerce, small firms and large companies. They are better placed to assess the priorities of deregulation than are government departments”.—[Official Report, 13/6/06; col. 140.]
One of the effects of my noble friend’s amendment—and I can understand why the Government may hesitate to accept it—will be to reveal the paucity of reports that are likely to come forward as a result of anything in the Bill. The Government will not want to advertise that.
The people who need to know what is being done are those who are enduring the burdens of over-regulation. As the noble Lord, Lord Goodhart, and others have said, we are all in favour of dealing with this mass of over-regulation with which we seem somehow to have saddled ourselves. We will need to know what has been achieved— which, I think, is at the heart of my noble friend’s amendment—and, as the noble Viscount, Lord Bledisloe, said, what has not been achieved.
I hope we shall return to the very interesting response that the noble Lord, Lord Bassam of Brighton, gave to an amendment brought forward by my noble friend Lady Wilcox on the first day in Committee. He said that perhaps we should have some sort of procedure by which those who are subject to burdens can initiate a process to make sure they are properly considered. The noble Lord, Lord Bassam, is nodding that that is what he implied. I thought that was one of the most hopeful things to come out of last Monday’s debates and I hope we shall hear more about it. But it will need both sides. We may not have achieved very much and very much more still remains to be achieved. It seems to me that our old friends, openness and transparency, require the Government to accept the amendment.
Noble Lords who have spoken to the amendment have been talking up the benefits of removing burdens from big business, small business and many other people, and a report to Parliament, on the face of it, sounds a very good idea. However, the problem with removing burdens from business is that, again, some people may suffer. If we are going to start saying what a great job we have done in removing burdens—some of which it may be a very good idea to remove—we should also list the people who have suffered. No doubt we shall hear from them in due course, if and when the Bill is passed. I hope that the Committee will look at both sides of the coin.
I hope the same because not all regulation is bad. However, this Bill is about deregulation and, as such, we ought to make sure that it comes into operation properly and that Parliament is informed of what is happening. That is why I support the amendment.
There are two other reasons why I support it. First, the amendment, if accepted, would impose a discipline on Ministers and their departments thoroughly to examine whether or not regulations are necessary, and then to bring forward to Parliament proposals for deregulation. Parliament will then, presumably, be able to debate the proposals to see whether they comply with what it wants. So, it is a good disciplinary amendment.
Secondly, we are often told when we ask questions that this information is not kept centrally. Of course, in order to see how deregulation is proceeding, it will be necessary for us to know what the position is overall and not department by department. The amendment would require the Government and departments to have centrally held information to enable Parliament to debate deregulation realistically. I therefore hope the Minister will accept the amendment.
This is an amendment with which I am familiar, in the sense that noble Lords opposite frequently table a reporting amendment to Bills to ensure that the standard and threshold of holding the Government to account are raised. I have some sympathy with that intent; reporting should certainly be part of the process. Yet admirable though this amendment is, ultimately I cannot support it. However, I can certainly support its spirit and advise your Lordships that we have already given a very clear commitment to having a review process. My honourable friend Mr McFadden gave that commitment in another place during a debate on a similar amendment.
We certainly support the idea that we should constantly look at how well the reforms are working. It was in part the review of the 2001 Act which persuaded us that we needed a rather more dramatic piece of legislation that would be more effective. So, if you like, a review of the legislative framework has already had an impact. It has meant that we have tried to design better procedures for the process of deregulating.
We also believe that all departments should keep their legislation under review. That is why the Government set up the Panel on Regulatory Accountability—the PRA— chaired by the Prime Minister, and why there are regulatory reform Ministers in each of the main regulatory departments. That is also why there is a Better Regulation Commission, keeping an eye on them all.
Departments are currently reviewing their regulations and drafting simplification plans, which include measures to reduce administrative burdens on business and the public and voluntary sectors. These will be published by the time of the PBR, later this year. The Better Regulation Commission will provide independent advice to government from business and other external stakeholders about new regulatory proposals and the Government's overall regulatory performance. It will continue the challenge role carried out by the Better Regulation Task Force.
It is perhaps worth saying that since 1 January this year, the commission has taken on a new responsibility to review the simplification plans that government departments and some independent regulators are preparing. The commission sits on the PRA committee reviewing the plans; and its opinion of a department’s plan will be made public at the time of the plan’s publication.
Departments will be required to revise these plans annually; as part of that, they will include details of simplifications delivered, including orders made the previous year. All departments are also obliged to report on their better regulation work as part of their annual reports, as they have done for the past two years. That picks up something referred to by the noble Viscount, Lord Bledisloe, with regard to a wider review to look at areas where the deregulatory genie has not yet reached. Members of your Lordships' House will be aware that while debating a similar amendment in another place, we gave very clear commitments.
In addition to departmental reports, we would expect departmental Select Committees to report on the annual reports I referred to, as appropriate. The Commons Regulatory Reform Committee, with its new expanded remit, will also take interest in these reports and departmental simplification plans.
Although I agree that we should be open to reviewing orders, it would be unnecessarily prescriptive to write that into the Bill. I am sure that Members of your Lordships' House share my view and that of Members in another place that there must be a cultural shift within Whitehall as a whole to deliver the real benefits on the ground to those who are being regulated. While we debate the Bill here, it may seem as though we are debating something in isolation, but Members of your Lordships' House may not see in the same way the work being carried out throughout the departments. There is a much greater desire to move the deregulatory agenda on and the Bill is a reflection of that, not an absolute in itself.
The amendment would impose an annual reporting cycle on the Government, which would be an unnecessary burden and may well deflect attention from the important work done by the task force, the commission and the various committees that look at regulations. It would be contrary to the spirit and the purpose of the Bill. Although I understand and sympathise with the desire to have annual reports, in the end it would be counter productive.
The noble Lord, Lord Jenkin, referred to comments that I made in earlier debates, possibly when I was summarising the portal that we have set up to encourage greater public participation in the deregulatory drive throughout government. That portal provides us with a sensible approach because it enables a much more interactive and interrogative means for business, the voluntary and public sectors, and people who require and are part of the general deregulatory flow to bring forward their propositions for deregulation. The Better Regulation Executive is currently discussing with departments the best way to use that portal so that we can have a regular summary of the progress that has been made towards particular items of deregulation that people have brought forward. That would provide us with a useful public window for what we are trying to achieve in a way that people can understand. Such practical measures would achieve much more than a burdensome annual report, which runs against the spirit of the Bill in terms of deregulation and ignores the important point made by the noble Viscount, Lord Bledisloe, that we should encourage departments which are less enthusiastic about deregulation than other departments which are keen to move that agenda forward.
The Minister talks about producing this report as a burden. He has given us a great description of the many excellent internal arrangements that will try to get more and better deregulation. But for goodness’s sake, you cannot describe as a burden the Government’s duty, having legislated for a Bill about which Parliament has many doubts, to tell Parliament how it is working. It will not be difficult at all because they will know the answer to all those questions. The only one that might present slight difficulties is the question of how much impact there has been in a short space of time, but I suspect that the people to whom the noble Lord, Lord Berkeley, referred—those who are disadvantaged by any measure—will soon talk about the impact. They will not wait a year to do it. It is extraordinary in this case, where we have a Bill that Parliament is doubtful about, to say that the Government think that the report would be a burden.
In all these things, I would argue that we have to be proportionate. The amendment calls for an annual report and other amendments would place reporting obligations on the Government. An annual report is disproportionate in terms of its likely impact on the deregulatory process. It may hamper some of the deregulatory work.
Pat McFadden gave an undertaking to report on the working of the Act within five years of it coming into effect. That is a sensible approach, because it will enable the Government to reflect on where there are strengths and weaknesses in how the legislation works, consider the legislation’s effectiveness, pick up on all the detailed work that I described earlier in responding to the amendment and enable us to publicise and promote the progress that has already been made. It is for that practical reason, and a desire to let civil servants and officials get on with the job, that encourages me to think that the amendment is excessive in its impact.
Perhaps I should also put on record that the simplification plans that I referred to will be published annually and publicly, and I am more than happy to ensure that they are placed in the Library of the House. We are trying to ensure that there is good quality information but that we are not necessarily tied absolutely to an annual reporting cycle which in itself may deflect from the important work of deregulation itself.
I am impressed and delighted by the number of people who have taken part in this debate. I was happy to hear the warm words of the Minister, and I thought that we were getting somewhere; but now I feel that we are not. We are back in the debate that we had on the 2001 Bill, saying all these warm things.
The Minister says that he wants this to be dramatic and effective—but “dramatic and effective” means the transparency of a formal reporting system. I pick up on the point made so well by the noble Viscount, Lord Bledisloe, whom I am delighted to see taking part in debates on these amendments. I hope that he will stay with us throughout all this, because the points that he makes are certainly being picked up elsewhere. But if the Bill requires every Minister from every department and his senior officials to report to Parliament, it will be self-evident when they have failed to pick up something or have done nothing. It will all be there for us to see.
At this stage, I shall not press the amendment, but I hope that the Minister will look at the matter again and see how much support there has been for such an amendment right across the House. That does not necessarily mean that my wording is perfect and it is the Minister’s Bill and his right to come back with whatever wording he likes. But unless we start hardening up and putting things on the face of this Bill, we are merely using warm words and wasting our time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
After Clause 1, insert the following new clause-
“DISAPPLICATION OF EUROPEAN COMMUNITIES ACT 1972
(1) An order made under Part 1 containing provision relating to Community Treaties, Community instruments or Community obligations shall, notwithstanding the European Communities Act 1972 (c. 68), be binding in any legal proceedings in the United Kingdom.
(2) In subsection (1)-
“Community instruments” and “Community obligations” have the same meaning as in Part 2 of Schedule 1 to the European Communities Act 1972; “Community Treaties” has the same meaning as insection 1(2) of the European Communities Act 1972.”
The noble Lord said: I had an opportunity of trailing this new clause the other day, so I shall try not to dwell too long on what I said then.
Most of the regulatory burden on business has its origin in Europe, and many may think that a deregulatory initiative that does not recognise that fact is little more than window dressing. The Government said that better and less regulation was a priority of the EU, but the figures that they cite in support of that proposition show nothing of the sort. At Second Reading, the noble Lord, Lord Bassam, said that the Commission had dropped more than 65 proposed pieces of legislation and had undertaken to simplify up to 1,400 pieces of legislation. In plain English, that means that while some measures in the pipeline are not going to be taken any further, there are no plans whatever to repeal any existing legislation.
The noble Lord, Lord Bassam, seems reluctant to admit that to the best of my knowledge not one single measure introduced by the Commission over the years has ever been repealed. That is hardly surprising. If you have a system under which only the Commission can introduce legislation, it is only the Commission that can introduce repealing legislation, and it is not in its nature to do so.
Where does that leave us? Have we just to accept that a burden placed on business is irremovable, and there is nothing to be done about it if that burden has been placed as a result of a decision in Europe? I suggest that if Parliament so wills, there is something we can do about it, and this new clause points the way. If the new clause is accepted, three things will happen. First, it will be plainly stated in legislation—for the first time, I think —that the 1972 Act, although of great importance, is no different from any other Act of Parliament. With the European Communities Act 1972, there was, in the words of the noble and learned Lord, Lord Bridge of Harwich, in the Factortame case, a voluntary surrender of sovereignty. What has been given, however, can be taken away. The Act can be repealed by any other Act, and other legislation can disapply it in specified cases. It is no bad thing for Parliament to assert that fact. If it does not, the time may come when the courts say, “It’s too late to assert that the 1972 Act is like any other Act; too late to ask the courts to affirm a law which contradicts a treaty obligation, even if Parliament states in plain and unambiguous terms that that is the law’s intent”.
I must emphasise that the new clause is not an invitation to the Government to break our EU treaty obligations. It is a reminder that Parliament is sovereign and can, by appropriate legislation, override earlier legislation, none of which is entrenched, and can certainly, if it so wishes, use machinery such as is provided in the Bill to make laws relating to Community obligations. The clause does not attack the 1972 Act, but merely states that, notwithstanding what is contained in the 1972 Act, a Minister may make an order removing or reducing a burden of the type referred to in Clause 1, and we can ensure by the use of clear and unambiguous words that the order is binding in any legal proceedings in the United Kingdom. The new clause is a timely reminder of Parliament’s rights—an assertion of Parliament’s sovereignty.
Secondly, I want to be sure that a Minister is able to make a legally binding and effective deregulation order where the original order was made in purported compliance with the 1972 Act, but in fact went further than was necessary to meet our EU obligations. Surely the Bill should make it clear that a new order could be brought into force doing no more than is strictly necessary to comply with the EU law. When we were last in Committee the noble Lord, Lord Bassam, seemed to be suggesting that the powers in this Bill could be used to get rid of what is often called “gold-plating”. I suppose it depends what one means by gold-plating, but I want to make absolutely sure that a Minister will have the power to revisit regulations that have been made under the 1972 Act, but which on later consideration are thought to go further than necessary to meet the Community obligation in point. The new clause would give that assurance.
I can give two examples where the new clause might be helpful. One example of how the power might be used is in relation to the droit de suite directive, which gives artists the right to a cut when their works are resold. Although the Government opposed the directive, and it was imposed on us only by majority voting, the Minister did not take what many might have thought was the obvious course of implementing the directive to the letter, but proceeded to enlarge its scope dramatically by applying it to transactions of far less value than those covered by the agreed scheme. This provision could be used to take the regulations back to what is strictly required.
Another example was highlighted by a case in the Court of Appeal the other day. Under the EU regulations, boats less than 10 metres in length do not have to keep records of their fish catches. In Britain there is no such exemption for small boats. In that way Defra makes the common fisheries policy even more onerous than is necessary for many of our fishermen, and ensures, incidentally, not that fish stocks are preserved but that the fish are caught not by British fishermen but by those of other nations.
This new clause is an assertion of sovereignty and would meet the need to ensure that the Bill’s machinery can be used in respect of orders made under the 1972 Act, in particular when an order has gone further than is necessary to meet the Community obligation. Finally, the new clause would enable the Government in an exceptional case, and after appropriate negotiations, to say to our partners in Europe and/or the Commission, that we insist on deregulating on our own terms and propose to make such deregulatory law binding on the judiciary in this country, notwithstanding the 1972 Act. I submit that that is a common-sense approach. It lacks common sense and it is an insult to Parliament to say that what is done in Europe, however absurd it may be, is inevitable and that in no circumstances can Parliament touch it. With that I could never agree. I beg to move.
I have added my name to the amendment standing in the name of the noble Lord, Lord Waddington, because it fills an extraordinary gap in the Bill. I understand and approve of the value of the Bill to deregulate and to reduce red tape. As the Minister said at Second Reading, the Bill will,
“effect real change in the UK’s regulatory environment”.
He went on to say:
“it is of crucial importance for the continued competitiveness of this country that any Government pursue as many measures as possible to ensure that regulation is kept to an absolute minimum so that businesses … can concentrate their efforts where they add most value”.—[Official Report, 13/06/06; col. 121.]
We can all agree with that.
The Minister went on to trumpet the fact that the UK was rated the second most competitive economy in the EU, which is rather like boasting that you are the second most successful penalty taker in the English football team—it really is not terribly relevant. We are competing not just in the EU but globally, and our global competitiveness is being eroded by the torrent of EU legislation that is brought forward without, as my noble friend Lord Waddington said, our apparently being able to change a single syllable of it, even where we disagree with it. It is important that the amendment is considered seriously in the light of the fact that between 50 per cent and 75 per cent—estimates vary—of our business legislation is imported from the EU. I believe that the Government said that the figure was 50 per cent in an Answer to my noble friendLord Pearson, while the German Government have said that 80 per cent of their laws and burdens on business come from the EU.
The think tank Open Europe has produced a study which found that EU legislation has been responsible for 77 per cent of the costs of regulations on UK businesses since 1998, at a cost of £30 billion to the UK economy. But none of those regulations, as my noble friend Lord Waddington pointed out, can apparently be touched by Parliament. Neither the other place nor this place can change a single syllable of any EU regulation. It simply has to be rubber-stamped and I do not believe that that is at all helpful when it comes to lessening the burden of deregulation, as this Bill is purported to do.
Perhaps I could give a few examples from the coalface of the cost and burden of these regulations. I am a farmer and just a few of the regulations that I have to face are as follows. I begin with the 18 cross-compliance directives which govern our payments through the rural Payments Agency from the European Union. We have the fallen stock directive, which is an expensive scheme to stop us disposing of fallen stock on our own farms. “Fallen stock” does not refer to the FTSE index but to animals that die on farms. We have the horse passports directive, which is totally unnecessary and completely unacceptable. It is just to prevent food from those who eat horse flesh on the Continent being affected by exports from this country. We have the waste disposal directive, which is adding costs by the day to agriculture; the work at height directive, also known as the “how many men does it take to change a light bulb?” directive; the temperature at work directive; the veterinary medicines directive; and the waste of water framework directive, which I am struggling with at the moment. For some obscure reason it requires all farmers and rural businesses to put non-return valves on every single tap on their farm and to make sure that they cannot be used to hose anything down. The reason for this, apparently, is that there may be some danger, however remote, of contaminating the mains water supply. I wrote to our enforcing agency through the Severn-Trent river authority, asking it whether there had ever been such a calamity, but as yet I have not had an answer. Meanwhile, I have had several letters from the inspectorate and I have gone round the farm installing these various bits and pieces. So far it has cost £2,800, but counting.
