Wednesday, 2 December 2009.
Arrangement of Business
My Lords, before the Minister moves that the first statutory instrument be considered, I remind noble Lords that, in the case of each statutory instrument, the Motion before the Committee will be that the Committee do consider the statutory instrument in question. I should make it clear that the Motions to approve the statutory instruments will be moved in the Chamber in the usual way.
European Communities (Definition of Treaties) (Stabilisation and Association Agreement) (Republic of Montenegro) Order 2009
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the European Communities (Definition of Treaties) (Stabilisation and Association Agreement) (Republic of Montenegro) Order 2009.
Relevant Document: 23rd Report, Session 2008-09, from the Joint Committee on Statutory Instruments.
My Lords, the stabilisation and association agreement is an international agreement between Montenegro and the European Community and its member states which was signed on 15 October 2007. This treaty has not yet entered into force but will do so once all 27 countries have ratified it. This order is a necessary step towards the UK’s ratification.
The principal effect of the draft order is to ensure that the powers under Section 2 of the European Communities Act 1972 would be available to give effect to any provisions of the agreement and permit any expenditure arising from the SAA to be from the consolidated fund. Montenegro secured its independence in May 2006. It is the fifth country in the western Balkans to apply to join the EU and, as with all other countries in the region, Montenegro shares a troubled past. However, our task today is not to look to Montenegro’s past but to debate its future and the reform process by which Montenegro can move towards the EU.
The UK is a strong supporter of EU enlargement, including for the countries of the western Balkans. Enlargement has been one of the European Union’s biggest success stories, creating stability, security and prosperity across our continent. A larger EU gives a stronger influence in shaping global action to meet today’s challenges and helps business and our economy by providing access to a bigger market. We recognise, too, that it is important that enlargement is based upon conditionality; that a country may only join the EU once it has met all the criteria for membership and has undertaken the necessary reforms to do so. The implementation of the stabilisation and association agreement begins the process to a time when Montenegro might be able to start moving toward full accession to the EU; it is an important step in the fulfilment of that conditionality.
Montenegro has come a long way since independence and should be commended for the efforts it has made to put in place a thorough reform process. The stabilisation and association agreement recognises Montenegro as a “potential candidate” for the EU. It sets out clear stages for Montenegro’s progress towards eventual EU membership via a closer partnership with the EU under the EU’s stabilisation and association process. I emphasise that it is a rigorous, condition-based process.
The efforts Montenegro has made in implementing its interim agreement demonstrate that the prospect of EU membership accession continues to encourage reform. The most recent European Commission progress report in October 2009 shows that Montenegro has made progress on political and judicial reform, but highlights the need for further progress in specific areas such as strengthening administrative capacity and fighting corruption. It also gave a positive assessment of Montenegro’s performance on regional co-operation.
Montenegro’s SAA has now been ratified by 23 of the EU member states, as well as by the Montenegran and European Parliaments. A track record of SAA implementation is required before Montenegro can achieve candidate status. The avis questionnaire, which Montenegro is currently completing, will also play a key role in identifying future reforms for the country before Montenegro begins the process of opening accession chapters.
I am satisfied that the order is compatible with the rights contained in the European Convention on Human Rights. I commend this draft order to the Committee.
My Lords, I thank the Minister for introducing the order, whose purpose, as we have heard, is formally to give parliamentary approval to an EU stabilisation and association agreement with Montenegro. It is a beautiful country, proud of its long history. We never forget what the famous Montenegran writer, Milovan Djilas, wrote in Land Without Justice:
“For centuries this country’s social and political life was organised on a patriarchal, tribal basis in which the bratstvo (family ties) was vital”.
Despite much modernisation, it is still a tough and brutal country that has not forgotten its old feuds, described by the Minister as a “troubled past”. This only goes to endorse the importance of this agreement association with the EU.
The SAA provides for enhanced co-operation between Montenegro and the European Union. The agreement was signed in October 2007, following Montenegro’s gaining of independence from Serbia and, effectively, the former Yugoslavia. It covers a wide range of subjects, including Montenegran accession to the WTO, and promotes further regional co-operation between Montenegro and its neighbours.
Montenegro will be helped to conform to EU standards and to foster freer trade with the European Union and its neighbours, some of which are also undertaking similar processes. There are additional measures on co-operation to combat terrorism, border and visa controls, money laundering and people trafficking. Montenegro has declared its interest in joining the Union. The country is now recognised by the EU as a potential candidate for membership.
As the shadow Minister for Europe noted in another place, the SAA may not be the most controversial of treaties on European matters—I doubt that this order will face much, if any, strong opposition. However, should the order be passed, it will represent an agreement with the UK.
With this in mind, I have a few probing questions which I am looking forward to the Minister answering. The European Commission’s Montenegro progress report for 2009 concludes that Montenegro has made progress in the political sphere, judicial field and border disputes, to name a few. The European Scrutiny Committee’s report of 11 November stated that the Commission is preparing an opinion on the application for membership from Montenegro.
I have three questions. Is the Minister aware of any further developments in this regard and does she believe that Montenegro is likely to become officially a candidate for the EU in the near future? Secondly, what is her assessment of relations with Russia regarding future development in Montenegro? Thirdly, does the order act as a fast track to EU membership or does it mean that Montenegro becomes just a potential candidate?
I hope that we can learn from previous experience and insist on institutional reform prior to EU accession, in contrast to the accessions to the EU of Austria, Sweden and Finland in 1994, and later of Bulgaria and Romania, which led to so many complex problems and difficult decisions.
The EU interior Ministers have recently announced their intention to relax visa restrictions for those travelling from Montenegro to the EU. Will the Minister confirm if that applies specifically to the UK? The progress report also stated that the International Criminal Tribunal for the former Yugoslavia has deemed Montenegran compliance as generally satisfactory. Does the EU share that view? How did it reach its estimation? Does the EU have cause to believe that wanted war criminals from the Balkans, particularly from the former Yugoslavia, may be in the country?
In conclusion, we on these Benches support the progression of this order, and agree that Montenegro’s development in recent years has been encouraging. We acknowledge that agreement of the order could foster much more political and economic progress. I look forward to the Minister’s response, especially to our questions.
My Lords, I thank the Minister for coming to the Grand Committee to propose that the order be approved. I also thank the principal opposition spokesman for her comments, which we support, and for her questions, which should be answered today as far as is possible if that is convenient for the Government at this stage.
There is some feeling now, although progress has been made, that if this is going to take some time then some in Montenegro will be disappointed about the progress. However, if we look back at how long it took for a large number of member countries from different parts of the European Union territories that were previously candidates for entry, the current rate of progress does not necessarily reflect badly on anyone.
As we know, all the western Balkan countries now wish to join the EU as soon as possible and that is widely considered objectively to be a good thing, not just because there is something automatic about it but because of the turbulent history of that area. My noble friend Lord Ashdown, who is here and who may contribute briefly to this discussion today, is a great expert on more than just one part of the former Yugoslavia. The encouraging feature in Serbia itself, for example, appears to be that the previously atavistic and strident nationalism of the transitional period has now been replaced by a much more positive pro-European and pro-EU feeling there among the population in general and among the leading politicians. That, too, bodes well for the stability of the region.
Montenegro itself broke away from Serbia in 2006, as the Minister said. That was originally resisted by Serbia but was then accepted, which is also progress. It is a very small territory in terms of population, a complicated territory and a beautiful country, as the opposition spokesman said, with well under 1 million people, including the minorities from Serbia and Albania. Some anxieties have been expressed by those who know more about the country—I have never been there myself; I hope to go in due course—that there is an element of unruly freewheeling bandit capitalism is manifesting itself there in various ways. That may need observation to see how it develops but it is often a feature of countries in transition, something that has been seen in Russia since the fall of the Soviet Union. I do not wish that to sound condescending; it is just one of those things that happen in those parts of the world where a history of such activity has been manifest in the past.
Montenegro is potentially a good candidate to be a member of the European Union, and many British people and other tourists and visitors from other member states have proclaimed with some enthusiasm the merits of a tourist industry in what is an extraordinary country, particularly with the Adriatic Sea border areas that many foreigners now visit.
The situation bodes well in due course but more work needs to be done. There seems to be a willingness among leading Montenegran politicians and parties to engage with this process in an energetic way. That looks good for the future, provided that there is constant reassurance from the Commission, the other institutions and the European Parliament itself that their monitoring processes are effective, realistic and comprehensive, and that the British public in our own member state can be reassured that Montenegro will, in due course, be a first-class, high-quality candidate. Time will tell, and time is needed before that happens.
I rise not in any sense to oppose the order but to support it. It gives me great pleasure to see Montenegro reach this point. I have known the country since 1995 and its extremely wily, intelligent, clever and effective leader, Milo Djukanovic, for at least that long. As the noble Baroness said a few moments ago, it is an unbelievably beautiful country with a remarkable people. The ties with Britain go well back to Tennyson’s great eagle of liberty. Indeed, if you go to Cetinje, the old capital of Montenegro, you will find that the old British legation is still there. It is still right in the centre of what was at the heart of one of the real issues of freedom in the 19th century.
I have four points to which I hope that the Government and the European Union will pay particular attention. Some have been covered already and I apologise if I cover them again. The first is the rule of law. It is the great gift of Europe to install the rule of law in countries such as these. I remember an old Bosnian coming to me and saying, “Is it true that when we join Europe it’ll be like when the Austrians were here? We pay too much tax and the Government will pay it back”. I said, “Yes, it will”, to which he said, “That’s fantastic. If that happens, it will be unbelievable”. That was his reason for wanting to join.
There is what my noble friend described as “bandit capitalism”. Perhaps not everyone would use that phrase, but there is a certain tradition that goes back deep into Montenegro’s past known as the Hajduk. The Hajduk is a sort of Robin Hood character—a rather romantic figure who lives in the mountains and robs but gives to the poor. I think it would be fair to say that this is a key issue for us to keep a close eye on. I recall going to see a very senior figure in the Montenegran Government in about 1997 or 1998 when we were trying to persuade Montenegro not to part company with Milosevic. I said to him, “You’re going to need more money”. He replied, “Yes, but it’s not like your Chancellor of the Exchequer, Mr Brown, who has to raise taxes if he needs more money. All we have to do is smuggle more cigarettes to Italy”. That was a long time ago and I feel certain that things will have changed, but it will require a strenuous application of the conditionality of the European Union if we are to achieve the necessary moves forward on the rule of law.