If this Bill is to be effective, it has to deal with EU legislation, as well as home-cooked legislation. Therefore, I hope that the Committee will listen very carefully and take on board the import of this amendment.
I too have signed this amendment, so shall speak to it. I remind the Committee of the 1972 Act and the debates which we had in Parliament at that time. As I was a Member of the House of Commons and took part in those debates, I have a memory of what was said about the impact that the 1972 Act would have on British life. We were assured when we were giving away the right to make our own rules that we had the veto. There was the “empty chair” situation, whereby nothing really mattered because if things affected us adversely, we could veto them. But times have changed. Gradually, over a period of time, ratchet by ratchet, treaty by treaty, the veto has been virtually taken away. Now, it almost no longer exists and everything is done by qualified majority. When regulations and directives are made, the United Kingdom has an influence on those decisions of only about 8.5 per cent. One could say that 55 per cent or 60 per cent, or whatever, of our laws are not being made here in Westminster, but that they are being made in Brussels by 24 countries, including ourselves, on the basis of qualified majority voting, and that decisions that are inimical to our own interests may very well be made.
The amendment tabled by the noble Lord, Lord Waddington, attempts to deal with this and I hope that it would deal with the matter if it were accepted. It makes the assertion that British sovereignty remains completely intact, given that all appearances suggest that it does not. In Committee, the noble Lord, Lord Bassam, stated:
“We want open markets—that is what the single European market is about”.—[Official Report, 3/7/06; col. 44.]
But, of course, we are not simply talking about the single European market; and, in any event, only10 per cent of our GDP is involved in such trade, which is a point that the noble Lord, Lord Pearson, would have made had he not had to visit his physician today. However, the regulations that come from Brussels affect the whole of British industry, not just the 10 per cent of it that is involved with the European Community. Regulations are being placed on areas of our industrial and, indeed, our national and political life, that are completely unnecessary for operations in this country and are sometimes not necessary in respect of the European Union, either.
In addition, because we are part of the EC and the European single market, we are not allowed to decide what our trading policy should be. The results of that have been seen just recently, when the European Union placed tariffs on shoes coming from China and Vietnam. Perhaps people think that that does not matter, but it does. It will certainly matter to people with children, because we now find that the imposition of those tariffs will put 15 per cent on the cost of British shoes—so we have lost control of our trading arrangements.
The other point I wish to make is that we are not really in a European Union market that believes in free trade, which I thought Her Majesty's Government, the Opposition and everyone else believed in. In fact, the single market is a closed market and access to it is only by agreement and is not open in the true sense of the word. So, again I say that the amendment is important.
Once a regulation has been made, as noble Lords will know, it is incumbent on this country to put it into operation, whether it is gold-plated or not. Once a regulation is made by the Council of Ministers and once qualified majority voting is applied, it is incumbent on this country to put it into operation and there is nothing we can do to alter it.
What are the consequences of that? I have been questioning the Government about a recent consequence which arises from the hazardous waste directive. The directive affects the use of lead and some other metals in electrical and electronic goods, and it will affect industries in this country to a large degree. It will put up their costs and, indeed, will put some companies out of business. I have tabled Questions to the Government about this, to which the Answer has been, “Well, we can't do anything about it, and it's in the best interests of the single market that we can't.” So, once a regulation is made, it does not matter how much it costs industry in this country, it has to be imposed and there is nothing that our Government can do about it. The cost of the directive throughout Europe will be about £44 billion, yet it is imposed on individual countries and there is nothing that they can do to protect their industries from possible bankruptcy. One could give all sorts of examples of the way in which the regulation operates in the European Union.
At Question Time today, the Lord Chancellor accused me of being anti-European. That simply is not true. I am not anti-European: I am simply anti-European Union and anti the impositions that it makes on our sovereignty and on our industry and national life. It affects not only our trade but virtually everything, and we are not the only ones involved. The other day, the Bavarian environment Minister, Werner Schnappauf, talking about European over-regulation, said that in the 1990s the German regions had to comply with 90 regulations a year but that now the figure is closer to 500 a year. If that is happening in Germany, it must also be happening in this country. Thus, there has been a five-and-a-half-fold increase in the number of regulations since the 1990s, and that is an enormous burden on our industry and on the country generally.
I have spoken for long enough—I am sure that some people think that I have spoken for too long—but I feel very strongly about the way that we are governed by regulations from the EU, which, in the context of the United Kingdom, have no real relevance. I believe that, by agreeing to the amendment, something could be done to mitigate the baleful effects which I fear come from our membership of the European Union and the way that it is operated.
I had assumed that something important had kept him from this debate. I certainly do not intend to cast any aspersions on the assiduity with which he pursues this cause.
There is a short answer to this amendment. Any attempt to use the procedure in the Bill to override European legislation would plainly be highly controversial and inappropriate. It would have to be dealt with by primary legislation and primary legislation alone. On gold-plating, nothing in the Bill makes this amendment necessary or would prevent the use of this procedure to remove the gold-plating element in any secondary legislation that was introduced under the European Communities Act.
I support my noble friend's amendment. I speak with a very clear memory of having taken the financial resolution to the European Communities Bill, as it then was, through the House of Commons. It was an extremely unusual procedure because an entire day was given to debating the financial resolution in contra-distinction to the normal maximum of one and a half hours. In those days, I was a very firm supporter of British membership of the European Union, or the Common Market, as it was then called. I wrote an article, which was quoted in a number of places, called Integration or Isolation—the title speaks for itself. However, my experience since then has shown that that has altogether got out of control; it has gone too far. Although I do not for one moment go the whole way with the noble Lord, Lord Stoddart of Swindon, the amendment moved by my noble friend and the very measured terms in which he moved it are far short of the apocalyptic wishes of the noble Lord, Lord Stoddart of Swindon.
My noble friend made three points. The first was that it is important that the British Parliament should assert what has been at the heart of our jurisprudence over centuries: the supremacy of Parliament. I could quote a number of statements by prominent jurists to make it clear that, as is always said, no Parliament can bind its successor and that the courts have an inalienable duty to apply the law as propounded by Parliament. I believe that we are in danger of allowing the 1972 Act somehow to become part of a constitution that cannot be amended by the British Parliament. My noble friend has stated that as his first reason for his amendment and I think he is right.
His second reason was his clear assertion—here he is at one with Ministers—of the wish to avoid the charge of gold-plating. It seems to me that, in these circumstances, it is entirely right that when an order falls to be made to implement a European directive, it should be perfectly possible to implement it in a way that does not involve gold-plating. We have had a recent example of the European directive on the use of lead in manufacturing which immediately had all the organ builders in Britain up in arms. The Government then had to say, “Oh, but it does not apply to organ builders”. They had no power to say that because the directive was completely sweeping. Would they not have preferred a procedure under which they could have said, “We are going to interpret this order in this way”, and so it would not apply to the people who provide one of the glories of the Anglican Church and other Churches, the tradition of organ music?
When my noble friend came to his third point, on which such emphasis was laid by the noble Lord, Lord Stoddart of Swindon, he was extremely careful to say that this would have to be only at the end of extremely careful diplomatic discussion. It could not simply be a question of kicking sand in the commissioners’ faces, but there would be a case in those circumstances for saying, “Look, I am afraid we must ask for a derogation”. To secure that, they would need the power to implement the order differently from how the Commission had perhaps assumed.
That does not seem to go against this country’s obligations, particularly under the 1972 Act, to the European Union in any way, but provides the Government with an avenue of escape. The noble Lord, Lord Goodhart, said it would clearly be controversial and entirely wrong to do it as an order under the Bill. But the point is that this Bill will be an Act, and the Government would clearly only do it if it had wide support in the country. They would say “We are not going to do it as the Europeans apparently expect; we have negotiated that, it has been agreed, and we now have the power to do it differently”. In those circumstances, I see my noble friend’s amendment as restating an important principle—the sovereignty of Parliament—in a way that gives the Government avenues of escape, so that we can avoid some of the absurdities which have landed burdens on industry and others in the country.
I have never been regarded as one of the “usual suspects”, to quote again the noble Lord, Lord Stoddart. On the contrary, I have usually been regarded as a warm supporter of membership of the European Union, and have been so all along. There must be some flexibility, however. The “magic words”, as they have been described in another place, in my noble friend’s amendment—
“notwithstanding the European Communities Act 1972”—
would bind the courts. They would have to have regard to a later Act passed by Parliament. My noble friend’s amendment is a careful, modestly worded proposal for something we could certainly accept.
Despite the rather drastic title that my noble friend has given this amendment, it is not about an argument with the European Union. As he made clear, it is simply a reminder to all of us that Parliament is sovereign.
My noble friend wants to be sure that a Minister can bring in an order that does no more than is necessary to comply with European Union law, to ensure that there is no gold-plating and that the Minister can revisit powers that he or one of his predecessors might have made under the 1972 Act if he thinks that there has been gold-plating. My noble friend mentioned the droit de suite example, where we know that Ministers in the Department of Trade and Industry indulged in quite a degree of gold-plating. He then mentioned the recent issue of small boats under 10 metres, and the case of the two fishermen from Eastbourne; I think that is before the courts.
The amendment raises the question of whether, as my noble friend put it, Parliament is sovereign, so that it can pass an Act—or, in this case, an order—that effectively disapplies the European CommunitiesAct 1972 on a case-by-case basis. Section 2(4) of the 1972 Act provides that past or future laws shall be construed and have effect subject to the provisions of that section. Section 2(1) of the 1972 Act incorporated all existing EU legislation into UK law, and,
“all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties”.
The effect of the Act is that Community law takes precedence over United Kingdom legislation. The Factortame case, quoted by my noble friend Lord Waddington, resulted in a United Kingdom law being overruled by the European Court of Justice. I will not go into the details of that case now, but many have argued that if the United Kingdom legislation in question in that case had expressly disapplied the 1972 Act, it was still incumbent on United Kingdom courts to uphold the United Kingdom law because of the sovereignty of Parliament.
The Government have always admitted that Parliament has power to repeal all or any of the Acts that give effect to European Union treaties, even if that would put us in breach of our treaty obligations. Perhaps the Minister will confirm that fact. I will not cite all the references, but, for example, in another place on 24 March 2004 the then Minister for Trade and Investment said as much. He said that,
“our position has always been … clear, and we have held it throughout. Parliament already has the power to legislate contrary to our treaty obligations”.—[Official Report, Commons, 24/3/04; col. 317WH.]
For the avoidance of doubt, the courts have also clearly expressed that. For example, in the so-called metric martyrs’ case, Thoburn v Sunderland City Council, Lord Justice Laws said:
“For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the Court would apply this test: is it shown that the legislature’s actual—not imputed, constructive or presumed—intention was to effect the appeal or abrogation?”.
He went on to state that constitutional statutes, of which the European Communities Act is an example, could be abrogated only by unambiguous words in the later statute.
So, given the judicial and ministerial unanimity about this principle, there is no reason not to accept the amendment tabled by my noble friend Lord Waddington. It merely puts the principle of parliamentary sovereignty, expressly stated, in this Bill. As I understand it, it would not change the current situation, but it would make clear where Parliament stands on our European Union obligations.
Will the noble Lord explain why, in the 16 years after 1972, when his party was in power, at no stage was such an amendment introduced—not in the 1994 Act or anywhere else? Was there a great obstacle, so that only when the Conservative Party is in opposition does it suddenly become capable of amending the rights of Parliament?
The noble Lord is quite unfair. The deregulation Act that we introduced in, I think, 1994, was a very different animal from this Bill. My noble friend Lord Waddington felt that in the light of this Act it was worth getting the provision down on paper and putting it in the Bill. That is why he brought forward this amendment, and why we are prepared to support it.
In reply to the noble Lord, Lord Desai, it is the job of oppositions to do just this. It would be difficult for a Minister to make that speech, nevertheless it is true.
Before the Minister joins the Peers on his Benches and the Liberal Democrats in laughing at what my noble friend behind me said about farmers’ difficulties—because there is a habit of laughing whenever somebody who is violently against them speaks—I offer to take any noble Lord from those parties to farmers living near me who will tell exactly the same story about what regulation is doing to them. Most people in farming find it very difficult to make a living. The noble Lord behind me may be able to pay £2,800 and more because of the directive about water, but many farmers cannot. I hope that noble Lords are not going to laugh at what is being said about this amendment.
In response to the noble Baroness, Lady Carnegy of Lour, I certainly was not laughing at the plight of farmers. I fully accept that many farmers are struggling to make ends meet and to conduct their businesses as we would all wish them to.
I have no doubt that, because of its deregulatory spirit, our legislation is designed to make easier the regulatory regime for farming businesses. We seek a regulatory regime that is in balance and that works in everyone's interests. I see no mirth in that.
The amendment is rather different. In pure drafting terms, I must tell the noble Lord, Lord Waddington, that its inclusion would add nothing to the Bill, as orders validly made under Clause 1 are already binding in any legal proceedings in the UK, by virtue of their being UK legislation.
However, the intention behind the amendment, however carefully argued, seems to be to underline that the power in Clause 1 could be used to enact legislation that is inconsistent with Community obligations—hence the words,
“notwithstanding the European Communities Act 1972”.
Indeed, it would appear that the new clause is intended to provide for an express order-making power to override Community law.
Despite what I have heard, I think that the new clause would pretty speedily lead to infraction proceedings, and would be likely to be found in breach of Community law by the European Court of Justice. That is not just my view; it is also that ofMr William Cash, who tabled a similar amendment on Report in the House of Commons. In promoting his amendment, he conceded that if orders were passed that were incompatible with Community law:
“Predictably, there would be ... infraction proceedings”.—[Official Report, Commons, 15/5/06; col.757.]
Furthermore, if the power provided by the new clause were used to make an order incompatible with Community law, the Minister responsible would be in breach of the Ministerial Code, section 1 of which requires a Minister to comply with the UK’s international obligations.
In domestic court proceedings, judges would be required to regard an order made under the power provided by the proposed new clause as binding, notwithstanding the European Communities Act, and thus notwithstanding the usual requirement under the Act for domestic judges to follow the case law of the European Court of Justice. However, that would not prevent the ECJ finding that the order breaches Community law.
It is perhaps worth noting that, were an order to be made under the proposed clause that was incompatible with Community law, it could be followed by proceedings seeking either a lump-sum fine or a daily penalty fine until the UK came into compliance with Community law.
Furthermore, when a member state is clearly flouting Community law and in so doing causing financial or other harm, the Commission may at short notice seek interim relief—an injunction—from the president of the European Court of Justice, as happened in the now much-cited Factortame case.
Damages are also available where a member state infringes a Community rule of law conferring rights on an individual or company where the infringement is “sufficiently serious” and a causal link can be shown. It would be extremely difficult to avoid liability for such damages in appropriate cases.
I cannot see that the new clause takes us very far; nor do I think that it achieves part of what the noble Lord, Lord Waddington, sought in moving it, which was to prevent over-implementation—the gold-plating of which he and, for that matter, Ministers are wary. I think that I can make the case that the amendment is unnecessary to deal with gold-plating. Clause 1 can already be used to remove it—a point already made by the noble Lord, Lord Goodhart, in opposing the amendment.
On gold-plating, as I think I explained at Second Reading, and I am sure I have done since, we have also put in place the Davidson review, which is considering the over-implementation of EU legislation. We have called for evidence for that, and the review will report to the Government in the autumn. No doubt that will stimulate wide public debate, which is right and will be very helpful to us and the regulatory framework.
The noble Lord, Lord Goodhart, made the points that I have made: that the power is already in the Bill, the legislation would be contrary to Community obligations and it would make the Bill and its order-making power highly controversial. In absolute terms, Parliament could revoke the 1972 Act if it wanted to because ultimately it is supreme. I see no need for the amendment. It would not achieve what the mover wants it to achieve—an end to gold-plating. Ultimately, Parliament is sovereign. If we were to adopt the amendment, it would run us into difficulties when working with our European partners and would be likely to lead to infraction proceedings, which could be equally damaging for our reputation in the European international community. For all those reasons, I must resist the amendment.
Noble Lords will appreciate from what has been said that an amendment with identical terms was moved in the other place. I have to tell the noble Lord, Lord Goodhart, whom I greatly respect—I have certainly paid full attention to what he has said on these matters—that I recall that the Liberal Democrats in the other place seem to be rather impressed by the amendment; certainly some of them spoke in favour of it. I cannot say with certainty that they all voted for it, because I do not have Hansard in front of me, but I have the clearest recollection that the Liberal Democrat leading for his party spoke enthusiastically in favour of the proposed new clause in the other place. Whether that is a matter to which we should pay great attention and on which we should place great weight, I know not, but it is important to put the record straight.
The other thing that I should tell your Lordships is that a great deal of work went into drafting the amendment, because we are clearly dealing with sensitive constitutional issues. The matter was discussed at length with parliamentary counsel, and I think the Committee will take it from me that this is the wording which the Government would have been asked to accept as the correct wording of a new clause if they had wished to achieve the three aims to which I referred. If they had wished to make absolutely sure that the Bill could be used to get rid of gold-plating, this is the appropriate wording. If they had wished to make it plain in the measure that the 1972 Act can be disapplied, this is the correct wording to use—of that, Members of the Committee can be absolutely certain.