The second issue—here I echo the words of the noble Baroness who spoke for Her Majesty’s Opposition—concerns war criminals. For six years I was next door on the other side of the river Drina, and for four years I was next door on the other side of the river Drina in Bosnia, when catching Radovan Karadzic was our first priority. I have absolutely no doubt that he was hidden by the Serbian Orthodox Church in the monasteries of Montenegro. To say that they did not co-operate would be an understatement. In fact, the Serbian Orthodox Church did all that it could—at least, with the knowledge if not the connivance of the Montenegran Government—to make sure that Karadzic was never brought to justice. My view is that the outstanding fugitive, Ratko Mladic, is not in Montenegro. I think that he is probably being protected either in Moscow or unofficially by certain renegade elements of the Serb security services. However, I would want to be assured that Montenegro fulfilled its full conditions under the ICTY legislation for the capture of war criminals.
The third issue is the Moscow element, referred to by my noble friend. This is a small country—the population is about 600,000—and it is not difficult for it to be bought pretty well lock, stock and barrel by the Moscow mafia. Today, almost all the coast from the very beautiful coastal town of Budva past Sveti Stefan and east and south is owned by Moscow mafiosi, one of whom—I hope that I shall not be too insulting—is undoubtedly the very powerful figure of the mayor of Moscow, who owns some of the most prime areas there. I hope that we make it explicit to the Government of Podgorica that they must adhere to the rule according to European standards, not Russian standards.
My penultimate point is about the Muslim population. It is very easy for us to forget that there is a large Muslim population outside Bosnia in the Sandžak and the area around Rožaje in Montenegro. By the way, the Montenegran Government have been extremely good at understanding the importance of preserving ethnic harmony with the Muslim minority in Albania. I have no word of criticism for their policies in this regard, but it is an area in which we would wish to support them and help them to ensure that they continue to observe those policies. They always have done so and the policies stand in stark contrast to, for instance, the policy that was followed in neighbouring Serbia—at least in the days of President Milosevic.
My final point is the most important. It gives me real pleasure to see Montenegro reach this point, which I hope will be reached by all other countries of the western Balkans, but there is a problem. The precedent created by the breakaway of Montenegro from Serbian Montenegro, as it was originally, is being followed actively and explicitly by Milorad Dodik, the Prime Minister of the Republic of Srpska, as a precedent to follow in Bosnia—with a deliberate intention, explicitly stated by him, that if he is to make Bosnia dysfunctional in the same way as, in effect, happened in the Serbia-Montenegro state, the consequence will be that the Republic of Srpska could follow Montenegro and split away. That would be a catastrophe and would lead us straight back to war. If we were to tolerate that, it would mean that the European Union was prepared to lay its hands to the policy of Radovan Karadzic in dividing up Bosnia, as it were by absentmindedness or worse.
The noble Baroness referred to “bratstvo”, which is the word for brotherhood. In the old days of Tito it was “bratstvo i jedinstvo”—brotherhood and unity. That has been followed more recently by that other Balkan saying which has dominated—“Da komsiji crkne krava”, which means, “My neighbour’s cow is dead, that makes me happy”. That has been the policy. I hope that we will return to a policy of bratstvo i jedinstvo within the European Union. But that means—and I hope that the Minister will respond to this directly—that we must make it explicitly clear to the Government of Podgorica that their passage further down the road to Europe would be blocked if they did not support European policy in neighbouring Bosnia and Herzegovina, and that if they continued to give tacit encouragement to cessationism by the Prime Minister of the Republic of Srpska, Milorad Dodik, that would effectively block any further passage towards membership of the European Union. If we allowed Dodik to use Djukanovic as the model for breaking up Bosnia, whatever we do to help Montenegro towards a European future, we will be denying Bosnia a similar future. I hope we will take a very strong line on that.
I thank noble Lords for their questions, to which I shall attempt to respond.
The issue of the rule of law ran through much of what has been said, relating to organised crime, corruption and how we anticipate this being managed in the negotiations. As I said in my opening remarks, the EU accession process is rigorous, condition-based, and not time-bound. Before accession negotiations begin, justice and home affairs issues are front-loaded in the SAA process. Many noble Lords will be aware that we learnt that lesson from the Bulgarian and Romanian accession process, which was subsequently adapted to comprise a more rigorous assessment process to ensure that candidate countries absolutely meet the criteria for membership. The EU has designated a significant chapter of the negotiations to the judiciary and to fundamental rights. That is important, as noble Lords said. This means that issues falling within this area will be much more thoroughly scrutinised than was the case in the past.
On the related issue of people trafficking and organised crime, I re-emphasise that the accession track is rigorously condition-based. That applies to Montenegro even at this stage of the process; people do not always realise that it applies at this stage. Before Montenegro can open accession negotiations, it needs to demonstrate a track record of SAA implementation, as well as obtaining a positive opinion from the European Commission. We need to recognise that we have learnt lessons from previous accessions, and the introduction of the chapter on justice and the rule of law is very important. The Commission will now have to consider its response and form an opinion on the avis. We expect this to take several months.
I turn to the issue of the Schengen visa. As we know, the UK is not part of Schengen. The agreement applies to Schengen countries to liberalise visas for Montenegro, so that does not apply to the United Kingdom. However, the UK will be reviewing Montenegro’s visa requirements in 2011.
Russia’s relationship with Montenegro is a good one; it is a very popular holiday destination for the Russians. I have no concerns to draw to the attention of Members on this issue at this time.
I understand that there has been a satisfactory level of co-operation with the ICTY, and there are no outstanding issues. The noble Lord, Lord Ashdown, raised a question on how it reached its estimation: it is based on having satisfactory reports from Prosecutor Brammertz’s office in the ICTY—as the Committee knows, that is very important—and on our own diplomatic reporting on the matters. Are there wanted war criminals in Montenegro? We have not been given to suspect the existence of any indicted criminals in that country.
The noble Lord, Lord Ashdown, also raised the issue of its Prime Minister. I am aware that there have been allegations linking its Prime Minister to organised crime and corruption; I understand these relate to the 1990s—I am sure noble Lords are well aware of the circumstances—when the country was subject to international sanctions. However, I am not aware of any connections which give us reason to doubt his Government’s willingness to improve their record in tackling corruption and organised crime. Their willingness seems strong, such is their seriousness in beginning this process towards, hopefully, accession. Indeed, I also understand that a case against him in the Italian courts has recently been dropped.
The Government strongly support the European perspective on Bosnia and Herzegovina, and the part it has played in encouraging politicians to agree on necessary reforms. The UK supports the goal of transition from the OHR to the EU special representative. However, I was there myself in the early summer and we consistently stated then, and continue to do so now, that this can only happen when the 5+2 objectives and conditions required for transition have been fully completed. I agree we must stick very firmly to that position. We continue to urge Bosnian politicians to seize the opportunity presented by the EU-US initiative to reach agreement on completing these 5+2 objectives and conditions. The Foreign Secretary visited Sarajevo in November, and urged Bosnian politicians to focus on making the reforms necessary for the closure of the Office of the High Representative, which would facilitate clearer movements towards EU integration.
I turn to the issue of regional co-operation. It is significant that Montenegro recognised the independence of Kosovo on 9 October 2008: that is a signal of its seriousness in trying to be an effective and co-operative regional actor. We also recognise that the latest progress report we have seen mentions regional initiatives and efforts as significant, welcome developments for the country.
I am most grateful to the Minister for her answer. I fully understand the British Government’s position on Bosnia. I support it and am delighted that the British Government follow that position. However, with great respect, the point I was trying to make is that there is not much point in our pressing for Bosnia to fulfil the conditions laid down by the European Union if Montenegro, seeking to join the European Union, actively undermines our policy in Bosnia. By giving comfort to Milorad Dodik, the Prime Minister of Republika Srpska, who is pursuing a policy which not only blocks Bosnia’s passage to the European Union but encourages secessionism and the break-up of the state, we are allowing Montenegro to act in a way that is contrary to European policy and to the policy of the British Government.
I am asking the Minister a complex question; I fully understand if she does not feel able to answer it now, and I am perfectly happy to get a letter later on. I am asking her to assure us that, as part of Montenegro’s continuing progress down the path to Europe, we should require Milo Djukanovic and the Montenegran Government actively to support our Government’s policy with respect to Bosnia and Herzegovina, and to give no comfort to the Republika Srpska Prime Minister, Milorad Dodik, who is seeking to pursue something contrary to both our interests and Bosnia’s interests.
I thank the noble Lord very much for that, and I will take the offer that he gave me to write a letter, because it is a complex aspect of this process, and I understand that the point that he makes is a serious one that should be addressed.
Legal Services Act 2007 (Functions of an Approved Regulator) Order 2009
Considered in Grand Committee
My Lords, I shall also speak to the second order in my name on the Order Paper.
Noble Lords who have followed the reform of legal services regulation will be aware that it has long been the Government’s intention to see the new Legal Services Act 2007 regulatory regime go live at the beginning of 2010. The sixth Legal Services Act commencement order, which we intend to bring into force in January 2010, will see the Legal Services Board assume its full regulatory powers and approved regulators authorising individuals and bodies to carry on reserved legal activities. Provisions relating to the Office for Legal Complaints and alternative business structures will be commenced at a later stage.
The 2007 Act contains provisions needed for the new regulatory regime to be effective, such as the repeal of current mechanisms for authorising legal professionals, transitional arrangements for those currently authorised, and consequential amendments to primary legislation which ensure that references in primary legislation to the authorisation of legal professionals take account of the new regime.
The 2007 Act also provides powers to make subsequent amendments to primary and secondary legislation to accommodate the changes being brought about by the Act. These two orders use those powers to make amendments to existing legislation to ensure that it will be compatible with the changes being commenced in the sixth commencement order.
I turn first to the Legal Services Act 2007 (Consequential Amendments) Order 2009. This order is made principally under Sections 208(2) and (3) of the Legal Services Act 2007, to which I shall refer as the 2007 Act. Section 208(2) allows the Lord Chancellor to make any supplementary, incidental, consequential or transitional provision necessary to give full effect to the Act. Section 208(3) allows the Lord Chancellor to amend, repeal or revoke existing legislation, again as necessary to give effect to the Act.
As I mentioned in my introduction, one of the key elements of the new regulatory regime is the requirement for persons to be authorised by approved regulators if they are to carry on reserved legal activities. This will replace a number of existing provisions that allow persons to carry on legal activities by virtue of their professional titles or by definitions such as “authorised advocates” and “legal representatives”. Schedule 21 to the 2007 Act amends references in primary legislation so that they refer to the new authorisation regime, once commenced in early 2010.
However, Schedule 21 does not include changes needed to secondary legislation, such as references to “authorised advocates” and “appropriate officers” in the Coroners Rules 1984 and the definitions of “legal representatives” and “professional legal advisers” in the Family Proceedings Rules 1991. This order amends such references in secondary legislation to ensure that they refer to the authorisation regime established under the 2007 Act.
The order similarly amends references to “legal representatives” in the Court of Protection Rules 2007 and the Mental Health Review Tribunal for Wales Rules 2008. As these rules were made after the Session in which the 2007 Act was passed, the amendments could not be made using the Section 208 powers and had to be made instead using the powers in the original enabling Acts for those rules—Section 78 of the Mental Health Act 1983 and Section 51 of the Tribunals, Courts and Enforcement Act 2007. The necessary statutory consultation process, with the Administrative Justice and Tribunals Council, the Lord Chief Justice and the Judicial Appointments Commission, was followed for the amendments to these rules.
The order also updates the definition of “qualified lawyers”, specifically in relation to compromise agreements. This ensures that fellows of the Institute of Legal Executives may continue to advise on compromise agreements if they become managers of legal disciplinary practices, a possibility introduced by changes made to the regulation of solicitors’ practices by the 2007 Act in March 2009.
The order also makes minor consequential and technical amendments to primary and secondary intellectual property legislation when the responsibility for the registers of patent attorneys and trade-mark attorneys passes from the Intellectual Property Office to the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys respectively. For example, references to “agent” will be replaced by “attorney” and references to “individual” will be replaced by “person”, recognising that entities as well as individuals can apply for registration.
Finally, the order amends a number of outdated references to “taxation”, “taxing officers” and “taxed” in the Charities Act 1993. The Legal Services Act replaces most outdated references to “taxation” in primary legislation, primarily the Solicitors Act 1974, with the more modern terms relating to “assessment”. However, no provision was made for the references in the Charities Act, and it has therefore not been possible to commence related amendments to other legislation. This order amends the Charities Act, and other related amendments will now be commenced.
As the order amends a range of existing legislation, it was important to consult other government departments and key stakeholders, such as the Law Society and other professional bodies, at an early stage and gain their approval. The Lord Chief Justice of England and Wales, the Judicial Appointments Commission and the Administrative Justice and Tribunals Council also gave their approval to the amendments.
I turn now to the Legal Services Act 2007 (Functions of an Approved Regulator) Order 2009. Again, this order is necessary as a consequence of changes that will be introduced with the sixth Legal Services Act commencement order. The order amends an inadvertent drafting error in the 2007 Act which, if left uncorrected, would result in the Institute of Trade Mark Attorneys being unable to regulate trade-mark attorney work undertaken outside the UK when it becomes an approved regulator at go-live. Correcting the error will also ensure that the scope of regulation applying to trade-mark attorneys mirrors the scope of regulation applying to patent attorneys.
New Section 83A of the Trade Marks Act 1994, as inserted by Section 184 of the 2007 Act, replicates a drafting discrepancy between the two statutory instruments which govern the registration of patent attorneys and of trade-mark attorneys. Unlike the instrument relating to patent attorneys, the definition in the trade-mark order of trade-mark attorney work does not include “or elsewhere”. The result is that the Institute of Trade Mark Attorneys would not be able to regulate trade-mark attorney work undertaken outside the UK, while its counterpart, the Chartered Institute of Patent Attorneys, is able to regulate patent work outside the UK. It is not the policy intention of the 2007 Act to make such a distinction, so the order corrects the oversight and ensures parity between the regulation of patent and trade-mark work.
The amendment is being made under Section 69 of the Legal Services Act, which provides for the Lord Chancellor, by order, to modify or make other provision relating to the functions of an approved regulator or any other body. As required by Section 69, the order is being made on the recommendation of the Legal Services Board. The board is obliged to consult whenever it recommends a statutory instrument to the Lord Chancellor under these provisions. Accordingly, a consultation paper, together with a draft order and draft impact assessment, was circulated to consumer organisations, regulatory bodies, other professional representative bodies and other key stakeholders during the summer. Six responses were received, which either provided no comment on or approved the proposed amendment.
These orders are required to reflect the changes introduced by the 2007 Act and to ensure consistency of terminology across different pieces of legislation. It is important that the orders are made to coincide with the sixth Legal Services Act commencement order, so that references to the new regulatory regime are consistent when it is commenced in early 2010. It is also important to note that the orders do not expand the scope of existing policy or extend the categories of person who can carry out reserved legal services. I commend these orders to the Committee.
My Lords, I thank the noble Lord, Lord Tunnicliffe, for that lengthy explanation of the two orders, and assure him that I will be considerably briefer; I want to make only two or three points. He dealt with the instruments in inverse order, so I will follow him and start with the Legal Services Act 2007 (Consequential Amendments) Order 2009. I was not involved with that Act—I think Lord Kingsland dealt with it—but I remember its passage. As the Minister made clear, the purpose of the instrument is to amend both primary and secondary legislation. It is obviously appropriate that secondary legislation be amended by secondary legislation but, in the main, we regret Henry VIII powers—they are obviously used here—that allow the amending of primary legislation. I say “in the main”; having looked at what the consequential amendments order tries to do, I think that it is probably right that the powers were there and were used. On this occasion, we are content with the order and what it is seeking to do. We think it is right to ensure, as the noble Lord put it, that members of bodies such as ILEX who are managers of legal disciplinary practices are able to continue to advise on compromise agreements as set out in the order. I have no further comment to make about that.
The second order regarding the functions of an approved regulator appears at first sight to be innocuous. The Minister made clear that it amends an inadvertent drafting error in the Legal Services Act 2007. He ought to think long and hard about those words, “inadvertent drafting error”, and remember the remarks of the noble and learned Lord, Lord Woolf, on the second day of the Queen’s Speech debate when he referred to the torrent of legislation emanating from departments, particularly the Ministry of Justice and the Home Office. If there had not been quite such a torrent of legislation and the Government had confined themselves to properly drafted Bills dealing with single subjects—for which I commend the Bribery Bill, which we are dealing with next week, and which was also commended by the noble and learned Lord—we might not have had those inadvertent errors that have involved the Government having to come back with obscure orders of this sort later on. Those are my only comments on this and I hope that the Minister will take them on board, particularly with regard to future orders that he might want to put before us.
My Lords, I was involved in the passage of the Legal Services Act 2007. I have spoken long and boringly on that to reopen all those issues again.
With regard to the Legal Services Act 2007 (Consequential Amendments) Order, I am rather sorry to see the loss of the word “taxation” from the Charities Act. It was certainly well understood. My costs are still taxed by a taxing officer, as far as I am aware; that is why I do not get as much as I ask for. The concept is still being maintained, with assessments and costs officers, so why we have to modernise the terminology, I am not sure. I have no objection to either of these orders going through.
My Lords, I thank noble Lords for their comments. I think all Members of the House have a natural concern about Henry VIII powers, and I thank the noble Lord, Lord Henley, for his scrutiny and his acceptance that they are appropriate in this case.
I apologise on behalf of the Government for the drafting errors. I do my best to ensure that we make no errors, but I am afraid that we do. However, I am not going to apologise for the “torrent of legislation”, as it has been put. In the past Session I have been involved in a good amount of legislation, and one of its intentions has been to make things more appropriate, simpler and more straightforward. The 2007 Act is such a piece of legislation, as are the Acts that we will be coming on to.
I am sorry that the noble Lord, Lord Thomas, has lost the word “taxation” in the consequential amendments order, but the world moves on. I think we are right to present the order that causes its loss.
Legal Services Act 2007 (Consequential Amendments) Order 2009
Considered in Grand Committee
Transfer of Functions of the Asylum and Immigration Tribunal Order 2009
Considered in Grand Committee
In moving this order, I shall speak also to the other two Motions standing in my name on the Order Paper.
The orders transfer the jurisdictions of the gambling appeals tribunal, claims management services tribunal, information tribunal, immigration services tribunal, adjudication panel for England, financial services and markets tribunal, pensions regulator tribunal, family health services appeal authority and the asylum and immigration tribunal into the unified tribunal structure created by the Tribunals, Courts and Enforcement Act 2007—the 2007 Act.
As noble Lords will recall, Sir Andrew Leggatt’s review, Tribunals for Users: One System, One Service, led to the creation by the Government of the Tribunals Service in 2006, and this was followed by the Tribunals, Courts and Enforcement Act 2007. The 2007 Act provided for the first-tier tribunal and upper tribunal, creating a unified appeal structure.
These orders form a further part of a series of tribunal transfers into the unified appeal structure under the 2007 Act, which commenced in November 2008. This has since been followed by subsequent transfer orders in 2009.
I shall deal, first, with the draft Transfer of Tribunal Functions Order 2009. It provides for the transfer of the gambling appeals tribunal, adjudication panel for England, claims management services tribunal and immigration services tribunal into the general regulatory chamber of the first-tier tribunal. This chamber commenced work on 1 September 2009 and the functions of these tribunals are already allocated under the existing chambers order.
The order also provides for the transfer of the information tribunal into the first-tier tribunal—general regulatory chamber—and the upper tribunal, with the question as to which one of them is to exercise the functions in a particular case being determined by or under the tribunal procedure rules. Appeals from all these jurisdictions will be heard in the administrative appeals chamber of the upper tribunal.
The jurisdiction of the family health services appeal authority is transferred to the first-tier tribunal—health, education and social care chamber. A separate order, which is subject to the negative resolution procedure, will amend the existing chambers order to assign the functions of this tribunal to the chamber.
The transfer of the family health services appeal authority, as well as the tribunals transferring into the general regulatory chamber, is to take effect on 18 January 2010.
The jurisdiction of the financial services and markets tribunal is transferred to the upper tribunal and the former tribunal is abolished. An amendment to the chambers order will provide for the former jurisdiction of the financial services and markets tribunal to be dealt with by the tax and chancery chamber of the upper tribunal.
The jurisdiction of the pensions regulator tribunal in Great Britain is transferred to the first-tier tribunal and the upper tribunal. Currently, that jurisdiction arises under the Pensions Act 2004, and amendments to that Act made by the order provide that those cases will be heard by default in the upper tribunal. An amendment to the chambers order will provide for those cases to be dealt with by the tax and chancery chamber of the upper tribunal.
The pensions regulator tribunal in Great Britain and the financial services and markets tribunal transfer into the unified structure with effect from 6 April 2010 to coincide with the start of the financial year. In all cases, the tribunals are abolished and the existing judges and members are transferred into the first-tier tribunal or upper tribunal as appropriate. This is essential for ensuring that a good service is maintained for users and existing specialist expertise is protected.
The amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009 adds the Asylum and Immigration Tribunal to the list of tribunals that are transferable into the unified structure created by the 2007 Act. The transfer of the Asylum and Immigration Tribunal was consulted on for 12 weeks from August 2008. The majority of consultation respondents were in favour of the transfer and, on 8 May 2009, it was announced that the tribunal would transfer as proposed.