To return to what the noble Lord, Lord Goodhart, said, if the procedures available to this House were used with the intention of enacting law that made us fully compliant with our EU obligation, but having used those procedures, tailor-made for meeting our EU obligations, the Government believed that we had gone too far, I doubt very much whether, without this wording, it would be safe to use this measure to get rid of the gold-plating and to amend what we had originally done.
I do not know how certain the noble Lord, Lord Goodhart, is in his mind. I am not certain in my mind, and I would rather be sure. Common sense tells one to spell out clearly in this measure that it could be used to get rid of gold-plating. This was not the matter which was dealt with by the noble Lord, Lord Goodhart. We have not done it yet in any statute, but it is about time that we made it plain on the face of a Bill that there is nothing all that special about the 1972 Act, which can be disapplied in a particular case if the appropriate wording is used. If it is disapplied, our courts would be obliged to give effect to Parliament’s plain intention if that was clear in the Bill.
I should like to clarify one point. I have listened carefully to the noble Lord, Lord Waddington. When talking about the wording of his amendment, he got close to suggesting that it was in some way given the Government’s blessing or approval. That is not the case. I know that there were discussions with the Public Bill Office, which probably sought advice from parliamentary counsel. That is rather different from saying that this is Government-approved wording to achieve the objective which the noble Lord is seeking to secure by virtue of this amendment. I want to make clear that this amendment does not have Government approval. Whether it works is another matter. I have described exactly what I understand to be the effect of the amendment. I have also advised the Committee that Clause 1 tackles gold-plating perfectly well.
I can assure the noble Lord that I never thought that the amendment had the Government’s approval. I am saying that this is the appropriate form of words to use if one wants to be absolutely sure that this Bill can be used to amend a provision which was originally introduced in purported compliance with an EU obligation, but was later thought to go too far. We must make sure that the Act can be used for that purpose. I therefore commend the new clause to the Committee, and I wish to take the opinion of the Committee.
Afghanistan: UK Forces
My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Defence. The Statement is as follows:
“With permission, Madam Deputy Speaker, I would like to make a statement about UK deployments to Afghanistan.
“On Thursday, I spoke about Afghanistan during the defence debate. I reiterate the enormous debt we owe to the British soldiers who have given their lives, and who have been injured, serving there. I also salute the bravery of all of our forces working to bring about lasting change in Afghanistan.
“On Thursday, I also said we had received requests for additional forces in Helmand and that I would announce our response as soon as possible. I will do that today. But first I want to place this response, and indeed the whole of our deployment to Helmand and Afghanistan as a whole, in its proper context.
“On 11 September 2001, a devastating terrorist attack was launched against the West from within Afghanistan’s borders. This happened at least in part because we abandoned Afghanistan to become a failed state after the Soviet occupation. And this is why it remains overwhelmingly in our national interest to ensure Afghanistan does not revert to a haven for terrorists. It is also in the interests of the Afghan people, the vast majority of whom have no sympathy for terrorism or violent extremism. There are many malign influences holding the Afghans back and we need to fight them, but we should be under no illusion about what is required to succeed. Only by rebuilding Afghanistan, by strengthening its Government, its security forces and its legal system, and by tackling its desperate poverty, will we be able to help Afghanistan make real and lasting progress. I have heard all sides of the House agree that we should help. The UN agrees. NATO agrees. Thirty-six countries are providing troops to seal their agreement. We all agree. Everything we do and say should reflect this consensus.
“It is also important to recognise where our efforts in Helmand stand in relation to the strategy for Afghanistan as a whole. NATO has been in charge of this mission for three years. It has helped generate the confidence for millions of refugees to return, and improved access to better medicine and education. It has followed a clear plan to expand security and reconstruction, from the north, to the west, and now to the more challenging south. We have been engaged in that process throughout, having until recently provided a provincial reconstruction team in Mazar-e-Sharif in the north. The southis more challenging, but this was always well understood—which is why NATO sought a firm platform of progress in the north and west first.
“Let me turn specifically to Helmand. We began deploying to Helmand in February, building up to full operating capability on 1 July. It has been said that we have been over-optimistic about that deployment, that we told the House this would not be difficult and that we sent the wrong force. None of this is true. We said from the start that this was going to be a challenging mission. My predecessor’s Statement to this House on 26 January included a sober assessment of the threat. The force package reflected this. It was designed by the military and endorsed by the Chiefs of Staff. It contained attack helicopters, artillery and armoured vehicles. We deployed tough, capable units, with robust rules of engagement, because we expected violent resistance.
“We knew that the Taliban, the drugs lords and certain tribal elements would resist any attempt to bring security to the people of Helmand. We knew that the kind of people who behead teachers, burn schools, smuggle drugs and assassinate government officials were not likely to stand by and allow progress to happen. Yes, we have taken casualties, but we have overmatched the opposing forces every single time we have faced them. They have tried to block our deployment, and failed. They will continue to try to disrupt our mission—and they will fail again.
“Let me turn now to that mission. Some say it is confused and that it is spurious to say that this is about reconstruction, when the reality for soldiers has been fighting. We always knew that there was a probability of violent resistance. That is why we sent soldiers to do this task. But that does not change our overriding purpose—which is to rebuild.
“We have been accused of naïvety by drawing a distinction between the ISAF mission to spread security and the US-led mission focused on counter-terrorism. But this distinction is not naïve at all. In both cases, soldiers will have to fight, but the nature of the ISAF mission reflects the fundamental fact that we will not reach a lasting peace simply by killing all who oppose us. We will reach it when Afghanistan has changed; when the Government have been able to deliver such security, development and prosperity that the ordinary Afghans will no longer tolerate terrorists and criminals in their midst. This is why rebuilding is our mission. Our forces on the ground understand this. The Afghans understand this. The mission is simple; it is the delivery that is complex.
“That complexity arises from the situation. Three decades of conflict have stripped the south of all signs of governance and robbed many Afghans of hope. And in that uncontrolled space, violence, criminality, narcotics and extremism have flourished. We have confronted these threats and learnt much about them since we deployed. As with any deployment, these experiences have allowed us to review our forces and our approach. That is what we have been doing in recent weeks. Let me explain why we need to adjust and strengthen our force structure in Helmand.
“The original intent was to tackle the challenges incrementally, spreading security and reconstruction from the centre of Helmand out. But commanders on the ground grasped an early opportunity. They saw the chance to reinforce the position of the local governor, the Afghan Army and police by going into northern Helmand and challenging the impunity of the Taliban there. In doing this, we moved faster towards achieving our ultimate objectives, but we extended ourselves. This is a development we must respond to. But our actions have brought about this development—our decisions and our determination to grasp the challenge. It is not, as some suggest, a failure to anticipate a violent response to our arrival. Yes, the violence has increased, but that was inevitable. We are challenging the power of the Taliban and other enemies of the Afghan Government, and they are reacting. But despite their efforts, we are spreading security.
“Our commanders have asked for additional forces to secure these early advances in the more remote communities in the north, while also being able to make progress in central Helmand. Last Monday, I said I was aware of ongoing work on additional resources. I was also aware that as part of this process, the chiefs of staff were going back to operational commanders and urging them to ensure they had asked for everything they needed. This iterative process produced a recommendation which I received on Thursday, as I said in the House on that day. I and the chiefs of staff have considered this recommendation and I have now endorsed it. I am grateful for the support and assistance of other departments, especially the Treasury, in working through the necessary detail of this process as quickly as possible.
“Let me outline the key elements of this additional force. To accelerate the reconstruction effort in the current security environment, we will deploy 320 engineers from the Royal Engineers, 28 Engineer Regiment, to start projects to improve local infrastructure. A company from 3 Commando Brigade Royal Marines will provide force protection for them. These deployments will take place in September. We will deploy an additional infantry company, drawn from the 2nd Battalion, the Royal Regiment of Fusiliers, to provide more mobile forces, and two platoons, from the 1st Battalion, the Royal Irish Regiment, to provide additional force protection. There will be small increases in headquarters staff. We will also boost our medical and logistical support to reflect the increase in troop numbers.
“We will step up our efforts to build the capacity of the Afghan National Army. These brave soldiers have fought side by side with us in recent months and are the key to our eventual exit strategy. We are therefore deploying additional staff in Helmand, and to the regional Army headquarters for the south. Great strides have been made already in this essential task and, following the forthright discussions I had with Afghan Defence Minister Wardak, additional Afghan troops have been sent to Helmand. More will follow. There are also around 2,300 Afghan police and military in Helmand, building to 4,800 or so in 2007.
“As with previous deployments, there will be a requirement to deploy reservists. There are some 150 reservists serving in the joint operational area, including members of the sponsored reserves. Some 450 call-out notices will be served on individual reservists to fill approximately 400 posts in theatre. One of the main reasons for the increase in reservist numbers is the planned deployment of100 reservist personnel from 212 Field Hospital.
“These enhancements—some 870 personnel—will place additional demands on our air transport. We have already increased the flying hours available for attack and support helicopters, as requested by commanders. Today I can say that we will also be making more support helicopters and one additional Hercules C-130 available. We also plan to deploy a radar installation, provided by No 1 Air Control Centre, Royal Air Force.
“All these additional deployments will be made as soon as possible. But I also want to cover the planned changes to the force structure resulting from the roulement in October, when the units currently comprising the Helmand task force, drawn predominantly, but not solely, from 16 Air Assault Brigade, will complete their tours. They will be replaced by units drawn principally from3 Commando Brigade Royal Marines, including 42 and 45 Commando, and other supporting elements including 12 Signal Regiment.
“This roulement will also involve a change to the force structure, reflecting the differences in the two brigades’ structures and equipment, including the requirement to support the Commandos’ Viking armoured vehicles. This represents around an additional 125 personnel.
“The House will also be aware that last month I announced the deployment of 130 personnel from 34 Squadron of the Royal Air Force to increase force protection at Kandahar airfield.
“This is a complex picture. Some troops will be going immediately, others in October; some will constitute an enduring addition, others are being deployed on a surge basis. But as a result of today’s announcement, the steady-state size of the Helmand task force will increase between now and October from some 3,600 to some 4,500 personnel.
“I am aware that our Armed Forces are heavily committed. As I said in the personnel debate, around 18 per cent of the Army is currently deployed on operations. This is challenging, but sustainable. Taking into account deployments in Iraq and the planned increase in personnel to Afghanistan, most of our deployable units will operate outside harmony guidelines. I do not accept this lightly, but I do believe it is necessary, and judging by comments made in this House in recent months, so do the majority of honourable Members. We will do all we can to minimise the impact of this, and we will continue to seek further contributions from our NATO partners to relieve the pressure in some of these areas.
“Some commentators have suggested that there are insufficient infantry soldiers deployed in comparison to the force’s overall size. Let me be clear that the delivery of this mission is not borne by the infantry alone, and it does a disservice to a great many brave men and women to suggest otherwise. Of the six deaths in Afghanistan since the deployment, half have been from other arms. The infantry do have a challenging task, but so do all our forces in Afghanistan. Airpower, artillery, light armour and others are involved in combat. But the work done by the provincial reconstruction team, the training teams, and those who enable the others to operate is every bit as essential to eventual success. Some more infantry are indeed deploying, but the fundamental balance of combat forces to others carrying out vital roles will not change. This is because the mission has not changed.
“There have been questions raised about the capability of NATO, and of the intentions of the US. NATO now has many more troops, to reflect the greater challenge in the south. Rules of engagement have been made more robust. This morning I spoke to Commander ISAF, General David Richards. He told me that in the south there were effectively no caveats placed by nations on the use of their forces. Across Afghanistan he was seeing a new NATO where such caveats were becoming a thing of the past. He also said he was confident he had the forces to do the job, and that he had been encouraged to see nations suchas Germany and Spain considering making additional forces available.
“I believe that NATO is thoroughly fit for this role. It has been suggested that because it does not have forces in every province, it cannot succeed. But this misses the fundamental point that we are in a stage when NATO is expanding in Afghanistan. Months ago, there were no NATO troops in the south at all, and few US troops. Soon there will be nearly 9,000 in the south, part of a total of around 18,500. NATO is building on a success that many seem determined to ignore.
“As for the US, last week I spoke to General John Abizaid, the US commander responsible for Afghanistan and Iraq. He was absolutely clear about the US commitment to Afghanistan. The US is not leaving this to NATO. It is part of NATO and is likely to be the biggest force contributor in Afghanistan for some time to come. Accusations that it is abandoning NATO are misplaced.
“Lastly, I want to address counter narcotics. I said that stability was the key to Afghanistan’s future. Part of that stability must be delivered by the Afghan Government facing up to the evil of narcotics. President Karzai’s personal commitment to this has been clear, and we must help. Again, the aim is simple, even if the implementation is difficult, and it is the same aim as for all other aspects of our task—to rebuild. We will make a lasting impact on the narcotics industry only by strengthening all aspects of Afghan life, so the economy can function without drugs money and farmers have alternative livelihoods to turn to. This will take time but the process must start now.
“Our soldiers are not narcotics police and we do not ask them to be. They are not waging a narcotics war; they will not destroy poppy fields and fight farmers for bags of opium—they are helping to create the conditions of security and development in which the narcotics industry will be weakened and eventually driven out by the Afghans themselves.
“I trust that I have made my position clear. My decisions on these matters have been shaped by what I saw and heard when visiting Afghanistan. Our people there are doing a fantastic job in very difficult circumstances. They know why they are there. They recognise the importance of their task. They have achieved a great deal already and I intend to give them what they need to secure these achievements and help the Afghans towards the stable future they deserve”.
My Lords, that concludes the Statement.
My Lords, in thanking the Minister for repeating the Statement, I am bound to express concern that what it has told us today clearly comes as more of a surprise to the noble Lord and his ministerial colleagues than to the rest of us. The defensive tone of the Statement and the confession that this deployment is outside harmony guidelines is surely an admission that we have an insufficiently large standing Army. The cuts forced through by this Government are now putting enormous strain on our troops and their families.
The Statement follows a week of confused anouncements by the MoD. It is now painfully clear that several of the planning assumptions made in preparing for this deployment have proved to be disastrously mistaken. The military strength and resourcefulness of the Taliban are considerably greater than in the optimistic scenario adopted by Ministers. The Statement points out that the mission deliverance is complex. I hope that our servicemen and women really do understand what they are supposed to be doing there.
There are a number of gaps of detail in the Statement. Will the Chancellor be funding the additional reinforcements? Will troop numbers be increased for the training of the Afghan army? The Afghan national forces, army and police, with which our troops were to co-operate, have proved inadequate and unreliable. What representations have the Government made to their German colleagues responsible for training the Afghan police, to ensure that there is a vetting procedure to prevent Taliban infiltration?
The Minister failed to answer a number of the questions that I asked in response to last week's Statement. I will therefore put them to him again. What discussions are the Government having with the Pakistan authorities about insurgents crossing from the lawless border areas of Pakistan? When do the Government anticipate the reconstruction and opium eradication can start? When will we see NGOs on the ground? Is there sufficient medical support in theatre? We welcome the extra medical support mentioned in the Statement, but is it enough?
We welcome the extra support helicopters. How many will be sent and when? Will the Minister assure me that they will not come from Iraq? The Apache has clearly been successful in Afghanistan. Will more be sent? We welcome the additional company and two platoons of infantry, but does the Minister seriously believe that this is a sufficiently large fighting force? These reserves are coming from Cyprus and form part of the essential reserve force for both Afghanistan and Iraq. From where will they be replaced? We welcome the extra engineers and logistical support to improve the local infrastructure. We have few enough resources to conduct a parallel “hearts and minds” campaign to entice the local population to back us.
The Statement says:
“We always knew that there was a probability of violent resistance”.
But it was only last April that John Reid optimistically remarked that it may not be necessary for British troops to engage the Taliban because their primary role was reconstruction, not counterinsurgency. Our Armed Forces are now having to seek out the Taliban, something that Ministers said was never part of the mission. Do the Government now appreciate what our troops are likely to be taking on?
There really must be a full debate in this House on the strategic context of the deployment of our Armed Forces in Afghanistan. We on these Benches have been asking for that for months, but the request has been rejected by the Government. Ministers have a duty, not only to Parliament, but to our Armed Forces, to bring these issues to both Houses to enable full debate on the purposes and progress of this mission. I cannot understand how the Minister responsible for defence issues in this House cannot support a debate.
This mission to Afghanistan must succeed. We will all be the losers if we are eventually forced to abandon Afghanistan. We shall have shown that we lack the will and skill to restore a failed state. All NATO members have to recognise how high the stakes are and that NATO's reputation and future is on the line.
Our troops in Afghanistan have our full support. Once again, the Government are relying on their courage to make good the shortcomings, in preparation and in judgment, of those who have sent them into action.
My Lords, I am grateful to the Minister for relaying the Statement and providing me with an early copy of it. As I have said on previous occasions, from these Benches we support the mission in Afghanistan while regretting that the hapless adventure in 2003 into Iraq has meant that we have failed to give Afghanistan the priority that it was both promised and deserved, as the Statement tells us. While Iraq was not then a threat to the UK, even if it has now become one, Afghanistan was different. It provided a safe haven for al-Qaeda training camps, which produced thousands of terrorist graduates, some of which have already committed mayhem around the world, against British citizens, among others. To those problems, we must now add the flourishing narco-economy, which supplies the majority of heroin on our streets. We therefore have a direct and real security interest in the long-term stability of this war-torn land.