The Transfer of Functions of the Asylum and Immigration Tribunal Order 2009 provides for the transfer of the Asylum and Immigration Tribunal into the first-tier tribunal. The transfer will take effect on 15 February 2010. Appeals from the immigration and asylum chamber of the first-tier tribunal will be heard in the upper tribunal. A separate order, which is subject to the negative resolution procedure, will amend the existing chambers order to establish an immigration and asylum chamber of the first-tier tribunal and an immigration and asylum chamber of the upper tribunal, and assign functions to the chambers as appropriate.
Again, in common with previous transfer orders, transitional provisions ensure that cases currently being heard by the transferring tribunals will not be adversely affected by the transfer. Directions and orders made by a transferring tribunal prior to each of these orders coming into force will continue in force as if they were directions or orders of the first-tier tribunal or upper tribunal as appropriate.
I turn to the detail of the orders. Articles 1, 2 and 3 of the draft Transfer of Tribunal Functions Order 2009 provides for the abolition and transfer of each tribunal into the unified structure on the dates outlined above. All the tribunals are transferring into chambers within the first-tier and upper tribunal that have already been created and are currently in operation. Article 4 of the order provides for existing judges and members of each tribunal to be transferred to hold offices in the first-tier tribunal and in the upper tribunal as appropriate. Article 5 provides for consequential amendments to, and repeals and revocations of, primary and secondary legislation, and transitional and saving provisions. These are set out in full in the schedules.
The Amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009 amends Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 by adding the Asylum and Immigration Tribunal to the list of tribunals that are transferable into the unified structure as created by the 2007 Act. Following on from that order, Article 2 of the draft Transfer of Functions of the Asylum and Immigration Tribunal Order 2009 transfers jurisdiction of that tribunal into the first-tier tribunal in its entirety and abolishes the Asylum and Immigration Tribunal.
Article 3 of the order provides for immigration judges of the Asylum and Immigration Tribunal to be transferred in as first-tier tribunal judges, and for designated immigration judges of the Asylum and Immigration Tribunal to be transferred in as first-tier tribunal judges and deputy judges of the upper tribunal. Senior immigration judges and non-legal members are transferred in as judges and members of the upper tribunal respectively.
Article 4 of the order provides for the current Asylum and Immigration Tribunal (Procedure) Rules 2005 and the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 to transfer to the immigration and asylum chamber of the first-tier tribunal and to have effect as if they were tribunal procedure rules upon commencement, as mentioned earlier. I confirm that the power to make procedure rules for this chamber will in future lie with the Tribunal Procedure Committee.
The Tribunal Procedure Committee was created under the Act and is chaired by a Lord Justice of Appeal—currently Lord Justice Elias—and includes representatives from a number of organisations, including the Administrative Justice & Tribunals Council, the Bar Pro Bono Unit and the Free Representation Unit. Noble Lords may be aware that we had originally proposed that the procedure rules for immigration and asylum should continue to be made by, and under the ownership of, the Lord Chancellor. However, following consultation on this we have decided that it is appropriate that this power should rest with the Tribunal Procedure Committee.
Article 5 of the order provides consequential amendments to, and repeals and revocations of, primary and secondary legislation, and transitional and saving provisions. These are set out in full in the schedules and include the revocation of Section 26(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which inserted Sections 103A to E into the Nationality, Immigration and Asylum Act 2002. Those sections of the Nationality, Immigration and Asylum Act 2002 established the higher court review and reconsideration process following an appeal to the Asylum and Immigration Tribunal.
The schedules also provide for the revocation of Part 2 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which established the higher court filter review and reconsideration process. This process enabled a disappointed party, following an appeal to the Asylum and Immigration Tribunal, to apply to the tribunal for reconsideration of its decision. If the tribunal decided not to reconsider its decision, the party could then go to the higher courts to seek an order for reconsideration. This will be replaced by the onward appeals process provided by Section 11 of the TCE Act, whereby initial appeals will be dealt with by the first-tier tribunal and the reconsideration process will be replaced by onward appeals to the upper tribunal. Those wishing to appeal to the upper tribunal will be required to seek permission to appeal from the first-tier tribunal in the first instance. Where the first-tier tribunal refuses to grant permission, a party may then apply for permission directly to the upper tribunal. We will, however, maintain the current bar on onward appeals against procedural, ancillary, preliminary or interlocutory decisions and decisions on bail applications. We will be bringing forward an excluded decisions order under Section 11(6) of the TCE Act for this purpose.
The Government are committed to ongoing transformation of our tribunals, placing the user at the heart of the service. The unified system will have greater flexibility in absorbing new work and responding to fluctuations. The order before the Committee today is another step in achieving this process. I commend the draft statutory instruments to the Committee.
My Lords, again I thank the noble Lord, Lord Tunnicliffe, for such a detailed explanation of these orders. I do not know whether he was using the same speech as was used in another place when these orders were taken—I am not even sure whether they have been taken in another place—but I noticed that he referred to us as “honourable Members” rather than “noble Lords”. So it possibly was lifted from another place.
We have dealt with a number of these transfer of tribunal function orders over the past few months, some of which were controversial—the noble Lord will remember when we were dealing with war pensions—and some of which were negative orders, as the noble Lord pointed out. Are these the last of the transfer of function orders to be brought forward under powers created by the Tribunals, Courts and Enforcement Act 2007? In dealing with that point, given the difficulties of dealing with secondary legislation, would it not have been possible for these to have been brought together into one order on which we could have had one simple debate and got it over at once?
That point is underlined by the amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009. Again, would it not have been possible to get all these matters right at once, rather than bringing forward an amendment as early as this? I hope the Minister will give an assurance that we will be able to deal with these matters in a more felicitous manner in the future. A raft of orders going through in this manner is not the easiest of way of dealing with the issue and, to some extent, brings the process of secondary legislation into disrepute. Having said that, we welcome the range of tribunals—the gambling appeals tribunal, the claims management services tribunal, the information tribunal, the immigration services tribunal, and so on—that are moving over and we wish them well under the new system.
I am grateful to the Minister for his statement. We have always supported the concept of the tribunals being unified into one body, and the division into a lower or first tier and an upper tier has been very acceptable. We welcome, in particular, the transfer of the Asylum and Immigration Tribunal into its own chamber of the first-tier tribunal. That is a very good step. One reason that we welcome it is that the previous tribunal had procedures which favoured the Home Office over the applicant. I noted that the Minister said that the applicant—I think that he meant the applicant—was to be placed at the centre of the new tribunal procedures. I hope that that is right and that his rights are considered.
Having regard to the unsatisfactory nature of the procedural rules in the old system, we also welcome the fact that the procedural rules are now to be put in the hands of the Tribunal Procedure Committee. When the consultation paper, Immigration Appeals: Fair Decisions; Faster Justice, was published by the UK Border Agency in 2008, it asked for comments on the rule-making powers for the new chamber. As a result of representations made to it, the border agency decided that the Lord Chancellor would no longer make and amend the procedure rules but that the Tribunal Procedure Committee would have that job.
The Tribunal Procedure Committee has consulted on draft rules which it has promulgated, and the Immigration Law Practitioners’ Association has responded in a document dated 23 November 2009. It raises certain very serious issues, and I should like to have a response one way or the other on some of them. It mentions reporting determinations, which I do not need to follow up on, but it also refers to evidence in the upper tribunal, the European Court of Justice and fast-track provisions. It makes some very worthy comments and I shall read the Government’s response to its submission in due course.
However, ILPA also states that, whereas previously there was a case management review hearing, nothing in the draft rules that are now promulgated maintains that hearing. It is a hearing of great advantage in determining what issues the tribunal has to determine. There has been no consultation on abandoning case management review hearings. There is undoubtedly concern that, for many years, applicants and appellants have faced endemic and systemic obstacles in persuading the Home Office to disclose its case on the relevant issues with sufficient clarity and sufficiently in advance. There are a number of aspects to that, but basically the problem is that presenting officers are told that they can change the basis of the Secretary of State’s decision, including raising new matters, without reference to the original decision-maker, so long as notice is given. That is to say that the applicant will receive reasons for the refusal of his application, but they can be changed by the Home Office when the matter goes on appeal.
The Home Office has said that, as a matter of policy, the “reasons for refusal” letter will not necessarily identify all matters that the Secretary of State for the home department proposes to raise at the hearing, and that new issues may well be raised much less than 48 hours before the hearing, including at the hearing itself. It is fundamental, and contrary to basic justice, that a person bringing an appeal against a decision based on particular reasons should know, and know plenty of time in advance, if those reasons are to be fiddled about with and changed to the advantage of the Home Office. If that system has become, as ILPA says, the practice in the old tribunal, I hope that when this comes before the first-tier or upper tribunals we will not have a similar system in operation, whereby reasons can be changed at any moment, even up to the hearing itself. That is one aspect that I would like some response to, not necessarily now but certainly in due course. I want to hear from the Home Office why it has had this practice in the past and whether it will persist with it in the future.
The other matter about which ILPA has considerable concern is that the draft practice directions that have been put forward do not include the provisions that exist with respect to children and vulnerable adult witnesses. Children involved in asylum appeals are likely to have experienced serious physical and psychological harm and ILPA considers that their treatment should be addressed by a further practice statement in the immigration and asylum chamber of both tribunals. This matter is the subject of a Private Member’s Bill coming before your Lordships shortly, dealing with the United Nations Convention on the Rights of the Child. It is very important when we are dealing with practice rules for a new tribunal and for a new procedure that the articles of the United Nations Convention on the Rights of the Child should be followed, so that, in all decisions affecting children, whether directly or indirectly, the tribunal must ensure that its procedures satisfy the highest standards in relation to children’s rights. We all know of the detention of children that is taking place in the Yarl’s Wood detention centre in asylum cases; that is highly unsatisfactory. Concern for children should apply to all judicial administrative hearings.
The new procedure rules, when they are produced, should be flexible in order to give positive effect to the rights of children in terms of their immediate and longer term best interests, principles of non-discrimination and effective participation rights. Such practice directions exist in the Family Division of the High Court and in the criminal courts, and it is essential that they apply in asylum and immigration cases. I hope the Minister will be able to give me some satisfaction, either now or at some later stage, that these principles will be followed in the practice rules put forward by the tribunal. Having said that, we do not object to these orders and will not oppose them.
My Lords, I apologise for using an inappropriate form of address. I shall scrutinise my speeches with even more care in the future to make sure that does not happen. I had the same thought as the noble Lord, Lord Henley—can there be any more of these orders? We are considering how best to transfer the remaining tribunals, many of which have few or no cases, and will do so when the benefits for users and the Tribunals Service can be gained. We have one further appeal to consider under the Transport Tribunal, which was not transferred, and I will consider when to bring this forward. Are they the last? I think the answer is that they are almost the last. I share the noble Lord’s reaction.
Would it not have been possible to have put all the transfers into one order? A large number of tribunals have been transferred. Perhaps it is slightly unfair to call it a messy system, but this Act addressed a very diverse system, and it has been appropriate to do this in phases, with more than one order, to ensure that the system could properly support the transfers.
The points raised by the noble Lord, Lord Thomas, seem to be generally welcoming. I did say the systems were designed to bring the applicant to the centre of the system. As he pointed out, we responded to consultation and transferred the rule-making process from the Lord Chancellor to the Procedure Committee. I think the noble Lord was responding, in a sense, to a Procedure Committee consultation of 21 November, and I acknowledge the importance of the points he made. Equally, given their importance, it would be much more satisfactory if I were to respond to them in writing, which would give officials and Ministers time to consider his points in some depth.
Transfer of Tribunal Functions Order 2009
Considered in Grand Committee
Amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009.
Relevant Document: 23rd Report, Session 2009-09, from the Joint Committee on Statutory Instruments.
Census (England and Wales) Order 2009
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Census (England and Wales) Order 2009.
Relevant Documents: 23rd Report, Session 2008-09, from the Joint Committee on Statutory Instruments and 29th Report, Session 2008-9, from the Merits Committee.
My Lords, this draft Order in Council gives effect to the proposals of the United Kingdom Statistics Authority for the ONS—the Office for National Statistics—to conduct a census throughout England and Wales in 2011. These proposals were set out in the Government’s White Paper, Helping to Shape Tomorrow, published in December 2008.
The census is the most important source of population statistics, and is the only source of statistics for both small areas and minority population groups. For over 200 years it has provided the underlying information which successive Governments have used to devise policies, take decisions and deliver services.
Billions of pounds of public funding and resources are allocated to local and health authorities each year using census-based information.
Since the 2001 census, a new independent body that reports directly to Parliament, the UK Statistics Authority, has been created. The ONS, the executive office of the authority, will lead on the census in 2011. I can therefore present the census order today confident that its content has been produced not by government but by the ONS, following extensive consultation with a wide range of stakeholders and with rigorous question testing. The independence of the census is essential if we are to build public trust in official statistics.
I will now take you through the detail briefly. Under the Census Act 1920, an Order in Council is necessary to prescribe the date of the census, the people to be counted, the people responsible for making a census return, and the information to be given in the census returns.
The date of the census will be 27 March 2011. Everyone will be recorded at the place where they are usually resident. Household members who are temporarily absent on census night also need to be counted. Some additional information will be collected on household visitors, which is essential if the ONS is to ensure that visitors are properly counted at their usual residence. The person responsible for making a census return is to be the householder or joint householder, but any individual aged 16 or over may make a separate individual return. The information to be given in the census returns is covered by Article 6 of the order and is set out in Schedules 2 and 3. Regulations, to be laid before the House in spring 2010, will set out the detailed content of the census and will contain copies of the various questionnaires.
On the information to be given in the returns, the ONS has carried out extensive consultations with central and local government, including members of all-party parliamentary groups, with community groups, with businesses, with academia, with the third sector and, most importantly, with the general public.
The ONS has also carried out in-depth question testing between 2003 and 2009, building on the valuable experiences and the lessons learnt from previous censuses. This is to ensure that the proposed questions in the 2011 census are justified, both in terms of the need for the information itself and of their acceptability to the public.
Under the terms of the Census Act 1920, some items—those in italics in the draft order—may only be included in the census if they are approved by an affirmative resolution. It is these that we are debating today. Only a few are new to the census, and I will now deal with these specifically.
First, people born outside the UK will be asked about their date of entry into the country and, for those who arrived in the past year, the length of their intended stay. There is an increasing need for more accurate and reliable statistics on migration in general, particularly on short-term migration. The census will therefore provide information on shorter-term migrants and temporary foreign workers, and help to give a better understanding of their needs and their impact on local labour markets and demand for local services.
Secondly, people will be asked to state the country of any passport that they hold. Government departments and the European Union require statistical data on the citizenship of the population. The question asks about passports rather than about citizenship. Asking directly about a person’s citizenship confuses respondents, who may mistake the question for one of national identity. People give much more consistent answers to a question about passports, with the result being easier to use to produce the necessary citizenship-related information.
Thirdly, people will be asked to register another address where they actually spend time. Such information will be particularly useful to local authorities which need to know the number of people who stay within their area and use local services during the week but who have a usual residence elsewhere.
Fourthly, people will record their national identity in addition to their ethnicity. Noble Lords will be aware of the amendment that was voted down in the other place to add a tick-box for “Cornish” in the national identity question.
Fifthly, people will be asked about their main language, allowing central and local government better to target language support and resources to those sections of society unable properly to access public services due to language barriers.
People whose main language is not English will be asked to state their proficiency in speaking English, with an additional, similar question about proficiency in Welsh in Wales. This will give a greater insight into the need for language training and community work to combat any possible discrimination and social disadvantage suffered by people whose language skills could be improved.
All other items requiring affirmative resolution cover topics that were included in the 2001 census, but I shall refer specifically to two where there have been some slight changes to the information to be collected. The question asking people to assess their general health during the past 12 months has now been expanded to a five-point scale ranging from “very good” to “very bad”. This information is for the planning of health policy and the provision of services, particularly for the elderly. The question on qualifications has a new tick-box to indicate any foreign qualifications held.
Other questions deserve mention either because the proposed wording has been revised since the last census or because particular interest has been shown by noble Lords. Following the Civil Partnership Act 2004, the traditional census question on marital status has been expanded to include response categories for civil partnership status.
Noble Lords may be aware of lobbying campaigns by Kashmiri, Sikh and Cornish groups, for example, on the ethnicity question. It has not been possible to include a tick-box for every ethnic group category requested. Each request was compared against a detailed set of prioritisation measures before the final recommendation was made. This identified strongest need for additional response categories for “Gypsy and Irish Traveller” and “Arab”, which have therefore been included for the 2011 census.
People can record their ethnicity in whichever way they choose by writing this in the write-in spaces provided. All such responses will be counted. In the case of Sikhs, there is the additional option of ticking the specific “Sikh” box in the religion question. The Government are satisfied that the census is compliant with national legislation on race relations and any international conventions on the protection of national minorities.
I shall refer briefly and specifically to the proposed question on religion. A number of noble Lords have made representations to the House during previous debates and directly to the ONS on the proposed question. In particular, concerns have been expressed that the question on religion is leading and overstates the extent of religion within the country. The proposed question measures an affiliation with a religion and not belief or practice. It provides information which can be used together with responses to the ethnicity question to monitor equality and discrimination by identifying minority ethnic subgroups that may otherwise be missed, particularly those originating from the Indian subcontinent, in terms of their religion.
As a result of concerns expressed, the ONS tested alternative questions on religion. The testing concluded that no single question on religion can be worded in such a way as to capture suitably information on religious belief or practice and to justify losing comparability with the 2001 census. There is a strong user requirement for comparability with the data from the 2001 census. The proposed question on religion therefore remains unchanged, and remains the only question in the census for which a response is voluntary.
There is a new question asking for the number of rooms designed for use as bedrooms. This will measure overcrowding and assist in the planning of housing investment and the addressing of social and economic need. There is also a new question asking about the type of fuel used for central heating, to provide data on basic housing standards and fuel poverty and deprivation.
Despite some strong user demand for an income question, testing by ONS revealed that including a question on one’s income leads to a significant drop in response rates. There were also concerns over the quality and accuracy of the income data collected as part of the test.
There was a strong requirement for information on sexual identity in order to monitor equality. After investigation, the ONS recommends that a compulsory census is not a suitable means to collect information on sexual identity, again because of the quality of the resulting data, and including the question is likely to reduce the overall response to the census. Although the ONS does not recommend that a question on income or sexual identity be asked on the census, it recognises the user demand for this information and is taking steps to provide some data through other sources.
I shall say a few words about security and confidentiality. The ONS has an excellent track record when it comes to security. Additional measures are being instigated and all internal and external threats that could affect the confidentiality, integrity and availability of census information are being carefully managed. The information will be protected by strong physical and electronic data security arrangements.
Census information will be used only for statistical purposes, and ONS will not release any personal-level information. Noble Lords will know that it is a criminal offence to unlawfully pass on personal census data. Census information is exempt from disclosure under the Freedom of Information Act and the Data Protection Act.
The Government’s policy is that data from questionnaires should be kept secure and closed to the public for the next 100 years, with the paper questionnaires being destroyed in a controlled and secure manner. The resulting electronic data will be registered under the Data Protection Act 1998, and the arrangements for handling the information during processing are to be the subject of an independent security review.
I turn to the cost of the census. The 2011 census in England and Wales is expected to cost around £480 million over the 10-year period. In its report on the 2001 census, the Treasury Select Committee recommended that any future census should be justified in cost-benefit terms. The ONS business plan to the Treasury for the 2011 census clearly demonstrated the unique value of the census and that the benefits of having the information far outweigh the costs of its collection. The identified cost benefits exceed £700 million, compared to a cost of £480 million.
More than £1 trillion is allocated to local authorities and to NHS primary care trusts in the 10 years between each census, on the basis of census information. The census cost equates to just 87p a year per person, which we believe demonstrates excellent value for money. The per capita costs in the UK are less than those for many other European countries that carry out similar censuses, and considerably less than the costs in America.
In summary, this census will meet crucial requirements for the statistical information that Governments and others cannot do without. The burden on respondents will be kept to a minimum and the questions have been fully tested and found acceptable and compatible with both UK and EU legislation. I am confident that we have the right census package for helping to shape tomorrow. I therefore commend the draft order to the Grand Committee. I beg to move.
I thank the Minister for that thorough presentation of the detail of the order before us. I can keep my remarks brief in response as many of the issues were covered this week, as I am sure the Minister is aware, in the debate on this issue that took place in the First Delegated Legislation Committee in another place. That debate raised a number of the issues which we would otherwise have wanted to explore today, but I do not wish to detain the Grand Committee too much.
A number of questions were asked by my honourable friend Nick Hurd in the First Delegated Legislation Committee, but I wish to take this last opportunity to scrutinise the order and to elicit responses from the Minister, if possible, to his fair and reasonable questions. I should like to go over again the questions on which we seek clarification.
The first question relates to costs, to which the Minister has just referred. The costs of the census in 2001 were £214 million; it is projected that the costs will rise to £482 million in 2011. Clearly this increase in costs represents a significant increase over the rate of inflation. As not many more homes will be covered, and given that the public finances are in a state of distress, would it not be appropriate to revisit that figure to see whether it can be reduced? However, before pursuing that line, can the Minister respond to the specific question of whether the increase in costs can be explained?