I do not join in the criticism on the definition of the mission. Unlike in Iraq, I agree that we have a coherent strategy in Afghanistan, which tries to bring together the political, economic and security dimensions. That is a good start—but making it happen is difficult and, as the Statement says, it is delivery that is complex. We focus very much on British involvement, but we must bear in mind all the time that this is a multinational effort and ensure that all components of that multinational effort keep in step in Afghanistan. It is entirely reasonable for our commanders on the ground to assess the situation, take opportunities, as the Statement tells us they did, to exploit particular openings—in this case to reinforce part of the north of Helmand province—and then to revise the force levels accordingly and change the mix if necessary. I welcome the fact that the Government have responded quickly to the commanders’ needs.
All of us who have followed what has been going on in Afghanistan have come to the same conclusion—that increased mobility for our forces is an important enabler. We have heard from across the Benches in the various debates the importance of transport helicopters. They are in demand for all operations, but are particularly important both in Iraq and Afghanistan. The Statement makes a rather vague reference to what is being provided in terms of extra flying hours and extra airframes. Does the Minister know how many extra helicopters there will be, what sort they are and what percentage of extra hours will be done? Whichever the answer is in terms of hours or airframes, it is not that that is the problem; the problem is providing the air crew to fly the helicopters. In answer to my Written Question on 24 May, the Minister showed just how hard-pressed the Royal Air Force Chinook, Merlin and Puma and the Royal Navy Sea King crews are already. What effect will the new level of activity have on our ability to train more helicopter crews, which we so badly need—if we are sending people forward, they cannot train people back at home; and on the excessive overstretch felt by this particular component, the helicopter air crew?
The phased enhancement of troop numbers is appropriate in reaction to the operational developments described in the Statement. The question there is what consequential effects there will be by having unplanned extra deployments and reinforcements going forward. What will be the effect on the training plans for those forces and on other theatres of operations? Will the Minister assure us that the Ministry of Defence is looking urgently at where it might scale back other commitments that our forces have? We keep on having the promise that things will be done, but could the Minister write to us with a series of things that will be done to reduce the load on our forces when it is possible?
I was astonished to see a month ago that we seem again to be volunteering for the guardroom by offering an enhancement to our NATO response force package for next year. We do not want to go looking for extra tasks at the moment—and when we look at the figures in the Statement, a snapshot of 18 per cent is meaningless. It is a question of what is the sustained effort that we are asking our forces to undertake—and for some specialists it is a continual load that goes on year after year, causing problems with retention, training and experience level.
I especially draw attention to the question of the reservists and the medical side. We have spoken about it before; the Statement says that we shall enhance the medical capabilities out there and we are using reservists for it. At the same time, when we dealt with reservists, the Government announced that we were reducing the number of medical reservists. Does that mean that we are going to reconsider that part of the equation now that we know that we need more?
The question of providing on-call close air support is not addressed in the Statement. The media have focused on Apaches, and there is some mention of them—although the problem with providing extra hours in that case is also a problem of providing extra crews to do it. But the Afghan veterans of the guerrilla war against the Soviet occupation do not fear helicopters as much as they fear ground attack fighters. The F16s and the Harriers can respond more quickly when our troops get into difficulty, and we have to ensure that we have an adequate number on quick reaction for that. If we are not sending more—and the Statement seems to suggest that we are not—what are we doing to generate more from our NATO allies?
That brings me to the effect that our change in the assessment of what forces we need has on our NATO allies. NATO assumes command at the end of this month in the south and some of the allied forces that we have mentioned have yet to deploy. Can the Minister tell us what briefing has been given to the North Atlantic Council to advise it of our changed perception of the requirement, and whether that has had an effect on the planned deployments by our allies? And what about phase four of this operation? We are only in phase three at the moment—the south. As the Statement says, we have done the north and the west and we are now doing the south, but we have yet to go to the east. Is that still on schedule for next year, or do we have a reappraisal of that?
Finally, I note that your Lordships seem to be establishing a routine, in that every Monday we have a Statement on Afghanistan, yet we are only two weeks from the Recess, which means that we shall not have an opportunity again until mid-October to discuss these matters. The Government in my view were very unwise to go back on their undertaking to have a debate in your Lordships' House on the overall policy towards Afghanistan and Iraq—and I am glad to see that the noble Lord, Lord Triesman, is in his place, because he needs to lead in that debate. So how does the Minister see Parliament being kept in the loop through what may be some very difficult challenges in both operational theatres—Iraq and Afghanistan—throughout the summer?
My Lords, I am grateful to the noble Lord, Lord Garden, for the clear and supportive tone that he took in responding to the Statement, which was in stark contrast to that of the noble Lord, Lord Astor of Hever, who used language that really belies the situation in which we find ourselves. To describe the series of announcements that we have been through over the past week as confused is, frankly, unfair. My right honourable friend has kept the Houses of Parliament fully apprised of the situation as it develops, and those who are aware of the way in which troop deployments are reviewed and assessed by the military through the chain of command will know that the process takes time. It is a rapid process, considering the scale of the decisions that have to take place, but it cannot be short-circuited. It has to be done by the military commanders on the ground and should not be party to interference or micromanagement by Westminster.
The process that we have been through has been perfectly clear, in that the military commanders on the ground went through a review process at the point when full deployment took place for the first time, on 1 July. They were asked by my right honourable friend to ensure that when they undertook that review they made absolutely sure that they were truly asking for all that they need. Those requests have then been reviewed very speedily indeed by Ministers, in collaboration and discussion with other government departments, notably the Treasury, and a decision has been made very rapidly. That is why I can come to this House today and update the House on this further deployment. To describe our initial deployment as “disastrous” is totally inaccurate. This is a response to a successful deployment, which has been able to move into the northern part of Helmand province earlier than had been anticipated. That requires a reshaping of the profile of the forces necessary, and that is what we are doing.
I turn to the specific questions I have been asked by the noble Lords opposite. Yes, there have been clear representations to our NATO colleagues about the vetting procedures for Afghan police. Noble Lords will note in the Statement that additional forces are being provided to support the training of the Afghan police and army.
I have been asked when reconstruction will start. We have already seen significant improvement. The reconstruction efforts that have taken place through the cross-government collaboration between DfID and the Foreign Office—as my noble friend from that department who has joined me on the Front Bench will know—are making a real change on the ground in Afghanistan. We have seen the number of functioning health clinics increase by 60 per cent. Over 11 million children have been immunised. Two thousand schools have been rebuilt or rehabilitated. This is not the first time I have given the House these data. Why am I being asked when reconstruction will start?
I have been asked about Pakistan. It has been a close ally since the operations in Afghanistan began. We have worked closely with Pakistan to ensure that our deployment and our efforts to tackle the Taliban are well co-ordinated. However, the key to long-term stability will be closer relations between the Governments of Pakistan and Afghanistan. Although there have been differences of opinion lately, there have been some constructive visits that bode well for the strengthening of ties and co-operation.
Both noble Lords have asked about support helicopters. We have discussed that issue, particularly medium and heavy lift helicopters, a number of times in this House of late. We freely accept that we have a deficiency in the total level of helicopter capability. We in the Ministry of Defence are working hard on this. I am personally responsible for ensuring that all action is taken on support helicopters. As the House will be aware, there have been some announcements recently.
I am not at this stage able to come to the House and give the precise numbers and types of helicopters we will deploy. We discussed whether or not it was appropriate to hold back the Statement until we were in a position to do so. We will know that in the next few days, and we will inform the House at that time. I can confirm to the noble Lord opposite, however, that those helicopters will not be coming from Iraq. As I mentioned when repeating the Statement, we are already increasing the helicopter hours. The noble Lord, Lord Garden, with his great experience in this area, knows the considerable logistical crew training spares effect that such a decision has. It is important for us to ensure that all of this is coherent across our helicopter force, and that we have people focused on the matter right now. We are actively working through the implications for crew training and other factors. I will be happy to write to the noble Lord and give him full details on that once the final decisions have been made about helicopter deployment.
The noble Lord opposite asked me directly whether I believe the force is sufficiently large. Frankly, the most important thing is whether our military commanders believe that, and then it is up to Ministers to make sure they get that force and the resources to support it. I can tell the House that that is the case. My right honourable friend the Secretary of State has spoken today to the commander of BRITFOR, Brigadier Ed Butler, and made absolutely sure that he is happy that the force he is getting is up to the task. We will continue to do that. The Government are committed to making sure that we win in Afghanistan, and that we are able to support that country in building a stable, democratic country and in turning its back on the Taliban and narcotics.
My Lords, did my noble friend find it as extraordinary as I did to hear the Front Bench spokesman for the Opposition say that possibly our troops do not know what they are doing there? First, that flies in the face of all the statements made by senior officers in public. Secondly, it suggests that the troops of 30 other nations also do not know what they are doing. Thirdly, and perhaps most importantly, our troops are extremely well trained, not least because of their experiences in Northern Ireland, in dealing with intensely complex situations, instead of the old confrontational situations that used to apply in the distant past when people like me were in the Armed Forces. They no longer apply. It certainly does not help our troops to hear it being suggested, in this House or anywhere else, that they do not know what they are doing there.
Absolutely, my Lords. I am grateful to my noble friend, who makes the point excellently. Our troops know exactly why they are in Afghanistan. The chain of command ensures that that is clear. We have every confidence that with that clarity they will succeed in their goal.
My Lords, the Minister will recognise that having got ourselves involved in Afghanistan, for reasons I think the great majority of people appreciate and understand, it is vital that we do not fail. That is important for the reputation and safety of our own country, and for the reputation and safety of NATO.
It was stated by the chairman of the Defence Committee in another place, who has just been in Afghanistan, that there is a story that the continuing activity of the Harriers—which the noble Lord, Lord Garden, has indicated are playing a hugely important role—is sanctioned by the Treasury on the condition that it is at no extra cost. I did not quite understand the Secretary of State’s reply to that question. Can the Minister categorically state that it is not true? It would be extremely serious if it were.
I think this is the first time the Government have recognised in a public Statement how very stretched the Armed Forces are. We are at a very challenging time, and the Armed Forces are heavily committed. That affects both our regular forces and our reservists. In that connection, the Minister has said that the Chiefs of Staff have been going back to the operational commanders to ensure they get what they want. That is a NATO undertaking. General Richards, to whom he referred, is a NATO commander. Will the Minister give an assurance that any requests that have been made to NATO allies have been met? What is the likelihood that we will have significant reinforcement in our own rather stretched situation?
My Lords, I am happy to provide the House with the clear confirmation that there is no Treasury cap on spending for the Harrier force or any other aspect. The Treasury has provided the funds—from the reserves, I stress, not from the defence budget—for this operation. The additional funds that have become necessary because of the re-profiling and the new forces we describe in the Statement today have been agreed by the Treasury.
The noble Lord has raised the issue of air support. It is important for us to stress that the provision of close air support, as also highlighted by the noble Lord opposite, is the responsibility of NATO overall. Part of our role is to make sure that we are making full representations to our NATO partners in the provision of resources. Close air support in the future will be one of those matters.
As has been stated a number of times recently, it is important to recognise what an important test Afghanistan is for NATO in the 21st century. There is a clear mandate from the United Nations and total international support for the mission. It is a chance for NATO to show its effectiveness. Recent progress, highlighted by the commander, General Richards, shows that we are seeing a stepping up from coalition partners to provide forces alongside our own.
My Lords, the noble Lord referred rightly to the reconstruction efforts. I believe he said that 2,000 schools had been refurbished and reopened. He may have to reply to my next point by letter, but how many of those 2,000 schools are in full and regular use? In the Statement, the Minister referred to a C130 Hercules aircraft, but it is not mentioned in my printed version, which suggests that it came rather late to his brief. Is there an explanation for that? We are all concerned about Pakistan, not merely about the sealing of the border, so far as is possible, but with the generation of support for the Taliban in many rural madrassas in the north-west and north-east provinces. I hope that the Minister will obtain from his noble friend Lord Triesman some indication of the support that is being given to the president of that country in his efforts to get those rural madrassas included in the national curriculum and thus divert them from indoctrinating young people in jihad.
My Lords, the 2,000 schools which I mentioned are operating. Part of what we are doing comprises helping to create a secure environment whereby children can go to those schools. The number of schools that are operating fluctuates day by day. There are now 6 million children in school in Afghanistan and, importantly, more than a third are girls. If I can provide further information on the number of schools operating, I shall write to the noble Lord.
The noble Lord asked about the C130. The Statement referred to the C130 and there is no reason why that should not be included in the noble Lord’s copy. I am happy to confirm that the C130 is part of the force package that we shall deploy.
The noble Lord asked about the curriculum. He made a good point about indoctrination, which has taken place. We need to focus priorities. The number one priority is to address the real deficiencies in the country’s water, electricity, roads and basic education infrastructure. We also need to push back the indoctrination to which people have been subjected.
My Lords, I am delighted to hear my noble friend’s vigorous assertion that Her Majesty’s forces will in no way be involved in operations against the narcotics industry in Afghanistan. I can imagine nothing that would make their task more difficult, were they to become embroiled in any such activities. Will my noble friend assure us that no other elements of the NATO forces there are under domestic pressure to engage themselves in the affairs of the narcotics industry in Afghanistan?
My Lords, as the lead nation, we have responsibility for counter narcotics. I am happy to give the assurance that we are clear about the importance of separating the security role from eradication efforts. Eradication is the responsibility of Afghanistan. It is our responsibility to provide the governance and security environment whereby the rule of law can flourish such that that industry can be addressed, and thus help the important efforts to provide alternative livelihoods.
My Lords, given the level of commitment which the Government are showing in Afghanistan, is the Minister happy about the general recruitment that is taking place and the training that has to follow because this constitutes an increase in the Ministry of Defence’s requirements?
My Lords, I am not satisfied that more could not be done to improve recruitment. That is an area in which we are very active. The noble Lord may be aware of the recent one-army advertising campaign, which has been very effective. The Army, as part of the Armed Forces, is seeing an improvement in recruitment in response to campaigns, which in turn are a response to the challenges that we face. However, despite the challenges which I have set out, we can cope with the situation. While recognising the very real efforts that need to be made to ensure that we meet our commitments and those challenges, it is important that we do not conflate those with our operational tasks. I am concerned that the media are doing that. We need to separate the two. We need to ensure that we modernise and reform our Armed Forces to meet the challenges that they face in the 21st century while being absolutely clear that in both Iraq and Afghanistan we will provide our forces with what they need to win.
My Lords, some years ago when people on both sides of the Atlantic celebrated the demise of, and victory over, the Taliban, I said in this Chamber that the Taliban would leave Afghanistan when it wished, that it would return when it wished, and that it would probably return stronger, having restructured and reconstituted itself. I feel that at the moment we are seeing a probing attack by a fairly small number of the Taliban and their friends within Afghanistan. As history has shown, traditionally in Afghanistan there is a measure whereby they can concentrate very large forces when they want from the safety of a position over a border or from somewhere snug in the hills, which are unapproachable.
I have nothing against what has been said from the Government Benches, but my worry in all this is that we are in a very weak position when it comes to a quick reaction force or reserves. I see very little chance of getting reserves there in time. Saying that there is another company and two platoons of infantry does not really constitute the theory of having an immediate force to go to the help of someone in trouble.
We talk about what is in Cyprus and in the UK and about what our NATO allies nearby, and particularly our American friends, can do to help us. However, I see the weakness in all this—that the UK contingent, the UK military, has no reserves. That includes fighting, heavy lift, logistic helicopters, the capability to operate at night and the capability of quickly finding a reserve when in crisis. For me, that is the weakness of the United Kingdom at present.
My Lords, I am grateful to the noble Viscount, who has considerable experience of these matters. Therefore, I listened very carefully to his concern about reserve forces. I and my ministerial colleagues quiz force commanders very closely on these matters. We ask them whether they are satisfied that they have what they need to do the job. They have said yes. However, we need to monitor the situation as it develops. We need to keep on asking that question to ensure that our forces are provided with what they need to do the job.
My Lords, following on from my noble friend’s question, which I do not think the noble Lord addressed, how is Parliament to be informed about Afghanistan and Iraq during the long Summer Recess? I believe that there was to be a debate on Iraq and Afghanistan on 4 July, but it was postponed. What are the Minister and his colleagues doing to ensure that we have a debate on those countries as soon as is possible?
My Lords, as the noble Baroness will be aware, debates in this House are a matter for the usual channels. I am very happy to provide support to noble Lords in the form of briefing and information on any matters, including Afghanistan. It is for the usual channels to decide how we debate these issues and Parliament will be kept informed about them during the Recess in the usual way.
My Lords, I am grateful to my noble friend because I am able to inform the House that today my right honourable friend the Secretary of State had discussions with his opposite numbers in both Canada and the United States, for example, and had a positive and robust response in terms of their commitment and support to this mission.
My Lords, I thank the Minister for his Statement and absolutely agree with him that our soldiers and servicemen out there know what they are about. However, I also agree with what the noble Viscount, Lord Slim, said about reserves; I have written to the Minister about this. I still look at what General Richards, has and he has no theatre reserve. In our discussions with NATO, I hope we are talking to it about providing a proper theatre reserve for the theatre commander.