The second question asked by my honourable friend Nick Hurd in the Committee in another place concerned the assumptions used in awarding the contract to the American company Lockheed Martin. What assumptions were made about the response rate for the 2011 census? Some data show that the census response rate in 1991 was 96 per cent and that in 2001 it had fallen to 93.9 per cent. An essential critique of the order before us is that, by lengthening the form and increasing the number of questions and their potential complexity, the level of response might be lower, and presumably when the contract was awarded to Lockheed Martin an assumption was made. Could that assumption be put on record?
During the previous census there were seven times more calls than expected to the helpline which had been set up to assist people in completing the form—2.6 million in total. Given that the new census form is longer and more complex, what assumption has been made about the number of calls that might be made to the call centre, and what steps are to be taken to ensure that the extraordinary delays which people experienced previously are not experienced this time round?
This will be effectively the first census carried out during the broadband era, if one might loosely describe it as such, and a lot of people will use computers to submit their response. There was e-mail help and technical support in 2001 but that system, too, was inundated. Can the Minister say what the response is likely to be in 2011 and what provisions have been made to ensure that people receive the help that they need with the forms to ensure as high a completion rate as possible?
The next question relates to the overall costs of those two factors, and this was one of the assumptions to which I should be very interested to hear the answer. What assumption is being made about the number of respondents who will complete the form online? That is an interesting point because my intuitive judgment is that the figure will be significantly higher than was the case in 2001. If that is so, again, intuitively one would expect that if more people complete the form online, there will be a need for fewer enumerators to knock on doors and fewer pieces of paper to be printed and processed, and that should surely reduce and not lead to a doubling of the costs.
Fourthly, my honourable friend Nick Hurd asked whether the Minister could publish the response rates to the 2009 rehearsals which the ONS and the Government conducted in a number of areas. This would place important findings in the public domain and would, had they been available, have informed the debate and perhaps allayed some unnecessary fears. Some have suggested that if the Government had found the response rates and the responses during the 2009 rehearsals helpful to their case, they might have deployed information received from them in support of these orders. Therefore, the fact that no information has been made available to the House on those rehearsals raises some concerns about confidence.
Fifthly, can the Minister tell the Committee roughly what proportion of responses will be extrapolated from fields that have been left blank? I understand that statistically what happens is as follows: if all 36 questions on the form have not been responded to—if, for example, five have not been answered—the enumerator extrapolates or guesses what the response would have been. Clearly, given that the Government are placing a great deal of store on the accuracy of data, if a significant amount of the data is the result of guesswork, that will raise a serious concern. Will we be guessing 20, 30 or 40 per cent of the answers? If, for example, as we were told, more than £1 trillion of taxpayers’ money is to be directed by these data to health and local authority spend alone over the next 10 years, can we be confident that the data informing these choices are correct? Is it possible that the cost arising from misdirecting and misallocating funds could be much higher than the cost of the exercise itself?
Does the Minister agree with some of the expert opinions that have been expressed about the complexity of the data? Is she aware of the remarks of Professor Rees, a leading UK statistician, to the Public Accounts Committee on 19 November, when he said that as you expand the number of questions there must be a deterrent effect on response? Has she noted those comments? Could she respond to them?
Is the Minister aware of remarks that were made by Sir John Kingman, who was chairman of the Statistics Commission when the 2001 census was undertaken? He wrote to my honourable friend Nick Hurd on 28 October 2009, saying, in commenting on the nature of the census preparations for 2011:
“It all happens with the best of intentions. The ONS consults government departments, local authorities and a variety of public and private organisations hungry for information on all sorts of matters. The result however is that the unfortunate citizen is presented with an array of questions which few will have the time or inclination to take seriously. Some will put in frivolous answers”—
we have the famous example of the Jedi faith, apparently the fourth largest religious group in the United Kingdom, which came out of the 2001 census—
“while others will just put the form behind the clock on the mantelpiece”,
and forget it. He continues:
“Yet the statisticians take the results seriously, and provide the interested organisations with statistics with little indication of the inevitable margin of error. In 2001 the National Statistician even announced an exact figure for the total population, a figure which later proved to be greatly in error. You will recall the problems with the population count in London and Manchester. If the Census cannot accurately count the population, how reliable can it be on matters such as number of bedrooms?”.
In the previous census, 38 people were prosecuted for non-completion of forms, but 7 per cent of the households that the forms went to did not respond. What assumptions has the Minister made about the number of people who are likely to be prosecuted this time around, especially as the powers that were referred to are rather draconian? The ONS has asserted, and this was cited by my honourable friend Nick Hurd, that it will be,
“employing appropriately trained specialist field staff, dedicated solely to following-up cases of reported non-compliance and conducting the necessary formal Interviews Under Caution”.
That is pretty heavy stuff, as is a £1,000 fine. It would be useful to know what assumptions have been made.
What steps have been taken to stop citizens falling victim to phishing attacks? Apparently this is an IT term, although I was not familiar with it. It relates to these spam e-mails that we receive purporting to be from a bank, a building society or the Inland Revenue service. What has the ONS done to avoid such attacks from fraudsters?
How many census enumerators will be hired for the 2011 census? How many of them will be trained in the issue of cautions under the Police and Criminal Evidence Act in order to chase non-compliance? As was stated earlier, they are going to have the power to formally interview under caution. If those data are to be used afterwards in a court of law, they would need to follow precise guidelines. If the person is being questioned under caution, would they not also have the right to some legal representation? They may be vulnerable people who would be intimidated not only by the form and its length but by overzealous enumerators coming down to ask why they had not responded.
I turn finally to overcrowding and bedrooms, which has excited great interest. I have even heard suggestions from student groups that census parties will be held on 27 March, where tens, if not hundreds, of people will be invited round to certain houses with one or two bedrooms and will all be listed, complete with their names and dates of birth, as being at that address at that time. That seems to us a step too far—a level of meddling way beyond what is necessary.
Will the Minister give us a specific example of where knowing the sex, date of birth and name of the person who was staying in a property overnight on 27 to 28 March would be used to inform an aspect of government policy? In other words, when would it be useful to ask that question? When, without an answer to it, would the Government not be able to know X or Y? I am sure that it is a fairly easy question and that the Minister will be able to give many examples, but it represents a level of infringement of privacy that many people of a liberal disposition would find very uncomfortable.
I am grateful to the Committee for bearing with me while I have put these questions again. I hope that the Minister can offer reassurance.
My Lords, I thank the Minister for giving us a clear exposition of the importance of the census as an indicator of factual information that is utterly vital to determining, among other things, the distribution of public expenditure. I also suggest that this is quite an important debate, because, as the noble Lord, Lord Bates, said, it is the last public opportunity for consideration of these issues before the process goes into its concluding stages. He raised many points which I shall largely take as put so that the Minister can focus on them, but I have a number of questions and points of my own.
The consultation to which the Minister referred has been extensive, which is entirely appropriate, and I am glad that it has been conducted in the way that it has. It would be of interest to know whether the stakeholders to whom she referred, particularly the institutional stakeholders, had any comments to make about the costs. I was slightly surprised to read in the Explanatory Notes that no impact assessment had been produced for the order since no impact on the private or voluntary sector was foreseen. I am surprised not least because of the responsibility of those in communal establishments for providing information or for ensuring that information is provided. That includes hospitals, care homes and prisons—although they are not private institutions. There are cost implications for those complying with it. I accept that, for individuals, half an hour would probably be a sufficient allocation of time to reply even to the enlarged questionnaire.
The second broad policy question which I would like to raise—I am not aware that it has been raised in earlier debates—concerns the frequency with which the census is held in this country. There has been a 10-year census for a long time, I think, since it was introduced in 1801. However, I have noticed that a substantial number of countries, including Australia, Canada, Eire and New Zealand, conduct a census every five years. I do not know what extra cost that involves, or indeed whether some of the costs in the 10-year census might be obviated by having one more frequently, but it is fair to say that we are living in a very rapidly changing society. To some extent, that is reflected in the enlargement of the questionnaire to four pages from three—a 25 per cent increase—in the 10-year census. If we are making judgments about the statistics which it will yield, perhaps we should think about whether a census ought to be conducted within a shorter timeframe in future, so that the responses of Government to many of the issues to which the Minister referred could be more immediate and less “after the event”.
The cost, which has been extensively referred to, is not inconsiderable. The Minister referred to the cost benefit, but £482 million is a very substantial sum. I would be grateful if the Minister would say a little more about the extent to which competition has been, and can yet be, involved in conducting the necessary preparations for this census. The competitiveness of contractual offers should be borne in mind, as well as the robustness of the testing of the possible conduct of the individual parts of the exercise. The census has produced a highly valued series of statistics historically, and this country has a good record on that which is generally recognised. It would not be proper to imply that I am seeking in some way to cut corners. Nevertheless, with very substantial contracts of this kind, it would be helpful to know about the process—who conducted it and how it was scrutinised—not necessarily because changes will be made on this occasion, but perhaps if they have been made in the process which has run in the 10 years since the last census.
As far as the range of questions is concerned, I have no great problem with the enlargement of the number of questions in principle because, as I have said, there have been considerable changes in the mobility of our society, in the ownership of second homes, and in the movements into and out of this country. The only question about that latter point is whether the personal information being sought in respect of visitors is really required or whether it is unduly intrusive. I have no doubt that the Minister will have a view about that.
Many of the questions seem a little arbitrary, but no doubt they were thrown up by the consultations. For example, it is interesting that a question about the ownership of cars is there but not one about the ownership of IT equipment, which has expanded rapidly in the past 10 years and has become a principal mode of communication. How has this come about? How were these decisions taken? I am sure that there is a natural and proper reluctance to enlarge the questions, partly because the bigger they are the less incentive there is to make a complete return, or indeed to make a return at all.
There are some other new questions—for example, in respect of ethnicity. There is the category of “Arab” but no category of “Arab/White” or any kind of mixture. That, again, seems slightly arbitrary. Furthermore, as this country becomes more and more ethnically integrated, it raises a question about what it is proper to declare. I have a son-in-law who is half Bengali and half Irish; he lives in this country and will be expected to respond to the census. I am not entirely sure how he should answer these questions. When it comes to the point, although they are a little young to do it this time around, I wonder what my grandchildren will feel is an appropriate answer. These questions seem to be becoming a little sensitive. Although I understand the motivation to take account of the cultural backgrounds and interests of those sectors, we should reflect on this issue from now on because the younger generation is considerably more mixed ethnically than my generation and the one that followed it.
The question about a person’s workplace address is open to subjective questioning. Individuals will have to assess what is their central workplace. Some people do a number of different jobs; some people may never attend the headquarters of the business to which they are attached; some people, such as contracted plumbers, move around all the time; others, of course, can conduct a great deal of their work from home but also work elsewhere. I am not sure how revelatory that question is or could be.
The principal questions that I have in mind are, admittedly, of a general and broad nature. However, they raise issues about how the census is compiled. The Minister has helpfully indicated broad categories of people who were consulted, but some of the issues about national identity and whether you speak English very well, well, not very well or badly are entirely subjective. Some people who have spoken nothing but English all their lives might be regarded by others as speaking English very badly, but not necessarily by themselves.
Although I can see the point, the answers to these questions will not necessarily be entirely convincing. There has to be a certain awareness of the breadth of the questions and a certain amount of self perception is required to answer them in statistically reliable ways. I thank the Minister for her introductory remarks.
I am sorry I was not here to listen to the first few paragraphs of the opening remarks of the noble Baroness. I was very interested in the remarks I did hear and the speeches of both noble Lords opposite. I suppose I should be proud to be the only representative of the Back-Benchers in the House of Lords to attend this erudite debate.
I do not have too much to say. but I wish to raise the issue of confidentiality and the Freedom of Information Act. The noble Baroness assured us that the security could not be breached, which one has to accept. However, I remember that during the problems—if I can call them that—in the House of Commons over expenses, the Members of the House were assured that they were covered by privilege. However, it turned out that they were not covered by privilege; the information they were given about the security of the details, which they had given in confidence and expected would not be revealed to the general public, proved to be completely and utterly wrong and has caused certain problems. I hope the noble Baroness can reinforce the assurance she has given this afternoon that the information is definitely confidential and cannot be released to anyone.
My second point is on ethnicity.
Before the noble Lord moves on, is he interested in finding out a little more about Lockheed Martin, an issue raised by the noble Lord, Lord Bates, and, in particular, what constraints there are on the information to which Lockheed Martin will have access? What will restrain it from losing, copying or otherwise mishandling the census data, bearing in mind that some may consider it is bound by the Patriot Act in the United States?
That is a very good intervention and very helpful. We need such assurances because so much information now is put on disks or whatever other storage capacity is available, such as memory sticks. Bearing in mind that some very important information regarding people’s taxation has been lost, we are entitled to know what security is available and whether a private firm is as secure as I hope our own departments are. We need those important assurances.
I will move on to ethnicity. The noble Lord, Lord Maclennan, raised this, and it was right and proper that he did. We are becoming obsessed with two things: ethnicity and sex, which I will come to in a moment.
The drive in this country should be for unity; instead of multiculturalism, we want integration. We want people to be happy that they are in Britain. We want people to feel British, and to feel that they belong here, rather than anywhere else. They should feel that they are a part of us, no matter what their colour, creed, religion, or anything else. I feel strongly that the motivation of Government, and indeed of Parliament, should be towards integration. I am not at all sure that asking people to define their ethnicity does that.
My wife and I had a recent experience with our local authority in Reading—not about the census, but about the electoral registration form. We decided to test the market, so to speak, to see what would happen. I put my nationality down on the form as Welsh, and my wife said she wanted me to put hers down as English. Lo and behold, when the register was proclaimed and I got the form for next year, there it was. My nationality—Welsh—was fine. I could be Welsh, but my wife could not be English. That was very worrying. The local authority would not accept “English”, so it put “England”. This, of course, was a ridiculous answer to the question of nationality, because there is no such nationality as England. For three years, I have been trying to get the local authority in Reading to accept English as a nationality. I still have not succeeded—they keep blaming it on a computer. I do not know whether English is to be accepted as a nationality by all authorities now, bearing in mind that it is on the census as such, and I would be interested if the Minister could comment on that. Perhaps it is a little unfair to ask her to do so, but nevertheless if she could I would be most obliged. My wife is very offended, and I am sure there are many other people who are offended that they cannot be English. As a Welshman, I am standing up this afternoon for the English.
I am extremely grateful to the noble Lord, Lord Stoddart, for allowing me to intrude again. It is just conceivable that there are people, and I would certainly count myself one, who regard themselves as glad to be Scottish, British, and European. I do not expect the noble Lord to be enthusiastic about that proposition, but it might be of interest to have such a multiple identity disclosed in the census returns.
I have to tell the noble Lord, Lord Maclennan, that he is okay. The electoral registration officer will accept that he is Scottish. The trouble is that they will not accept that my wife is English, and she does not like it. There are a lot of other people around of the same opinion.
As for being European, I consider myself to be part of the continent of Europe—we are, after all, on the same continental shelf, which I am very happy about. However, I do not want be governed by an organisation called the European Union, which is completely undemocratic—I shall not go into its problems—and I am quite happy to be Welsh, British and European all at the same time. We should move towards an integrated community, not a split one.
I am glad that the question on income has been dropped. It is clear that there was a lot of discussion. I think that the Government perhaps favoured our being forced to answer questions on it, which would have been very difficult. A lot of income comes from the black economy. You cannot really expect people to put, “This is my income from work but then, on the other hand, I do some other jobs on the side and this is how much I earn”. I am not sure, therefore, that one would get an accurate view of people’s incomes. People have all sorts of income, some of which they forget or do not want to put on a tax return. They will not fill in a census which, although they are told it is confidential, may lead to the taxman getting hold of some income that they have not declared to him. I am glad also that the question on sexual proclivities has been dropped, because there are so many of them. It would require a very long list of questions to get a true answer.
However, I am concerned that these intrusive questions should not be put about by other means. While they will not be included in the census, it is clear that there is curiosity among the Government about people’s incomes and how they behave themselves sexually. I would like the Minister to give me the relevant assurances.
My final point echoes one raised by the noble Lord, Lord Maclennan. Our population since the end of World War II has risen by more than 15 million, much of it taking place in the past five years. Consideration should be given to taking censuses at shorter intervals. It might not be as dear as one would think, because a lot of surveys about various things are being done up and down the country in the interim, and they cost money, too. While we might on the one hand incur additional costs because the census would be conducted at shorter intervals, we could save money on the other because there would be less need for individual surveys on various items. In the hope of one or two assurances from the Minister, I shall sit down.
I thank noble Lords for a robust, vigorous and detailed discussion. That was as it should be because, as the noble Lord, Lord Maclennan, said, this is an extremely important subject. Like the noble Lord, Lord Stoddart, I am a little disappointed that more Members of the House were not interested in it, because, as the noble Lord, Lord Bates, said, the census will influence not millions or billions but trillions of pounds of spending by the public sector during the next 10 to 12 years. So it is big stuff.
I start by saying that I have good news for Lady Stoddart, which is that she will be able to put “English” as her nationality on the census. I hope the noble Lord will be able to give her that news. I ask noble Lords for their patience with my replies because there is quite a bit to get through.
The noble Lord, Lord Bates, asked about costs and whether there was a possibility of a reduction in them in the light of the economic climate that we are experiencing. Costs have been drawn very tightly by the ONS and its contractual programme. It has already spent 20 per cent of that sum of £480 million, 50 per cent is further committed to fixed-price contracts and any further reduction would impact on the quality of the census population estimates. I go back to the point, which we have all appreciated, that the quality of these statistics will influence an enormous amount of spending over the next decade. Therefore, the quality has got to be right. We must not skimp or cut corners, as the noble Lord, Lord Maclennan, put it, on quality—it is the main point that we have to keep our eye on.
The short answer is that the main reasons for the increase are the extra £150 million due to inflation, the £25 million due to growth on numbers of people or households, the £25 million for the extra page of questions for each person, the extra £45 million for improvements in field systems and processors—those actually working on the 27th, making sure that the hard-to-reach people are visited and that censuses are delivered and sent back—and the extra £20 million for improved help facilities, publicity, community and local authority liaison, with a variety of other smaller changes and improvements. I hope that answers more fully the noble Lord’s question.
The noble Lord, Lord Bates, also asked about the justification for the cost as a general question. The full 2011 census business case has been produced, which will fully justify the census investment. For a subset of the different uses, the benefit has been assessed as exceeding £700 million. This is thought to be a significant underestimate of the total benefits.
The noble Lord, Lord Bates, talked about the assumptions that were made about the level of response when awarding the contract to Lockheed Martin. We believe that we will get a 94 per cent overall response, and that was the assumption when awarding that contract.
The noble Lords, Lord Bates, Lord Maclennan and Lord Stoddart, raised the issue of security and the awarding of the contract. The contract for the census was awarded to Lockheed Martin UK as it offered the best value for money in an open-procurement scheme carried out under European Union law and EU procurement directive. The company has a good track record on census work, having supported the 2001 UK census. All persons acting in any capacity for the UK Statistics Authority in the conduct of the census will be covered by the same stringent confidentiality restrictions as are applied to members of the Office for National Statistics themselves. There are severe penalties, as the noble Lord, Lord Bates, was saying, for breaches of census confidentiality laws. No Lockheed Martin employees will have access to the data.
I am happy to write to the noble Lord about this, but it is not our belief that the ONS could tender for the sort of work that Lockheed Martin will do. I shall go into that a little more. Lockheed Martin UK is the prime contractor. It has engaged a number of specialist UK and EU subcontractors for the different components of the contract. The main ones are Polestar for the printing—so the ONS would not necessarily be appropriate there—UK Data Capture for the scanning and the data processing, Cable and Wireless for the communications and the data centre, bss for the contact centre, Logica and Steria. I hope that answers the noble Lord’s question.
The ONS has put in place additional contractual and operational arrangements in this contract to ensure that the US authorities could not gain access to census data through, for instance, the Patriot Act. These arrangements include that all data processing will be carried out in the UK, no data will leave or be held at any point outside the UK, all data are the property of the ONS and only UK/EU-owned companies will have access to the personal census data. The only people to have full access to the full census data set in the operational data centre will be the ONS staff.
The noble Lord, Lord Bates, asked about response rates for the recent census rehearsal. The responses are still coming in so the number is increasing, but at the moment they are at around 35 per cent. This is lower than hoped, although we have to remember that this, unlike the census, was a voluntary exercise. The ONS anticipated a much lower response than we will get in 2011, because a compulsory response will be much higher. After a promising start with response rates ahead of expectations, returns are now levelling off and lag behind expected levels. But the rehearsal is voluntary, and known hard-to-reach areas were selected for the rehearsal, which also tips the result. The exercise was not spread across, as it were; those areas were selected for the rehearsal as being hard to reach.
Follow-up activities have concluded with census collectors calling on households that have not responded in order to obtain a response, and this follow-up has increased the response rate considerably. A number of measures have been taken to rehearse the actions that we will take in 2011 to increase response rates, and research is now under way to discover why response rates are lower than expected.