Secondly, the Minister has outlined what I think is a hugely ambitious strategy in a country that has never been governed properly. That strategy will demand considerable forces on the ground. Can he reassure me that we have done some worst-case planning and that we know that we can reinforce at very short notice the British contingent in Helmand province?
My Lords, I am grateful to the noble and gallant Lord who really knows what he is talking about when he asks these questions. As he says, he has written to me and discussed with me his concern regarding the theatre reserve and the NATO response to it. This is an area which Ministers have quizzed commanders on to ensure that they are satisfied. I believe it is a matter which we need to continue to press and we recognise that.
It is important for us to recognise the way in which NATO is developing. It has been said that people had concerns in our initial deployments in the north and the west and about Kabul being an ungoverned area. We have seen the success of the deployment as it has moved through the country. We are now in the very challenging area in the southern province of Helmand and it is an ambitious strategy to support this country in its journey back to a stable state. However, there is no alternative for us in doing this. There is no option whereby we walk away from Afghanistan. That would be absolutely against the interests and security of the people in this country as well as being the wrong thing to do in support of Afghanistan, which, as I described earlier, has developed remarkably over the recent past. We recognise that it is going to take time to be able to help rebuild that country. It is a difficult process, and we are realistic in doing so. We will provide the resources to our forces, alongside their partners in DfID and the Foreign Office to make this support a success.
My Lords, I wonder if the noble Lord could say a little more about reservist deployment. I declare an interest as Chairman of the National Employer Advisory Board for the Reserves. It looks as though, as in Iraq, 10 per cent or so of the deployed forces in Afghanistan will be reservists. Of those 400 or so who are to be mobilised, will they be regular reserves or from the volunteer reserves? What are their roles likely to be in addition to those who are going to be deployed with the field hospital? Can he also be certain that the full 28 days’ warning time can be given to those individuals so that their employers, and hence their businesses, can prepare accordingly?
My Lords, the noble Lord, with his experience, is aware of the importance of making sure that we do everything to ensure that the employers and the reservists themselves are given every notice. I will write to him and give him details on this. I do not have the full information with me today.
Legislative and Regulatory Reform Bill
House again in Committee.
Before we get to AmendmentNo. 31, I would like to make a brief correction to a statement made by the noble Lord, Lord Waddington, in the debate on Amendment No. 30 when he suggested that I was taking a different line from that taken by my honourable friends in the House of Commons. I have since then checked on the debates and votes on Report in the House of Commons and I refer the noble Lord, Lord Waddington, to the House of Commons Hansard reports for 15 and 16 May. On 15 May, at col. 737, my honourable friend David Heath made what could be regarded as an ambiguous statement indicating possible support. However, I would refer the noble Lord to the speeches of Mr David Howarth at col. 751 andMr Heath again at col. 755, which confirm our opposition to an identical amendment. When we voted on it the following day, as is shown in cols. 945-48, we voted with the Government against the amendment in exactly the same way as we have done in your Lordships’ House today.
I wonder whether it would be helpful if we had a Motion before the Committee before any further debate takes place. It is clearly a matter for the Committee and not for me, but this exchange could continue in the course of a later amendment when we have a Motion being debated before the Committee. Therefore I would like to call the noble Baroness, Lady Wilcox, to move Amendment No. 31.
I thought it would be convenient to dispose of this matter now. It may present slight technical difficulties. I am not for a moment suggesting that the noble Lord has done anything to his discredit at all, but it seems it would be helpful to get this out of the way, particularly as there are no other amendments which are at all similar to Amendment No. 30.
I wonder if I can take it that the noble Lord is speaking to this amendment. I am most grateful to him for having made his statement. The last thing that I would wish is to mislead the Committee in any way. Of course I accept that the line he has taken today corresponds with the line taken by his colleagues in the other place. I want to make it absolutely plain that I accept entirely what he has said. I would add only that I am most grateful for the support of two Liberal Democrat Peers in the Division Lobby a short time ago.
After Clause 1, insert the following new clause-
“DUTY TO REDUCE REGULATION
(1) A Secretary of State must publish annually a list of all regulations for which his department is responsible which lay a burden on any activity, service, body, voluntary group or business, and at the same time publish an estimate of the total compliance cost of each such regulation and of the average time taken by each person affected by the burden to comply with each regulation.
(2) The Secretary of State shall have a duty to reduce by10 per cent the number of regulations established under legislation for which his department is responsible within two years of the coming into force of this Act.
(3) At the end of the period of two years after the coming into force of this Act, the Secretary of State shall lay a report before each House of Parliament detailing his proposals to reduce by a further 10 per cent the number of regulations established under legislation for which his department is responsible and the timetable by which he expects to achieve that target.”
The noble Lord said: I hope that your Lordships will forgive me if, by way of preface to this amendment, I refer to the remarks made by the Minister when this Bill was discussed in Committee a week ago. I return to this matter only as it is of such fundamental importance and because it bears on this amendment.
The Minister said:
“The power to amend or revoke secondary legislation is less important, as departments will always have a power to do this in any event”.—[Official Report, 3/7/06; col. 119.]
That has made me think, as it has the noble Earl, Lord Onslow. Unfortunately, hard as I ponder, I am now even less able to understand this Bill. As departments already have the power to amend or revoke secondary legislation, why, if the Government are so keen on deregulation, are Ministers not falling over themselves to revoke great swathes of expensive and useless legislation?
The main argument against the Bill is the reluctance to give Ministers the power to bypass Parliament. But, how much deregulation is dependent on amending or repealing primary legislation? I should be grateful if the Minister could give some examples of the primary legislation that would be removed under these powers. There must surely be a long list of Acts or the Government would not have given so much time to this Bill. Can the Minister say what proportion of envisaged deregulation will be achieved through the repeal of primary legislation and what proportion of deregulation will be achieved through the repeal of secondary legislation, for which, as the Minister has told us, the Government already have powers?
If one of the purposes of the Bill is to enable primary legislation to be amended or removed without going through the normal legislative process, then, clearly, there must be adequate protections to avoid the abuse of power. I am still unable to see how adequate safeguards can be introduced without losing that flexibility to repeal and amend legislation, which this Bill seeks to provide. I apologise to your Lordships for returning to that point, but it bears repetition.
The Minister has confirmed that power already exists to deregulate secondary legislation. Since that power is not being used, it is important that pressure is applied to Ministers to make effective use of both existing powers and the powers to deregulate that the Bill proposes to give them. There will always be other projects and initiatives that will be more attractive than the tedious job of getting rid of regulations. I refer your Lordships to the comment in the 20th report of the Delegated Powers and Regulatory Reform Committee, which stated that,
“it is our opinion that the block to regulatory reform is departmental priorities rather than the “burden” test in the 2001 Act”.
Given the record of Ministers on deregulation, the Bill will be pointless if there is not a statutory duty on the Minister to deregulate. Although it is not included in the amendment, it is important for there to be a time limit within which action must be taken. We can return to that when the Minister’s reaction to the amendment is known.
The idea of creating a target for deregulation was strongly endorsed by the Better Regulation Task Force, which stated that target setting was,
“a robust method for the government to improve its control over the flow of new regulation and a driver to reduce the burdens imposed by the stock of existing regulation”.
My view is that the amendment’s suggestion of a reduction of 10 per cent over two years is an extremely modest ambition, and if the Minister were to say that such a reduction was inadequate, I would accept that as a valid criticism. I wished to suggest a minimum target that was easily obtainable.
I refer again to the Better Regulation Task Force. It recommended the Dutch model of deregulation, which involved introducing a target for reducing administrative costs. The Netherlands chose a target of 25 per cent over four years, with some limited flexibility across different government targets. If the Dutch approach were used, as well as the benefit of increasing productivity and growth of business and a mechanism for increasing the efficiency of government, the task force estimated that an investment of £35 million would potentially increase gross domestic product by £16 billion. The report recommended that the Government set a target by May 2006 for reducing the administrative burden. The Government’s response was that targets would be set by the time of the Pre-Budget Report 2006. Can the Minister confirm that such targets will be forthcoming and that progress on the implementation of the recommendation is on course?
I understand that the Government accepted in full all the recommendations of the Less is More report so I am sure that the Minister will welcome the amendment. I beg to move.
I was somewhat confused when I read the amendment. Having heard the noble Lord move it, I am a great deal more confused. The amendment states:
“A Secretary of State must publish annually a list of all regulations”
that lay burdens on businesses and people. That is to be inserted after Clause 1, which does not refer to regulations but to burdens imposed by all legislation. Does the noble Lord intend to restrict his amendment to burdens that happen to be imposed by secondary legislation, or is he using the word “regulations” in a more general sense in relation to burdens imposed by any legislation? If he is using it in the second sense, the task that he seeks to impose on the Secretary of State in subsection (1) of the amendment is absolutely enormous, because Clause 1 refers to burdens imposed by any legislation.
During last week’s debates, which, unfortunately, I could not attend, the Minister very much limited that to burdens imposed by regulators and so on. But that is not what the clause states and that is why it is so dangerous. A burden imposed by any legislation could be a burden imposed, for example, by a landlord and tenant Act which states that a landlord or tenant must repair this, that or the other, or by the Sale of Goods Act, which states that the seller must be responsible for the quality of the goods. Such burdens can be altered under Clause 1(2). You could make a regulation under Clause 1 that stated that, henceforward, landlords need not do any repairs and tenants must do them all; or that, henceforward, vendors need take no responsibility for goods and it would just be bad luck if you buy something that does not work.
Such burdens are imposed by virtually all legislation; so, if the Secretary of State were annually to have to publish a list of all the burdens imposed on individuals by any legislation in the country, he would merely be made to recite the entire statute book. On the other hand, if the noble Lord does mean regulations in the normal sense, I do not see why he is concerned only with burdens imposed by statutory instruments and the like, and not by burdens imposed by primary legislation. Some of those may need to be reduced, while some certainly do not need to be reduced at all. If the noble Lord is really including in the totality of the 10 per cent that is to be reduced all the obligations imposed on individuals under, say, landlord and tenant, sale of goods, employer, and safety at work legislation, trying to cut the statute book by 10 per cent every two years seems a somewhat ambitious target, even for those who are keenest on deregulation.
The quality and value of the speech that we have just heard makes me regret that the noble Viscount was not here on the first day of Committee. I suppose that the amendment is meant to be taken seriously but it is rather frivolous in its consequences. I suppose that it could be a probing amendment but I am not sure what it is probing. I do not think that having in a Bill a target of a 10 per cent reduction in the number of regulations established under legislation and so on is what Hampton or the Better Regulation Task Force, or whatever it is now called, had in mind at all. As the noble Viscount indicated, the duty would have astonishing consequences in a short period of time if a department had to comply with subsection (2).
As for publishing a list of all regulations, the noble Viscount has already pointed out the ambiguity surrounding those regulations. Is the amendment referring to legislation in general, as is dealt with in Clause 1, including subordinate legislation? As for “burdens”, almost every conceivable piece of legislation can be described as a burden.
To be serious for a moment, surely we must accept that, whatever its faults, the Bill is concerned with continuing what was begun in 1994 when Her Majesty's Opposition were in government to reduce the burden of regulation on business and so on. One wants the Bill to be more effective than the previous one, from which arose a considerable spate of deregulatory orders, in order to reduce the burden that I have just described. Asking departments to publish lists of regulations seems to me to serve no useful purpose, and it is rather surprising that Her Majesty's Opposition should think that this is an amendment of value.
I, too, am puzzled and confused, as the noble Lord, Lord Desai, was the other day. I was very interested in the contribution of the noble Viscount, Lord Bledisloe. I think that the confusion arises from the Government because, on the one hand, they say that they want to pursue better regulation. At one time that might have been “deregulation”, but that is a dangerous description and so they have shifted towards “better regulation”. On the other hand, they say that they have not been able to do that with the 2001 Act and nor could other governments do it with the 1994 Act. Then the Government say that they have opened a portal. We have heard about that several times. I think that it is run by the Better Regulation Executive, although I am not sure. It has made 330 proposals for deregulation, simplification, amendment and removal. These have included administrative recommendations as well as recommendations which I believe will almost exclusively concern secondary and not primary legislation.
This is where the confusion comes in. We find ourselves talking as though it will be impossible to follow the Government's programme if either the 2001 Act is not amended or this Bill is not enacted. I sincerely believe, and I am sure the Minister will put me right if I am wrong, that it will be possible to put in place by existing legislation a large percentage of any deregulatory, simplification or amendment programme—the departmental plans to which the noble Lord referred. The 1994 and 2001 Acts did not do much to achieve a reduction in the regulatory burden and nor will this Bill.
It is probably a pity that we have chosen the word “burden” because, as has been pointed out, a burden works both ways. To give one example, there used to be a simplified employer’s deduction card and a year-end return, which involved putting in one form. You now have to submit three forms, which contain a great deal of information, including whether your employee worked for a foreign company for 30 days in the year. That is completely irrelevant to complying with the Revenue’s intentions. There are many other examples which come from administration and secondary legislation. Unless and until the Minister can clarify how much primary legislation the Government need to amend to achieve the deregulatory regime to which he referred and how much they can achieve with existing legislation, the confusion will remain.
I am drawn very much to the analysis to which the amendment has been subjected by my noble friend Lord Borrie and the noble Viscount, Lord Bledisloe. Of the three parts of the amendment, subsection (1) gives me most concern. We have been discussing burdens and the quantity of regulation that can impact on a business, a voluntary organisation and the public or private sectors and so on. When I read this part of the amendment, my heart sank because I had thought that noble Lords opposite were beginning to get to grips with what the Government are trying to achieve. Subsection (1) asks us to consider producing a list of all regulations—I am not sure whether it is secondary or primary legislation or both, or whether it is all legislation in the past or all future legislation—and,
“at the same time publish an estimate of the total compliance cost of each such regulation and of the average time taken by each person affected by the burden”,
to fill in forms, prepare and publish prescribed codes or policies or otherwise to comply with each regulation. That is a massive undertaking. What sort of bureaucracy would a Government need to deploy to fulfil the requirements of the amendment? I cannot begin to quantify it and I doubt whether the noble Lord, Lord Howard of Rising, can begin to do so either.
Is that the sort of thing that we want to ask of civil servants who are tasked with the business of improving the quality of regulation—or deregulating, depending on which term you prefer? I say not. I cannot see the value in that exercise. I cannot see what it would do to hone and perfect the improvement of regulation or to reduce the burden of regulation within our legislative and statutory framework. I cannot see it working.
The noble Lord, Lord Howard of Rising, then goes on in the amendment to talk about target setting and about having robust methodology. We argue that we already have in place a robust examination of regulations. That is why we have a regulatory impact assessment and why departments are asked annually to go through their stock of regulations. I do not think that we need the prescriptive and bureaucratic approach which the noble Lord, Lord Howard, wishes on us in order to achieve that objective.
Regulations exist for good reason. They ensure that we protect citizens and provide a sensible framework within which our businesses, public services and voluntary organisations can operate. We want our public servants to use their finite resource to root out the unnecessary bureaucracy and to deal with it rather than investing more of their time in producing lists and writing more reports for Parliament, whether on an annual or a biennial basis, whichever approach is adopted.
I understand that the Opposition might have thought that this amendment would achieve an improvement to regulation, but I cannot see how they can demonstrate that it will. We are the first Government in the UK to face up to the challenge of identifying and measuring costs on business, charities and voluntary organisations. Each year, as I think I have said before, departments will publish detailed information on the administrative costs of complying with government regulation and their analysis and plans for reducing both those costs and other regulatory burdens. The Government will put in place a stretching but, I think I can argue in the end, an achievable target for reducing each department’s administrative costs over time.
At present, departments are reviewing their regulations and preparing simplification plans, taking into account suggestions for change that have been made by those who have made representations to us from the business, voluntary and charity sectors. Those plans will be published annually because they focus on burdens that are experienced and real to organisations rather than burdens that are imagined as the fruit of the whole stock of legislation and governance. These measures will include a commitment to reduce regulatory burdens on business and the voluntary sector as well as the public sector. The plans will be published at about the same time as the Pre-Budget Report. Departments are also obliged to report on their better regulation work as part of their annual reports. I made that point during an earlier debate.
We do not need prescriptive and inflexible targets on the statute book for a reduction in bureaucracy. Progress to date and our commitment to this agenda should be visible to all. For example, Her Majesty’s Revenue and Customs is already undertaking a measurement exercise. It has already announced a commitment to reduce by at least 10 per cent the administrative burden on business of dealing with HMRC forms and returns, over a five-year period. It also aims to reduce the administrative cost on business of dealing with audits and inspections by10 per cent over three years and by at least 15 per cent over five years.
This amendment is not necessary; it is over-prescriptive; we are already on the right track; we are already working in the direction of reducing the burdens about which the noble Lord, Lord Howard of Rising, is concerned. It would provide us with a straitjacket from which we could not escape and which would, as far as I can make out, provide us with a work stream that could last more than several lifetimes.
The noble Lord, Lord Howard of Rising, asked: what proportion of deregulatory work needed amendment to primary legislation? I should respond to that, although it is an almost impossible question to answer. We intend to try to use all the tools we can to deregulate; that is what this legislation is about. We can also use guidance. We may want to use primary legislation for different measures; and we may want to use the secondary legislation for different measures, including orders under the Bill. The Bill enables us to have a more streamlined procedure, a more exact procedure and one that does not become too bogged down in the process, but which gets to the heart of what is required to take action that is effective against things that perhaps have been on the statute book for some time, that are no longer necessary, and that are imposing burdens on business and other organisations. That practical, hard-nosed way of dealing with things is what we require. This legislation will enable us better to perfect that.
The noble Lord, Lord Howard of Rising, will not have heard a direct answer to his question because I do not think there is one. However, we are attempting to achieve, and we are beginning to achieve, a practical and hard-nosed approach to tackling real problems with regulatory burdens that exist for people out there in the real world, rather than theoretical burdens that the noble Lord seems to think can be solved by a massive expansion in bureaucracy and a rather heavy-handed approach to quantification.
The same as in Clause 2. The point is that Ministers already have very substantial power, as the Minister pointed out, to reduce the regulatory burden and they are simply not using it. To try to get them to use that power they must have some form of compulsion. If they do not have it, they will not use it. It is very simple and I cannot believe that the Minister cannot understand that and, ultimately, agree with me. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
After Clause 1, insert the following new clause-
“REMOVAL OF REGULATIONS WITHOUT FULL COMPLIANCE ASSESSMENT
If a Minister of the Crown is unable to estimate the average burden in time or cost imposed on persons or businesses affected by a regulation he has introduced, he shall make an order to remove or reduce that regulation.”
The noble Lord said: This amendment looks at the process of assessing the impact of regulations. The regulatory impact assessments that accompany pieces of legislation laid before either House are a useful tool for forecasting where the costs and impacts of policy changes will fall in future. I see from the Cabinet Office website that as at June 2005, there was 100 per cent compliance by government departments with the regulatory impact assessment process. That is fine, as far as it goes. A form of measuring device has been created but that on its own serves no purpose. It is all very well measuring the quantity of a liquid, but the problem is that too often the Government do not check whether the liquid is good whisky or bad poison.
The effects of regulation are what matter. Using the device to measure subsequent performance against the original intention will show whether the legislation is having the intended effect. The purpose of the amendment is to put a duty on Ministers to examine the impact of regulations after their introduction. If the assessment is unable to estimate the effect of the regulation, clearly there is no point in the regulation and it has to be removed automatically.
I understand that since 2003, the National Audit Office has carried out independent evaluations of regulatory impact assessments. On page 32 of its last report, the Evaluation of Regulatory Impact Assessment Compendium Report 2004-05, it stated that nine out of 10 regulatory impact assessments in its sample,
“discussed monitoring and evaluation but these discussions were very brief and vague”.
It went on to state that,
“complex monitoring procedures were sometimes in place but these were not reflected in the regulatory impact assessments”.
Will the Minister say whether the National Audit Office’s recommendation that regulatory impact assessments should describe the monitoring process in more detail is being complied with? It is pointless to create regulations and not to examine properly whether they are achieving what was intended. I beg to move.
We understand the thrust of where the noble Lord is coming from with this amendment. I hope, as my first task in this Bill, I can persuade him that his approach is flawed and that what is already in process effectively meets what he seeks to achieve.
The noble Lord is effectively saying that regulations which the Government are unable to measure in terms of time and cost should either be removed or reduced. That position seems to have no regard to possible evidence of the benefits of introducing the regulation. If we accepted that, the noble Lord could find that important protections for consumers and other groups could be removed. That is why the Government require regulatory impact assessment for new regulations, including consideration of non-regulatory options. All regulatory proposals must be accompanied by a regulatory impact assessment, and major proposals are scrutinised and require approval by the Panel for Regulatory Accountability. The purpose of RIAs and PRA scrutiny is to ensure that the costs and consequences of regulatory proposals are reasonable and proportionate to the benefits. Exemptions for any group or sector, including small businesses, are considered on a case-by-case basis, with Ministers making their decision transparent through the RIA/PRA process.
One of the key principles of better regulation is light-touch implementation of policy proposals. The amendment runs counter to that principle, adding an unnecessary and bureaucratic step to the policy-making process. RIAs already consider the impact of any regulation on small and medium-sized enterprises and are subject to scrutiny by officials within the Better Regulation Executive. The BRE is currently developing proposals to improve the effectiveness of RIAs. The aims will be both to improve the clarity with which costs and benefits are presented and to streamline the RIA requirements, making them easier to use throughout the policy development and implementation cycle—the point that the noble Lord was particularly pressing. The BRE intends to consult on its proposals shortly.
On the cost of business, charities and voluntary organisation complying with existing regulations, no UK Government have understood what the estimates of the administrative costs are until now, as my noble friend has just outlined. As part of one of the most ambitious regulatory reform agendas in the world, the Government have faced up to the challenge of identifying and measuring the total administrative costs placed on businesses, charities and voluntary organisations by existing government regulation.
Noble Lords have just heard that each department will publish detailed information later this year on both the administrative costs of complying with government regulation, and their plans for reducing these costs and other regulatory burdens. The Government will set stretching but achievable targets for reducing each department’s administrative costs over time. To put such an amendment in the Bill would be too prescriptive, giving no regard to important protection the regulation may exist to provide. It would not take account of what the Government are already delivering on measurement of administrative costs on the regulated, an approach wholeheartedly supported by the business community:
“We are encouraged that the effort to plan and then implement reductions in administrative burdens is already underway, through a nationwide survey to establish how much time and money businesses must expend to demonstrate compliance, and to identify which regulations impose the greatest burdens”.
Those are not my words, but those of key representatives of business in a letter to the Government earlier this year.
While it seems a sensible amendment on a prima facie basis, it would cause uncertainty within the regulatory environment. This Government have for the first time completed an exercise to identify and measure the administrative costs of government regulations on business, charities and voluntary organisations. We will set meaningful targets for reducing those costs, and recognise that everything on the statute book, whether originating from this or other administrative legislative output, has been measured in terms of time and cost. Each government department has identified its existing stock of regulations through the administrative burdens reductions exercise, evidence that will indicate where the costs are, so that they can then take action to reduce them.
In summary, I welcome the noble Lord’s intent with this amendment, but do not agree that it is an effective way of achieving the right outcome. I invite him to withdraw it.
The Minister has given a long and interesting reply. My noble friend was asking a simple question: will the Government look at individual regulations to see whether they have worked? In other words, he is asking for post-legislative scrutiny. If it has not worked, my noble friend suggests that that regulation is no good and should be withdrawn. It is a fairly simple question. The amendment may be the wrong way to ask it—I see that—but do the Government mean to look at regulations, see whether they have operated as they expected and report on them?
To start with, I do not think that is what the amendment asks. I understand the thrust of what was asked when the amendment was moved. The approach being taken is a continual review of regulation. When a regulation has been introduced with an impact assessment, part of the ongoing departmental process will be to keep burdens, costs and regulation under review.
After Clause 1, insert the following new clause-
“DUTY TO EXEMPT SMALL BUSINESSES FROM REGULATION
(1) Where an order made under section 1 has as its purpose the reduction (as opposed to the removal) of any burden, or overall burdens, the Minister of the Crown must consider whether a total exemption for small businesses from a such burden or burdens is appropriate.
(2) If the Minister does not consider such exemption appropriate, he must submit a report to Parliament at the same time as the draft order is laid before Parliament explaining the reasons why he has come to this conclusion.
(3) For the purpose of this section “small businesses” refers to businesses that fall within the criteria of a small group as set out in section 249(3) of the Companies Act 1985 (c. 6) (qualification of group as small or medium-sized).”
The noble Baroness said: Small businesses are vital to the UK economy. There are about 3.8 million in the UK, of which 1.6 million are sole traders. They account for 99 per cent of UK firms, generate more than half the total UK turnover and employ 56 per cent of the private sector workforce. Regulations can have a disproportionately large impact on small businesses because they usually do not employ a regulatory specialist and the costs of, for example, employment regulation are absorbed across fewer employees.
The National Audit Office report goes on to say that,
“Departments must therefore pay particular attention to the potential impact of their proposed regulations on small businesses”.
The amendment seeks to put this recommendation in statutory form. When using this order-making power to reduce burdens, a Minister should always consider the appropriateness of whether a small firm exemption should apply. In this way, the order-making power, if used to reduce regulations, would serve as a trigger to initiate a small firm exemption. If the Minister chooses not to take advantage of the opportunity to exempt small firms, then he must account to Parliament with his reasons for not doing so.
As far as I am aware, when preparing its regulatory impact assessments, current practice is for the relevant department to consult the small business section of the DTI, to get its agreement on its impact assessment on small businesses. The National Audit Office report of March 2005, on page 21, said that, in four cases out of eight in the sample, the small business section had not been given enough time to produce a considered response. Can the Minister confirm whether this unsatisfactory state of affairs has been rectified?
The report went on to cite an example of where small businesses have not been properly considered. The Department of Health seemed to have been a major offender:
“The SBS told us that the Department of Health did not enter into negotiation and asked the SBS not to provide comments for the RIA for the National Care Standards Commission Fees and Frequencies of Inspection 2003-04”.
It cited the example of the regulations regarding the recovery of NHS treatment costs. The Department of Health identified that one of the effects of this regulation would be an increase in insurance premiums. According to the National Audit Office, the department made no attempt while preparing the RIA to calculate the increase in premium for an average small business or to assess whether it will be disproportionately affected.
So, there we have it—clear evidence from an independent source that small businesses can and will get overlooked. We need to take the opportunity that this Bill presents to put something in concrete that will reassure the small business community that they will not get overlooked. I beg to move.
I support my noble friend. Some 28 years ago the noble Lord, Lord Ezra, among others, and I spoke of the problems of small business—they had many. What has changed? Burdens on small businesses have increased substantially since then, especially the paperwork, which, most unfairly, requires hours of work. I hope the Government will ease the many burdens imposed on small businesses by exempting them from many of these proposed regulations.
While the tabling of this new clause indicates that the Opposition are as eager as we are to help small businesses, the amendment is not required and therefore the Government cannot support it.
One of the main policy objectives at the heart of this Bill is that orders made under the power in Clause 1 will help to reduce regulatory burdens, including burdens on small businesses. The proposed new clause is therefore unnecessary. All regulatory proposals must be accompanied by a RIA, and major proposals are scrutinised and require approval by the Panel for Regulatory Accountability (PRA).
The purpose of RIAs and PRA scrutiny is to ensure that the costs and consequences of regulatory proposals are reasonable and proportionate to the benefits. Exemptions for any group or sector are considered on a case-by-case basis, with Ministers making transparent their decision through the RIA/PRA process, as we have just discussed.
One of the key principles of better regulation is light-touch implementation of policy proposals. This amendment runs counter to that principle, as did the previous one. RIAs already consider the impact of any regulation on small and medium enterprises and are subject to scrutiny by officials within the Better Regulation Executive. The chair of the Small Business Council, Julie Kenny, is invited to attend meetings of the PRA. That seeks to ensure that small businesses have a voice on the committee and that the regulatory proposals scrutinised take full account of the impact on small businesses.
The Government are already reducing regulatory burdens on small businesses. For example, we are exempting nearly 900,000 companies from audit requirements on their accounts as a result of raising the annual turnover threshold from £1 million to£5.6 million, saving companies at least £94 million a year. We have introduced regulation updates: a one-page “see at a glance” look at new regulations which enable an SME to decide whether a new regulation will affect it, without having to wade through a lengthy document, saving time and money. We have introduced a 12-week minimum implementation period for new regulation, giving implementation guidelines to SMEs, to enable them to prepare for new regulation at least three months before it is due to come into effect.
The DTI simplification plan alone identifies how it will reduce the burdens on businesses by more than £1 billion over the lifetime of its five-year programme.
The Company Law Reform Bill, the heart of which is deregulation, will deliver savings to businesses of some £250 million a year. That includes an estimated annual saving of £100 million for small businesses.
The requirement in the Bill for consultation on any proposed order will also allow those affected by any proposals to have an opportunity to put their case to the Government. The Government will take these views into account before a draft order and explanatory document are laid before Parliament. The explanatory document must give details of the consultation, representations received and any changes made as a result of those representations. Those representations from small and medium enterprises, as with other representations, will of course be reflected in this explanatory document. There is a clear overlap between what this amendment would require and what is already required by the Bill in the explanatory document.
This Bill is about reducing and removing unnecessary burdens, not increasing them. The amendment will make the procedure more onerous, diverting valuable resources away from actually delivering the necessary reductions in red tape that businesses, the public and the voluntary sector are crying out for.
Small businesses are the backbone of the UK economy—we share a view on that. There are a record number of small businesses, nearly twice as many as there were a generation ago. This Government champion small businesses. We recognise their huge importance to the UK economy. My statistics state that 58 per cent of the UK’s private sector workforce is made up of small enterprises; and small business, as has been recognised, accounts for over half of the UK’s turnover—some £1,200 billion.
The Bill has widespread support, including from the Federation of Small Businesses and the Small Business Council. It is difficult to see how the proposed new clause would add anything to the mechanisms this Government have already put in place to support small businesses. Small business, as defined, is in danger of putting a straitjacket on the approach which the Government would take on this, because the definition of “small or medium-sized enterprise” may differ according to the requirement of the particular regulation. A Companies Act definition may be appropriate if one is considering exemption from audit or from some other more detailed requirement of financial reporting. It is not necessarily always the key test for other requirements. To put such a straitjacket in the Bill is unhelpful. On the basis of the evidence provided, I therefore urge the noble Baroness opposite to withdraw this amendment.
I have listened to the Minister's reply. I am very pleased that the small business organisations he referred to seem to have confidence in the Government’s approach. I do not have that much confidence. I have run a small business and know how often these things sound wonderful on paper but can take an awful lot of time to do. Anything that goes near a government department always seems to take a lot more time.
I am delighted that the Minister has now joined us and has given the noble Lord, Lord Bassam, a slight breather as he seemed to be batting totally on his own. It is very nice to have him here. He will know that many of the previous amendments centred on the fact that we want provisions in statutory form.
We, like the Government, are very keen that this Bill is an improvement on the 2001 Act. That sounded good, too, in its time, but we are worried that there is not enough force behind it. If the Minister is staying with us, he will see more amendments like this where we are trying to get more robust and tougher legislation to call departments to account and to get them to Parliament—so that it forces their hands.
I will read very carefully the Minister’s response to this amendment. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Education (Northern Ireland) Order 2006
rose to move, That the draft order laid before the House on 12 June be approved.
The noble Lord said: My Lords, the purpose of the draft Education (Northern Ireland) Order 2006 is to improve the education of every child in Northern Ireland by providing the legislative framework for a package of reforms. I have not come to the House tonight to move for the abolition of grammar schools.
This is a very important order for Northern Ireland. It is the culmination of many years of research, consultation and discussion at local level. The changes that it makes are home-grown solutions to Northern Ireland issues, not something being imposed externally. I say many years: it is at least six, possibly eight, the process having started in 1997-98. I was told some months ago that this is all the brainchild of Martin McGuinness; that is simply not true. The decisions that he made when he was Education Minister are irrelevant to the order.
Northern Ireland is often portrayed as having an excellent education system to rival any other. It is true that, at the top end of the achievement scale, more pupils leave school with good GCSEs and A-levels, but the overall performance figures for pupils on average are on a par with or slightly below those for England. Northern Ireland has one of the most unequal education systems in the world. It has the lowest proportion of working adults without a degree and the lowest rates of adult literacy in the United Kingdom. Such a system cannot be regarded in total as excellent.
The reality is that the current education system was designed for a different century and a different world. The reforms in the order retain and build on existing strengths, but introduce changes necessary to ensure that Northern Ireland has an education system fit for the 21st century. We cannot ignore the global economy. The nature of employment in Northern Ireland has changed. Heavy industry and large-scale manufacturing have all but disappeared to be replaced by smaller high-tech enterprises and service industries. There is increasing competition from India and China. The pace of change is accelerating. Northern Ireland must therefore adapt and be more innovative if it is to be able to compete successfully.
Education has a vital role in providing Northern Ireland with a workforce that is well educated and equipped with the knowledge and skills to secure Northern Ireland’s future prosperity. But the draft order does more than that.
Some people claim that the selective education system in Northern Ireland provides a ladder up for many pupils from disadvantaged backgrounds, providing them with opportunities that they would not otherwise get and rewarding merit rather than the ability to pay. The evidence shows that that is a myth. Why else would pupils from disadvantaged backgrounds be so severely unrepresented in grammar schools? It is not because they do not have the ability; it is because of the socially divisive nature of this selective system of education in Northern Ireland. The order will open up opportunities for all pupils. For the individual, it will shape provision in a way that enables all young people to fulfil their potential, rather than create an élite at the expense of the majority. It will be more flexible and innovative, capable of providing a wider range of opportunities to accommodate individual needs and interests. It will ensure that young people learn about the responsibilities as well as the rights of citizenship and the importance of tolerance and mutual understanding.
Broadly speaking, there are three key issues with which I shall deal—the curriculum, the entitlement framework and admissions—and, to a lesser extent, the issue of suspensions and expulsions, which is not central.
We have an academic style of curriculum that is not appropriate for all pupils and is overly prescriptive, leaving little room for teachers to adapt teaching to individual pupils' needs. The order introduces a revised and more flexible curriculum, which is less prescriptive in content, but with a sharper focus on the educational fundamentals, such as literacy and numeracy, that employers tell us they need. It includes a new foundation stage, similar to that which already applies in England, to provide a smoother transition from pre-school to formal education.