Another question asked by the noble Lord, Lord Bates, was how many people are expected to respond online. The current assumption is that around 25 per cent are expected to do so. Perhaps I may give noble Lords a few comparisons. Canada achieved 18 per cent in 2006. Scotland offered online completion for its rehearsal in March 2009 and had an 11 per cent internet response rate without any real publicity campaign advertising that the internet was available. However, in the England and Wales rehearsal, only around 9 per cent of returned responses have been made via the internet. Again, there was little publicity about the internet option. ONS is building the system to cope with 6 million returns. If more people try to use the online system at once than the system can cope with, new users will be asked to try again later. This is called “graceful deferral”. However, the answer to the noble Lord’s original question about assumptions is 25 per cent.
The noble Lord, Lord Bates, also asked how many of the data are estimated—he rather bated me by using the word “guessed”—as opposed to actual. He may be thinking of a figure that was quoted during a recent Public Accounts Select Committee by Professor Rees. The professor now accepts that the figure was wrong and has requested that a change be made to the Public Accounts Select Committee transcript. Six per cent of people did not return a census questionnaire in 2001. On top of this, 4 per cent of census data were missing from the returned forms and had to be imputed. This means that 10 per cent of the total census data set had to be imputed, not 40 per cent. Therefore, we are saying that the estimate was 10 per cent in the 2001 census, not 40 per cent.
The noble Lord, Lord Bates, asked about published response rates from the rehearsal. At present—they are still coming in—the figure is 35 per cent. He also asked about the assumptions made about calls to the helpline and what steps are being taken. Many steps have been taken to reduce the likelihood of a crisis of calls to the contact centre. In addition, there will be a self-help website, reducing the burden, we hope, on the telephone contact centre. So we are hoping to learn from the lesson of 2001.
The noble Lord talked about the complexity of the forms and asked whether that reduced the response rate. He asked why, for example, the questionnaire was so long. Widespread consultation by the ONS shows that there is a demand for far more questions than could possibly be accommodated. As the noble Lord, Lord Maclennan, said, the number of pages per person has gone up from three to four, but this is due partly to making the layout of the pages clearer. The number of columns has been reduced from three to two, which makes the form easier to complete. The 32-page booklet for households contains forms for six individuals. In 2001, the booklet had forms for five individuals. Therefore, fewer households will need to request further forms from the ONS.
The issue of visitors has also been raised. Visitors had always previously been counted but not in 2001; before 2001, full details were collected. In 2011, only a small set of questions will be included in order to reduce the burden on the public. We are asking the question about visitors to enable an accurate count. We believe there was an undercounting in 2001 because the fact that people were visiting homes other than their own was not taken into account. We have learnt this key lesson from 2001; the question about visitors on the night is important.
The noble Lord, Lord Bates, referred to the 2001 census not accurately counting the population and asked how this would be dealt with in 2011. There are more questions about visitors, residents, second addresses and so on, which will enable a better, more accurate measurement, and there will be a much better follow-up to non-response. We are focusing the enumerators on those hard-to-count areas. They will physically go to people in real time and say, “Have you any problems? Are you able to fill in your form? How can we help?” That will, we hope, institute a far better follow-up than in 2001. Local liaison will identify hard-to-count areas and we will increase the hours spent on follow-up to non-responding households. In that way, we will develop an improved register.
The noble Lord, Lord Bates, referred to 7 per cent of respondents not completing a form but only a few being prosecuted, and asked what steps we are taking to improve the situation. There will be a dedicated non-compliance staff to strengthen the process. In 2001, it was part of the regular field staff’s responsibility to caution people, but this time there will be a dedicated non-compliance staff and prosecutions will be pursued in cases of persistent refusal to respond.
The noble Lord said that the 2001 e-mail support was inundated and asked how provisions could be made to improve it in 2011. Online help is available and is expected to reduce demand on public help facilities. E-mail queries will not be supported in 2011. I shall write to the noble Lord on that. I am confused by that answer and he may well be too. I shall make sure that he has a written answer.
On the question of what steps ONS has taken to avoid spam e-mails, ONS will never request information from the public via e-mail and we will make this publicly known. I was asked how many enumerators we envisage for 2011; the answer is 35,000. I do not have at hand the numbers who will have the right to caution, but there will be a dedicated team within those enumerators with that right.
Why do we ask the question about the number of bedrooms? It is to provide a more accurate and comparable measure of overcrowding. The two older measures of overcrowding were the space standard and the rooms standard. These can now be expanded to include the bedroom standard. This is explained in the Government paper Tackling overcrowding in England: An action plan, published by CLG in December 2007.
The charity Shelter has urged the Government to use the bedroom standard to measure overcrowding. Overcrowding, as noble Lords will know, is an indicator of housing deprivation. Living in overcrowded conditions is associated with adverse personal and social health effects. Information will be essential for taking forward work on decent homes. There is also a direct link with the allocation of improvement grants for local authorities. The question will help to ensure that resources are directed to the areas of greatest need.
The noble Lord also asked about dealing with frivolous answers—for example, the Jedi issue in 2001. It is a legal requirement to complete a form correctly. However, if a person believes themselves to be a Jedi knight, the ONS must make use of those data. ONS publicity nearer to the census will aim to counter any such campaigns arising by highlighting the benefit to communities of having an accurate census.
I hope that that has answered the noble Lord’s questions. If I have left any out, we will look at Hansard.
I thank the noble Lord. The noble Lord, Lord Maclennan, asked why there will be no impact assessment. As no business or voluntary body will be required to undertake any duty that the ONS believes might prove detrimental to their work, delay their normal day-to-day business or place an additional cost upon them other than asking the manager of any commercial establishment to hand out or collect questionnaires to any usual residents and then complete a short questionnaire in respect of their establishment, the ONS believes that the 2011 census impact on the private or voluntary sector will be minimal. The noble Lord talked about it taking half an hour to complete a form; I have seen in my briefing reference to 10 minutes, but we will see. An impact assessment will be published before the census regulations are laid in the spring of 2010, so there will be one before the regulations.
Other countries have a five-yearly census, and the noble Lord highlighted those countries. Given our highly mobile population, particularly considering the money being allocated, why would we not have a five-yearly census? There were proposals for a five-yearly census in 1976, 1986 and 1996, but they were all rejected on cost grounds. The ONS is currently reviewing the option beyond 2011, so there will be a review of how we take it from here, given the issues that the noble Lord raised about the great changes in our society—the electronic changes, the ethnic changes and the way our country looks now compared with how it looked 10 years ago. There will be a review of whether a 10-yearly census is the way forward.
The noble Lord, Lord Maclennan, asked about stakeholders being consulted on costs. Stakeholders were widely consulted on the pros and cons of different options. Population-estimate quality is paramount. This cost and this level of investment are required to provide data of a profoundly excellent quality.
The noble Lord asked about competition for preparations in order to reduce costs. Fifty per cent of the census costs are for outsourced services, all of which have been subject to full competitive tendering. If the noble Lord wants more information on that, I shall be happy to correspond with him.
The noble Lord, Lord Maclennan, took as an example the Arab tick-box and asked why it should not say “Arab/White” or “Arab/Mixed”. He reflected with us on what it will be appropriate for people to tick both now and in the future, given our increasingly mixed community. At present, we say that people should tick the mixed or multiple options. There is always a space to write in, so if people think that none of the options refer to them, they can always use the blank write-in space, and that will have to be used as part of the statistical dissemination.
The noble Lord talked about questions relating to national identity and spoken English—for example, “How good is your English?”—and asked how subjective and not necessarily convincing answers could be measured. It is true that if English were not my first language, I might think that it was better than someone else considered it to be. The main purpose of the national identity question is to encourage participation in the census by allowing respondents to express their identity in a manner that is meaningful to them. English language proficiency has been well tested. A lot of surveys and testing have been carried out by the ONS and have shown that information of sufficient quality has been provided for the respondents. Therefore, it may not be perfect but it is of a sufficient quality.
The noble Lord also asked about the workplace address where people have more than one job, and he quoted the contract plumber who moves around. People should give the workplace address for their main job, or state that they have been based at home in the case of the plumber who moves around. This will be made clear in the instructions within the question.
I was asked how the questions were chosen. The key requirement for the 2011 census is to provide a robust estimate of the population count and a benchmark for key population statistics on a consistent and comparable basis for small areas and small populations. The specific criteria used by the ONS for judging the priority for topics to include in the census are set out. User need is one; others include data needed for small geographies of populations, a lack of alternative sources to the census, and UK comparability—there is a need for UK-wide outputs. Continuity with previous censuses is also very important. A lot of users want continuity; they want to see trends over 10, 20 and 30 years to decide what services they need to provide. Respondent burden and costs are criteria that are taken into account, as are operational requirements, population-based requirements, international recommendations, equality legislation and use for coding and derivations.
I think that I have already dealt with the issue of the Lockheed Martin employees.
The noble Lord, Lord Stoddart, was concerned about the confidentiality of the census data. Personal census data are kept confidential at all times and released into the public domain only after 100 years. The ONS takes very seriously the confidentiality of any individual’s information and it has a 200-year track record of maintaining census confidentiality. The information is used only for statistical purposes, and anyone unlawfully disclosing personal census information will, as we have said, be liable to prosecution. The noble Lord referred to the recent troubles in another place. However, the data are even exempt from the Freedom of Information Act under Section 40 of the Statistics and Registration Service Act. Confidentiality is written into primary legislation. All persons acting as agents for the UK Statistics Authority in the conduct of a census will be covered by the same stringent confidentiality restrictions as apply to census officers themselves. There are penalties for breaches.
Completed questionnaires will be posted back or returned securely online. They will be seen only by those census staff responsible for processing data. Data from the census will be held securely and, under the current policy, will be treated as confidential for, as I have said, 100 years. The paper questionnaires will be destroyed in a controlled manner. Some specialist researchers are allowed supervised access to record data under licence, but not until they have signed confidentiality agreements. I hope that that answers the noble Lord.
The noble Lord has said that government data have been lost; that is true. He said that he would need assurances that data will not be lost by the ONS or by contractors. The ONS has a two-year history of protecting personal data. It is an utmost priority for it to continue to ensure security. Any possible threats have been assessed and tested to destruction, but obviously there are still possibilities. We shall just have to keep a very close eye on the situation, and extensive measures have been put in place to address such problems.
The noble Lord, Lord Stoddart, asked whether data will be stored on discs or memory sticks. All USB ports on computers with access to census data will be disabled.
The noble Lord, Lord Maclennan, asked whether he could be identified as Scottish, British and European. The national identity question on the census form will allow multiple responses.
I hope that I have covered most of the questions that noble Lords have put. I thank them for an important debate, and I am sure that we will meet again when the regulations appear, should this order go through.
Committee adjourned at 6.37 pm.