The revised curriculum has been extensively consulted on and has been welcomed by teachers. It will give back to Northern Ireland’s highly skilled teachers the opportunity to address pupils’ individual needs. It will lay a solid foundation for study at GCSE, A-level and beyond, developing young adults ready to take on the challenges that I mentioned of employment, training and higher education.
The second area is the entitlement framework. Current arrangements deny many young people an adequate choice of courses at GCSE and A-level. The order introduces an entitlement framework that will guarantee all pupils, irrespective of where they live or the school that they attend, access to a wide range of academic and applied courses. That entitlement will allow pupils to choose subjects that engage and motivate them, rather than be restricted to what is available within the school. The wider choice is planned to be provided through collaboration among schools and, importantly, with further education colleges, enabling resources, facilities and expertise to be used in the most effective way. It will be for schools to decide which of the wide array of accredited courses they want to offer.
There is another dimension to this, which I know your Lordships will welcome, as this House has taken a long and constructive interest in promoting integrated education in Northern Ireland. Delivering the entitlement framework will open opportunities for schools from both sides of the community in Northern Ireland to work with each other and with their local further education college to extend and enrich the number and type of courses available, and for young people to meet in joint classes. We see this as an exciting development and one which, over time, has the potential to break down or reduce the unhelpful barriers that still exist in Northern Ireland. The opportunities for joint provision will also be examined as part of the current review of the schools estate by Professor Sir George Bain.
I now come to admissions, which I know will be seen as the most controversial aspect of the order—the package; it is a package of the two issues to which I have already referred and admissions. Admissions concerns how pupils transfer between primary and post-primary education.
The current admission arrangements, which determine a child’s future at age 11 on the basis of two one-hour tests, are no longer relevant to today’s needs. They distort the primary school curriculum; those who can afford it can pay for extra coaching; and they constitute a high-stakes process that puts unacceptable pressure and anxiety on pupils, parents and, of course, teachers. The result is a system that leaves the majority of pupils being perceived, and perceiving themselves, as failures at the age of 11. Rather than providing a ladder out of disadvantage, there is a significant bias against the less well-off in the test results themselves, which is compounded later in public examinations.
Of course it is possible to quote examples—I expect that we shall hear some tonight—of personal experiences of how getting a grammar school place made a difference to the life chances of those from modest circumstances, but the current facts tell a different story. Only 7 per cent of those at grammar schools receive free school meals, compared to 28 per cent in other secondary schools. In some mainly Protestant schools, the figure is as low as 3 per cent. Far from bridging the social and economic divide, the present arrangements perpetuate it.
It is simply not right that a child’s future should be determined at age 11, nor is it right to segregate children into two discrete groups at that age. The Government are committed to ending academic selection in Northern Ireland and to a new system that involves parents choosing schools rather than schools selecting pupils.
I am always conscious when this case and other cases are put that the Minister concerned has usually been a beneficiary of the system that he or she seeks to change. I was not, I never sat the 11-plus; I had been off school for a year. However, I did sit a 13-plus and went to a secondary technical school in Birmingham. Those are my credentials, which are important, because otherwise your case can be partly undermined. It is perfectly good to go through a system and then say that it should be changed but, sometimes, people do not volunteer their personal experience. I think it right that I do.
The Government acknowledge the current process to restore devolution. Therefore the draft order now includes a provision that leaves the decision on academic selection to Northern Ireland politicians, provided they are up to the job of working together to restore the Assembly by 24 November. If the Assembly is restored by that date, a vote in the Assembly will be required to end academic selection. That is contained in Article 1(6) and (7). However, we cannot allow the uncertainty to continue indefinitely, and if the Assembly is not restored by that date, the provision ending academic selection after the 2008 tests will become effective immediately. These tests will take place in November for entry in 2009, so it will be 2010 before the new system starts. This is not a quick fix tomorrow; it is four years away.
Understandably, noble Lords will ask whether, if we are ending academic selection, we are also ending grammar schools. Contrary to what is alleged, I can rightly claim that I have not come here tonight to bury the grammar schools. Grammar schools will continue because the order will not end them. They will remain, and will continue to offer a largely academic curriculum, alongside the new specialist schools and schools offering a curriculum with a more technical or applied emphasis. We believe that parents are best placed to decide which of the various types of provision available best suits the needs of their children. In these circumstances, future transfer arrangements will be on the basis of informed parental choice. Parents will have a wide range of information about their child through the pupil profile and advice from the primary schools. They will also have information about what each post-primary school has to offer. If parents wish, they can have discussions with prospective post-primary schools and even let those schools see the pupil profile, although the schools cannot use the information in it exclusively to decide whom to admit.
The key point is that this will not be a high-stakes process. It recognises that children develop and mature at different rates and that their interests and aspirations change. No child will be labelled a failure at 11. Instead, as part of this package, which is not only about admissions but about the curriculum and the entitlement framework, the new arrangements will provide for key decisions about children’s future pathways to be made from age 14, when course choices are made. If schools are oversubscribed, they will decide whom to admit by applying admissions criteria which they have chosen from a menu of criteria prescribed by the Department of Education. These will include criteria such as siblings, feeder schools or the parish, which are already widely used by post-primary schools, with an appeal system, and will be partly in regulations. They must be widely consulted on, which they will be next year.
The new admissions arrangements will be fair, open and transparent. Fundamentally, they will ensure that no individuals or groups of pupils, such as those living in rural areas, will be disadvantaged. To suggest that they will result in postcode selection is blatant scaremongering. Nor is there any reason to suppose that they will lead to a dilution of the academic ethos of grammar schools. This is an important point. Grammar schools are an enormous percentage of the schools in Northern Ireland; they constitute a third of the schools and have 40 per cent of the pupils. This is completely different from the situation in England. However, the evidence is that a wider intake does not dilute the academic ethos of a school—we can see this in today’s figures—simply because of the drop in pupil numbers in Northern Ireland. There are 50,000 spare places in schools.
The current statistics show that grammar schools in recent years have been admitting a much wider range of transfer grades than before, but this has not had a detrimental effect on their examination performance. According to the last figures I saw, for 2004-05, only two out of the 69 grammar schools had exclusively A-grade entrance, and 82 per cent had an intake that went as far as grades C and D. Today, 10 per cent of grammar school pupils are at C and D grades. The academic performance of grammar schools is not being diminished by having a wider intake, so no one can argue that there is a narrow, high academic intake of grade-A pupils. One only has to look at what is there today and see the results.
Some claim that the vast majority of people in Northern Ireland oppose the changes, and I have no doubt that we will hear that claim tonight. It is somewhat disingenuous. The statistic most frequently quoted—I have seen it lots of times—is that 64 per cent of the replies to the household response forms in 2002 advocated the retention of academic selection. That was 64 per cent of the 16 per cent of the population who responded—hardly a majority. However, 57 per cent of the same parents in the same survey said that they wanted the transfer test abolished and the same criteria for all. Some 77 per cent of them wanted parental preference. The implication of those two figures is that they wanted a different type of test, but I understand that, since 1947, there have been 10 different types of test in Northern Ireland at 11-plus, each of which has lasted for about five years before they worked out that it was not fit for purpose and some new test came along.
The issues involved are too complicated to be reduced to yes/no answers. The Assembly Education Committee acknowledged that when it advised the then Minister on consultation methods. This is sound advice. The reality is that there remains a wide diversity of views on this issue, and it is the Government’s duty to reach a decision in the best interests of all. That is what we have done. The Government should also give local politicians the opportunity finally to decide the matter if they are back at work by 24 November. It is in their hands. If it is the most important thing for the future of Northern Ireland, they will get the Assembly working, which is what they should be doing in the first place. There will be no excuse for buck-passing then.
Finally, I referred to suspensions and expulsions. From time to time, the normal sanctions for poor behaviour are not sufficient and it is necessary to suspend or, in some extreme cases, expel a pupil. Following consideration of responses to the consultation, the Government have decided to put on hold their plans for a common expelling authority. However, to secure greater consistency and fairness, all schools will be required to act in accordance with a common scheme for suspension and expulsion.
The draft order also contains a number of minor amendments to the education law, including amendments on behalf of the Department for Employment and Learning and the Department of Agriculture and Rural Development.
I have set out what the education order will achieve. An amendment to the Motion, which will be moved by the noble Lord, Lord Rogan, would of course postpone these much-needed reforms to the education system in Northern Ireland. Manyof those reforms are closely aligned with the recommendations made in 2001 by the Northern Ireland Assembly Education Committee, not Westminster. This committee was representative of all the main political parties in Northern Ireland. Approving the amendment to the Motion would deprive children of the opportunities recommended by that committee. In the draft order, these translate as revising the curriculum, which will provide the flexibility I mentioned to tailor teaching to individual pupils’ needs while still providing the basics, and cover the range of academic and vocational courses, which the entitlement framework provides, and the greater flexibility for pupils to change direction as they develop and mature, all of which helps to engage and motivate children to learn and raise standards for all. The Government believe that ending academic selection is in the best interests of all children in Northern Ireland. The process to restore the Assembly is in place, and the Government have therefore provided an opportunity for Northern Ireland politicians to vote on ending academic selection, but it cannot be delayed after 24 November.
The review has already gone on for over six years. I have lost count of the number of direct-rule Ministers who have been involved in this. Tony Worthington, my honourable friend in the other place, was one of the first Education Ministers after the Labour Government came to power in 1997. We cannot allow the uncertainty about the future to continue. Given what I have said, this is about much more than the narrow issue of academic selection. There is a knock-on effect when pupils change courses at 13 to 14, which sets the pattern for the rest of their courses, and there is the effect on primary schools. This is a package that includes the curriculum changes, the entitlement framework, and knocking off the narrow academic selection of the 11-plus.
To approve the amendment would be a retrograde step, so I hope that in due course the House will approve the Motion. I beg to move.
Moved, that the draft order laid before the House on 12 June be approved.—(Lord Rooker.)
rose to move, as an amendment to the Motion, to leave out all the words after “That” and insert “this House declines to approve the Education (Northern Ireland) Order 2006 until the people of Northern Ireland have been given the opportunity to approve the proposals contained therein in a manner analogous to the procedures followed in regard to similar proposed changes in England”.
The noble Lord said: My Lords, I am very proud to address your Lordships’ House tonight as the product of a grammar school education. I went to the Wallace High School, which is very much part of the community in Lisburn, County Antrim. That school takes boys and girls from every walk of life, and gives them a huge range of opportunities. It is certainly not a case of money or resources. It is about an educational ethos. There is a fundamental belief among the teachers that every pupil is capable of achieving his or her best. Many pupils went on to the Queen’s University, Belfast, and other highly regarded universities in Great Britain and Dublin. Many of us were the first in our families to go to university. We owed that opportunity to the schools which helped us to fulfil our potential. That is the secret of success of good schools, and so often it is grammar schools which have lead the way.
In Northern Ireland, grammar schools represent an enduring excellence in our state education system. By every measure, Northern Ireland grammar schools outperform all other schools in the Kingdom—maintained, specialist, fee-paying or academy. Pupils at grammar schools achieve better GCSE and A-level results, and provide more added value, to use current education jargon. Northern Ireland’s grammar schools are truly vehicles for social mobility. The fact that I am standing here tonight and addressing this House is proof of that.
When Labour—hardly traditionally supportive of grammar schools—was elected in 1997, it chose in England a totally different approach from that which it is now pursuing in Northern Ireland. It put in place legislation that would allow parents to hold ballots on the future of grammar schools in their area. A few campaigns were started. None has succeeded. Some would argue that the cost of such campaigns could have been used to better educational purposes. But it seems intuitively correct that regions or communities should decide what is best for their children. That is truly local democracy.
Grammar schools in Northern Ireland, unlike in England, educate almost half of the children in the Province, yet the Government are committed to making it unlawful to select pupils on the grounds of academic ability. No matter that the public in Northern Ireland want to keep their grammar schools or that standards will fall. What is their crime? It is to be delivering the excellence in education and the sort of superb schooling that every parent wants for their children.
I believe that the future of our education system lies in the need to remove as far as humanly possible the baleful influence of politicians. Politicians, driven by ideology alone, should not be allowed to wipe away an entire school structure. Schools should succeed or fail on one basis alone—the quality of the education that they provide to our children.
Following the publication of the Burns report into post-primary education in Northern Ireland in October 2001, the then Minister of Education in the devolved Administration at Stormont, Martin McGuinness, set in train a very involved consultation process on its recommendations. When just over half the responses had been returned to the department, he declared:
“I have 100,000 responses sitting in my Department and those are the people that count”.
The results were published in October 2002. The responses from some quarter of a million Northern Ireland households—which equate, proportionately speaking, to responses from some 5 million households in England—included those from 162,000 parents and 21,000 teachers. It showed that 57 per cent of households, 58 per cent of parents and 64 per cent of teachers were in favour of abolishing the divisive 11-plus, yet 64 per cent of households, 63 per cent of parents and 62 per cent of teachers favoured the retention of some form of academic selection. Opinion on these issues was seen to cross both the class and religious divides. An independent “omnibus survey” of a random sample of the population, which was taken at the same time, confirmed those results. Moreover, the BBC survey in January 2004 and the Belfast Telegraph survey in September 2005, again with random samples, indicate remarkably consistent support for academic selection.
In December 2005, Ms Angela Smith, the then Minister with responsibility for education, published the draft order and simultaneously released the results of a consultation on admissions arrangements which was completed six months ago. While the figures do not appear in the document, the Minister admitted that at least 90 per cent of the responses to the consultation supported academic selection. The Government therefore have deliberately chosen to ignore the outcome of every public consultation and test of opinion on the issue over a period of more than three years and instead seek to impose a policy against the will of the people.
At no time have the people of Northern Ireland had an opportunity to influence the pattern of education reform through their elected representatives. A majority of locally elected politicians oppose this order, which would not pass if our local Assembly were functioning. There are obviously different perspectives on why the Northern Ireland Assembly is not functioning, but it is safe to say that it would be inconceivable for a Government, having promised the people their say, to impose such huge changes in any other part of the United Kingdom against the will of the people and a majority of elected representatives in that area.
In England, the issue is handled with great sensitivity, as highlighted by a statement by the Department for Education and Skills. It states:
“Where selection exists, the government believes in local decision-making as to whether it should continue and has put in place mechanisms to allow this to happen”.
I simply say to noble Lords that the Government have no argument on why they have accorded this right to the people of England while denying it to the people of Northern Ireland. I therefore ask for your support on this amendment. I beg to move.
Moved, as an amendment to the Motion, to leave out all the words after “That” and insert “this House declines to approve the Education (Northern Ireland) Order 2006 until the people of Northern Ireland have been given the opportunity to approve the proposals contained therein in a manner analogous to the procedures followed in regard to similar proposed changes in England”.—(Lord Rogan.)
My Lords, I support the amendment moved by the noble Lord, Lord Rogan. First, I thank the Minister for laying the Government’s case before us in his customary manner—very clear and very precise. For once, on Northern Ireland business, there are many things in the Minister’s opening statement with which I do not agree. It is rare that the noble Lord, Lord Rooker, and I disagree over fundamental matters concerning Northern Ireland. My main dissent concerns admissions and academic selection. As the noble Lord, Lord Rogan, has made clear, this issue has been around a long time. I believe, and I am cynical enough to think, that we are debating it in this manner today, with a possible Division ahead, only because the right honourable Peter Hain, the Secretary of State, has said that he wants this as a tool for negotiation to force the parties together or else to hand a present to the last Minister of Education in the Stormont Assembly.
During the progress of the Education and Inspections Bill, the Government have rightly declared and defended a commitment to supporting high standards in schools. We fully support them in this and hope that they will see it through to the end. They have already seen off an attempt from their Back Benches to abolish all academic selection by 2009, and instead, as has already been said, are giving parents the choice, through a ballot, over whether their school remains selective or not.
That is the right way to do it: to focus on the achievements of each individual school and its relationship with the community it serves. Why then are they not pursuing the same well judged policy in Northern Ireland? This order will abolish academic selection forcibly, and yet it is being promoted by the same Government who voted against the Back-Bench amendment—their own Back-Bench amendment—I mentioned earlier in the Education and Inspections Bill. Although it has been heartening to see the Government rise above old political knee-jerk ideology in the education Bill, it is the more discouraging to see them return to the same discredited theories when they legislate for Northern Ireland.
Why is this the case? The same arguments work equally well, if not better, when related to Northern Ireland. The schools system in Northern Ireland has shown itself more than capable of producing not just equal results to England and Wales, but better. In 2003-04 some 60 per cent of all pupils in Northern Ireland achieved five or more GCSEs at grade C or above. The system is clearly capable of maintaining those educational high standards. In another place, the Government explained that they are worried not only about allowing capable students to excel themselves, but are also concerned to ensure that no child is allowed to drop out of the system in the pursuit of higher grades for others. This must always be guarded against, yet the figures show that here again the Northern Irish system is better at doing this than that of England and Wales. Some 3 per cent of Northern Irish children fail to get any GCSEs above grade C, and while that is of course still too high, it is better than the 4 per cent in England and the worrying 7 per cent in Wales.
The existing system in Northern Ireland does not fail children, either in providing a good education for as many as possible or in allowing students to achieve a high standard. Why are we risking the system with summary execution? If the Government are really concerned about the 3 per cent of children who fail to get any GCSEs above grade C, would they not be better off looking at the continuing culture of organised crime and paramilitarism in the poorest areas of Northern Ireland than attacking a system that has served Northern Irish communities well despite incredible odds? It is both counterproductive and hypocritical.
We know that for years children in many families in Northern Ireland have been deprived of a proper and fair education, and those standards have been poor with a high rate of illiteracy, especially in the Shankill Road. But those of us who have been there—and I have accompanied the noble Baroness, Lady Blood, and others in the past to see the schools on the so-called Peace Line—have seen the appalling challenge parents face in trying to get their children to school at all, let alone that of teachers trying to teach the children. For more than 20 to 30 years they did not know whether a bomb was going to come through the window. That is why there is a divide in the standard of education in Northern Ireland. That is why so many children in the poorer areas have not had a chance to receive a fine education. We tried very hard to put a part of the University of Ulster in Springvale at the back of the Shankill, and I backed that proposal hard with the millennium group and others. The Government refused it: not enough money.
It is not just the contents of this order that Members on these Benches oppose, it is the very nature of how it is being imposed. The Government’s summary of responses to the consultation of this order lists those who support the prohibition on academic selection. But hidden away near the end, they are forced to admit that it was opposed by the majority of the public. Public feeling towards academic selection has been the subject of so many consultations and reviews that it is extraordinary that the Government still seem to be in doubt about it. The Household Response consultation in 2002 showed that 64 per cent of the public support academic selection, more than twice the number who oppose it. We have already heard about a poll by the Belfast Telegraph last year which showed that two-thirds of the public support academic selection, and yet another poll taken in February this year showed over 90 per cent support for it.
To go ahead with something which is clearly so unwelcome and so sensitive in an undemocratic way to a large, if not a majority, swathe of those who will have to suffer the consequences is arrogant in the extreme. The Government showed clearly their commitment to being a “listening Government” when the then Education Minister, Angela Smith, was reported in the Belfast Telegraph as dismissing the consultation response with the words, “not a referendum”. It appears that the Government have no interest in listening to the public unless they say the right thing. One might wonder why on earth they bothered having the consultations at all.
As a nod to the concept of democracy, the Government have conceded a proviso that the power to ban academic selection in the order will not come into force if the devolved institutions are restored on 24 November. That is something we fought for in this House and argued with the Government in the corridors. But they think that they are turning it to their own benefit: they are going to use it as a sledgehammer to hit the unionists with in order to force them back into government with Sinn Fein. But if that does not happen, the ban will automatically come in the day after. Continuing with the ban after conceding this proviso is extraordinary. The Government are simply engaged in a crude exercise to blackmail unionists into a power-sharing Government. “Form a Government with Sinn Fein by 24 November”, they say, “or the ban on academic selection comes into force the day after”. They should know by now that the people of Ulster do not yield to bullying.
My Lords, I support the order and oppose the amendment proposed bythe noble Lord, Lord Rogan. I thank the Minister for setting out the proposals in this order. It is a very difficult issue and I know that views are sincerely held. But there are two desires: one is to make certain that there is no selection in secondary education. It is a desire of the Government and that of Members on these Benches. The second desire is to have devolved decision-making. Given that there are 20 minutes left for debate, I have to say that this is not the way to discuss the merits of comprehensive education and the whole business of secondary education provision in Northern Ireland. There has to be a better way of dealing with major issues like this.
It should be dealt with in Stormont, of course. The new Stormont Government were set up by the Good Friday agreement in 1998 and supported by a referendum on 23 May, which is now more than eight years ago. Considerable efforts have been made to get it up and running by 24 November, but if that date sees no success, during the eight and a half years since the agreement the Assembly will have functioned properly for only two-and-a-half years. Devolution would give Northern Ireland the opportunity to create successes or, in my view, to make mistakes. But we are without devolution at present and the issue is whether difficult or controversial decisions be made now.
The order delivers a neat way of going forward. On the one hand would be the ending of the 11-plus. It appears that the test in itself has few friends. One suggestion is to bring in a child-friendly form of selection, which perhaps is not that controversial, but the major element is ending selection unless it is stopped by a new Stormont Assembly. I have been opposed to selective schools all my life and happily it is Liberal Democrat policy, but if the Assembly is restored, that is the opportunity and challenge of devolution.
Who is in favour of selection? The people in favour of it are those closely associated with grammar schools and two of the political parties, the UUP and the DUP. As always, no one is shouting the odds for the preservation of secondary modern schools—we have not had that for the past 30 or 40 years in England. Who is supporting the comprehensive schools? It appears to be many of the educational professionals, many of the unions and many of the political groups—Sinn Fein, the SDLP, the PUP Alliance. What is proposed is a unionist solution because comprehensive education is the norm in England, Scotland and Wales. The amendment of the noble Lord, Lord Rogan, refers only to the change in the rump of grammar schools that are left in England, not to the totality of schools.
If devolution is re-established, it will be a major success. If that happens and the comprehensive education argument fails, many staunch supporters of educational change will need to campaign, and I wish them well if that happens. If devolution is not re-established, selection will cease, but, sadly, devolution could be years and years away.
We have been invited to talk about our personal experience; mine is quite strange. I attended a primary school in Yorkshire and sat the 11-plus in February 1953. I can even remember some of the questions. In April 1953, the whole of my intake was sent off to the secondary modern school because we were to be replaced by four or five year-olds. When we got to the secondary modern school, the staff did not know what to do with us—they had not had a group of primary school pupils in their final year—so they called us “remove”. In May 1953, I was stood in the assembly hall when the results were announced by the head teacher of that school—the headmaster we called him in those days—and he read out the names. Happily mine was one of them, but I saw in that place the reaction to the change that was going to affect lives. I went from that assembly into a class and the woman who was teaching that class said, “I’ve listened to what the head said in the hall and anyone who is any good is going”. What a thing to say to those young children. Now whether or not that should have been said, that is what happens when you have selection. My Lords, support the order.
My Lords, before the noble Lord sits down, perhaps I may ask him a question. He wishes to abolish grammar schools in Northern Ireland—that is a position to take—so why is it that he has not supported policies to abolish grammar schools which are run by Liberal councils and which have been run by them in the past? Is it now the Liberal policy to abolish those grammar schools in England?
My Lords, we have devolution in England in terms of those serving in local government. I have no notice of this in any specific local authority. I know what I did in the 25 years that I served as a local councillor and I know what successes I achieved in those circumstances.
My Lords, before the debate continues, perhaps I may draw to your Lordships’ notice that this debate is not strictly time limited. However, dinner-hour business normally takes about an hour in order to comply with the other business of the House. I have been asked to draw that to your attention; the answer is in your Lordships’ hands.
My Lords, I oppose the amendment of my noble friend Lord Rogan but not because I do not understand his intention in moving it. It would be great if this issue could be left to our own Northern Ireland Assembly, and I speak as one who truly believes in the Assembly. Indeed, during the referendum I actively campaigned for a yes vote. I pay tribute to the noble Lord, Lord Trimble, who is in his place, for his courage and foresight in the work that he and his party did at that time.
But, in opposing the amendment, my fear is that the education question could be set back for a very long time. Some of the information that has been sent out opposing the education order states that cross-community support would not be given. Meanwhile, the education of children and young people in Northern Ireland is simply put on the back burner—for how long, no one knows. I ask your Lordships to oppose the amendment.
My Lords, I start by declaring two interests: first, I am the proud product of a Northern Ireland grammar school; secondly, and perhaps more relevantly, I was the Minister who brought the last major education reform order for Northern Ireland to the House when the Minister and I were Members of another place. He will recall that that education order protected the grammar schools and established the Council for Catholic Maintained Schools. The Catholic bishops, who were as concerned as I was about standards in some of the maintained schools in the Catholic tradition, wanted stronger powers to raise standards in those schools, and Parliament gave them those powers.
The order introduced a new curriculum and a cross-community aspect to that curriculum. I was interested in what the Minister said about flexibility. What he actually meant was that the focus of that new curriculum is to be diluted. That is not in the educational interests of Northern Ireland’s children. The order also set up new curriculum and examination authorities precisely to drive ahead the quality of education for all the children of Northern Ireland and, if I may be permitted a personal comment, it also included the one piece of legislation of which, in 11 and a half years as a Minister, I am most proud: it put the option of integrated education on the statute book. There was one integrated school in Northern Ireland when that order was brought forward; today there are 50 or so, going on 60. That is a consequence of the far-sighted decision-making of this House. I remind the Minister that his party voted against that reform order.
The Minister has referred to entitlement in the context of it being a whole new exciting dimension, where schools in Northern Ireland, by implication, for the first time will be able to work together, to collaborate and, on the wonderful horizon, to collaborate with further education colleges. The Minister does not appear to be aware that that has been going on in Northern Ireland for years and years—and it does not need an education reform order today to put it in place.
However, I take some comfort from the fact that in the 1970s, the previous Labour Government also decided to abolish grammar schools and put comprehensive education in place. When we took office in 1979, there had been no delivery. It seems to be a constant theme of Labour Governments. I hope that history will repeat itself.
The Minister said something that I would not have been surprised to hear from his right honourable friend the Secretary of State. But I would have expected better of the Minister; he knows that I hold him in high regard, and have done so for many years. He said—and I quote him as accurately as my memory will permit—that if education was the most important thing in Northern Ireland, devolution would be back in place by the middle of November.
I was one of only two Ministers who served in Northern Ireland for more than six years, and I bore the brunt of the attempts by extremists at both ends of the political spectrum to kill me and my colleagues and to disrupt democratic government. This Minister—the noble Lord, Lord Rooker—implied that if education is the most important thing, devolution will be back in place. He and I know, and the House knows, that security, democratic government and accountability are all more important to all the people of Northern Ireland than is education. As a former Education Minister in Northern Ireland and a product of the system—I am a graduate of the primary university in Northern Ireland—I think I can speak with some authority, having borne the brunt and been the first Minister who started the peace process in the Province.
Incidentally, speaking of the peace process, the Government keep on using the Good Friday agreement as a reason for introducing policy. I remind the Minister that this piece of legislation would fail to meet the terms of the Good Friday agreement because the agreement requires that on contentious issues—which this is—there must be overwhelming support from both sides of the community. This legislation fails to meet the terms of the Good Friday agreement. It is educational dumbing down, if not something worse. I am sorry that the Government are using intimidatory tactics. I congratulate the noble Lord, Lord Rogan, on his speech and I, for one, will support the amendment.
My Lords, I wanted to ask the Minister a question before he sat down, but he sat down too quickly. He will understand that many of us here tonight are neither enthusiasts for the 11-plus nor against it. Some of us are concerned rather with consistency between the education system here and the education system we have the power to impose on Northern Ireland.
I recognise that grammar schools in Northern Ireland are a very different kettle of fish from grammar schools in the UK, where they are a minority. But the Minister mentioned the new specialist schools. They are not a minority in this country; they have become the majority. We are passing through this House a Bill which will give such schools the right to recruit up to 10 per cent of their intake on aptitude, but in the order, aptitude and ability are bracketed together as equally taboo. Can the Minister clarify whether, as a result of the order, specialist schools in Northern Ireland will therefore be treated differently from those in the UK?
My Lords, I have been at Westminster for the past 23 years, and here I have sought to uphold democracy. For 23 years before that I was a school teacher—I was a school principal for 16 of those years. This Order in Council is the negation of 46 years of my life and the destruction of the very principles of democracy that we in this House have been charged to defend.
I have the greatest respect for the Minister; it gives me no pleasure to say that he is no longer in Northern Ireland. I have sympathy with him in so far as he has been briefed to present his case based on one wrong premise after another. Bluntly, his case is wrong; if the premise is wrong, the argument is wrong and the conclusion is inevitably wrong.
The Government have allotted us 60 minutes in which to dismantle and destroy an educational tradition that has been a bulwark against poverty and ignorance and withstood the ravages of more than30 years of terrorism. That happened despite a parents’ petition that was, on Thursday last, presented in another place by Kate Hoey MP; despite a pupils’ petition—I have it in my hand—with several thousand signatures from an active group Pupils for Choice; and despite a public opinion poll on this order in the Belfast Telegraph where 90 per cent voted against. Is this rea1ly democracy at work? Are we going to sanction such educational vandalism that flies in direct opposition to parents representing the present, to pupils who signal the future and the experience of people such as Kate Hoey and me who have been past beneficiaries?
Do a Government who fail to consult, carry out any infrastructural audit or produce costings have any right to your Lordships’ support? Let me quantify that. On 30 June last year, in answer to a Written Question, I was told:
“It is not proposed that any such audit take place”.—[Official Report, 30/06/05; col. WA 45.]
On 30 November, I was told:
“It is not possible to assess the associated costs at this stage, but the position will be kept under review as new arrangements are developed”.—[Official Report, 30/11/06; col. WA 45.]
On 7 March this year I was told that,
“the Costello report, was not published for consultation”.—[Official Report, 7/03/06; col. WA 119-20.]
With planning and foresight of that calibre, is it any wonder that our troops in Afghanistan are under strength and ill equipped; that rapists and murderers are released from prison and back on to our streets and we do not know who they are or where they come from? Are we wise to trust a Government like this with our children's toys, let alone their futures?
This is about education for generations to come, about opportunity and social mobility. How can any Government be so pitifully naïve or callously undemocratic? How could we democrats justify such perversity? We have been told that what is proposed here today is, apparently, so trivial that it can be accepted here and now on the basis of 60 minutes’ debate and then repudiated on 24 November next if the Northern Ireland Assembly is, by then, up and running. No, my Lords, you are not dreaming; you are simply sharing my nightmare.
Should children be part of a coercive tactic designed to force a devolved arrangement on Northern Ireland? That is what the Government tell us they intend. Let us forget our impatience and frustration with the Assembly. I am an eager devolutionist—I always have been—but as a teacher and a democrat I cannot ever sanction children being sacrificed in the front line. This Order in Council will inevitably militate against the poor and will deprive the neediest of opportunity and the chance to achieve. Is that the value we put on democracy?
Democracy is ever a tender plant. As parliamentarians we must shelter it against abuse. Children are our hope for the future. They are tender plants too and it would be so wrong to allow them to be used as political pawns as this Order in Council would do. Tonight, democracy is on trial. I support the amendment moved by my noble friend Lord Rogan.
My Lords, like other noble Lords, I have received literature from different organisations and individuals, including Members of your Lordships' House, seeking my support for their particular stance on this issue. The measure before us this evening has been influenced by the report of an 11-strong working group led by the chairperson of the General Consumer Council for Northern Ireland, which was set up to provide advice on options for future arrangements for post-primary education. There has been much debate on this issue over several years, but little agreement on the way forward, with some widely diverging views being held, particularly, as we have heard tonight, on academic selection.
The working group’s unanimous view was that a clear and early decision on the future direction of post-primary education in Northern Ireland was needed. The working group also took the view that the interests of the pupils should be paramount, and considered that while high-achieving pupils perform well, the system was failing too many other pupils. As a result of its review, the working group concluded that the status quo was not an option, not least because changes already taking place for demographic reasons were having, and would continue to have, a great impact on future provision. By the end of the decade it is projected that the number of pupils in post-primary schools will have fallen by some 8 per cent or 12,600 pupils. By 2040, it is projected that the 11 to 18-age population will have fallen by a quarter.
There is already substantial over-capacity in the post-primary school estate, and in 2002 32 such schools had fewer than 300 pupils. Popular schools, including grammar schools, are likely to continue to fill to capacity, despite overall pupil numbers steadily declining, resulting in an increased number of small schools. Indeed, grammar schools are already admitting a wider-ability range of pupils, with an increasing number of pupils having the lower transfer grades C and D, which raises questions about the appropriateness of the curriculum being offered in the light of the broader range of ability of pupils in these schools.
On the other side of the coin, a smaller proportion of pupils will transfer into non-grammar schools. The figure is, I think, about 60 per cent non-grammar to40 per cent grammar, leading to an even greater concentration of socially and educationally disadvantaged pupils in non-grammar schools and an increase in the number of schools with low enrolments, raising serious questions about their future viability. Small post-primary schools cannot provide their pupils with the same level of curriculum choice as larger schools, to the disadvantage of the pupils concerned. In such a situation, pupils’ choices are constrained by what is available, rather than enabling them to take courses that are relevant to their needs and aptitudes—and, indeed, as shown by the 2002 skills monitoring survey, relevant to the needs of employers as well.
The working group proposed that schools to which pupils aged 11 should transfer should offer a broad general education, together with extension courses to widen and develop interests and which also reflect a school’s particular emphasis and ethos. At age 14 and beyond, schools would offer a wider variety of learning routes, whether in-house or in collaboration with other schools, the further education sector or other providers. The working group considered that age 14 was the earliest point at which major decisions involving greater choice for parents and pupils about the most appropriate learning routes or pathways should begin to be taken, whether vocational or academic or a mixture of both.
I believe that the working group on whose report the draft order is based made a compelling case for change—change based not on closing grammar schools, which would no doubt largely maintain an academic rather than a vocational ethos, but on an increasing choice of curriculum and courses in post-primary education to meet the differing needs of pupils and the needs of employers; change based on recognising and addressing the adverse impact of democratic movements and change on schools and pupils alike; change based on recognising the pressures, unfairness and distortions on so many pupils and the primary school curriculum of the transfer test and academic selection; and, as the working group stated quite clearly, change on which positive decisions are needed now.