Wednesday, 9 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.
Immigration (Biometric Registration) (Amendment No. 2) Regulations 2009
Considered in Grand Committee
My Lords, the Government remain committed to securing UK borders, improving immigration control and reducing identity abuse. As part of that goal, we introduced biometric registration powers in the UK Borders Act 2007 through which the Secretary of State is able to issue secure, reliable biometric documents to foreign nationals who are subject to immigration control. We issued the first identity cards to foreign nationals at the end of November 2008.
The regulations are designed to extend the category for foreign nationals required to apply for an identity card. They will amend the Immigration (Biometric Registration) Regulations 2008, which came into force on 25 November 2008. The 2008 regulations were previously amended by the Immigration (Biometric Registration) (Amendment) Regulations 2009, which came into effect on 31 March 2009.
Since 25 November 2008, we have issued more than 120,000 identity cards to successful applicants. The scheme has enabled us to identify persons using false identities to apply for leave, which has led to 15 successful prosecutions. A further 14 cases are awaiting prosecution and several other applications are under investigation.
The identity cards are a more secure means of demonstrating a person's entitlement to work and live in the United Kingdom. As we crack down on immigration abuse and identity fraud, it is a high priority to issue identity cards to foreign nationals who are subject to immigration control. We therefore want to continue our rollout by adding tier 2 skilled workers extending their stay in the UK.
The regulations will enable the identity card for foreign nationals to be issued to those applying to extend their stay under tier 2 of the points-based system, which covers: people coming in to fill vacancies that have been advertised to resident workers, but when no residents were available to fill the vacancy, which includes those coming to fill shortage occupations; employees of multinational companies who are being transferred by an overseas employer to a skilled job in the UK-based branch of the organisation; elite sportspersons and coaches whose employment makes a significant contribution to the development of their sport at the highest level, such as Premier League footballers; and people coming to fill a vacancy as a minister of religion, missionary or member of religious order.
The regulations also reflect the change in the immigration category of “sole representative” to a “representative of an overseas business”, which is intended to encourage inward investment to the UK by providing a means for overseas companies to transfer an employee to the UK in order to establish the UK branch or wholly owned subsidiary.
The regulations extend the definition of dependants to include unmarried and same-sex partners. They also make provision for dependants of foreign nationals to apply for a card when applying for leave as a dependant. Such dependants will be able to apply for a card either at the same time or subsequent to the person on whom they are dependent becoming a cardholder themselves.
I am pleased to have brought the regulations before the Committee today. They are an essential part of our strategy for combating irregular migration and the associated abuses arising from such activities. The regulations seek to combat those things and I hope that the Committee will support them.
My Lords, I am grateful to the Minister. I am also grateful to the noble Lord, Lord Skelmersdale; on every other occasion in Grand Committee, I have been accustomed to going third.
These Benches—noble Lords can see the support behind me—do not support the regulations. We do not support the national identity card scheme so it follows that we do not support the regulations. Phrases such as “the thin end of the wedge” have been used on a number of occasions. We have probably now moved a little closer to the middle of the wedge.
Since warning the Minister last night of only a couple of questions that I thought I might have on the regulations, thinking that most of the points would be rhetorical, I have come up with some more questions. I apologise that I have not warned him of them, but they are all perfectly obvious and I am sure that he is well briefed.
First, since the scheme is being rolled out as part of an incremental arrangement, what has been learned so far? How successful is the scheme in the Government’s view? How is the success measured? The Minister has told us that 120,000 cards have been issued, that there have been 15 successful prosecutions and that 14 cases await prosecution. I assume that that means that they are awaiting trial and that all 29 refer to prosecutions made possible by the cards. I do not know whether the Government are able to give us any comparison with the pre-card regime.
Also, who were the stakeholders with whom the regulations were discussed? What were their views? They are mentioned in paragraph 8.1 of the Explanatory Memorandum. If there was no formal consultation on the regulations, presumably there is no formal collation of the views but, in a scheme which is being rolled out, it is fundamental that the views of stakeholders are accumulated and made available in some manner.
I am aware that I have now probably been speaking for as long as the Minister. I apologise to the Grand Committee, because I intend to go on for a bit longer.
The Government have stated their reason for focusing on foreign nationals—the difficulties experienced by employers in deciding whether a foreign national is entitled to work. I am intrigued to know how much more rolling out will be required for there to be full coverage of foreign nationals. Until it is full, how much use is a partial scheme? I am intrigued to know that the regulations cover footballers and members of religious orders. To many citizens, those two would be much the same. Indeed, some football supporters regard themselves as missionaries for their sport and their teams. It is difficult not to think of foreign nationals as guinea pigs with relatively little public support. I do not mean groups that we have heard about—groups that are likely to abuse or breach the requirements. We know what happened when the Government tried to extend the scheme to airport workers; no doubt that is why they are sticking with foreign nationals. What assurances can the Minister give about fears of discrimination against some groups? Will this not adversely impact on members of black and minority-ethnic communities?
Foreign nationals get the card only if they are here legally and already have documentation to prove it. Most people in this country illegally have come over on visas and have overstayed. I make the point, which has been made before and which we will make again and again, that exit checks are needed, not ID cards. We need to catch criminals, not just identify them.
The appraisal annexed to the Explanatory Memorandum states that ID cards for foreign nationals will deter some illegal immigrants and will therefore reduce crime. What is that crime? Is it the crime of illegal immigration or is it suggested that illegal immigrants are disproportionately criminal in their tendencies?
On fee income from overseas students, it is stated that an element of the immigration fees paid by them is attributable to the card. Since most of the funding for their fees comes from overseas sources, the fee is counted as a benefit to the UK economy. I am not asking a question about this; I simply want to put on record that I find that comment slightly shocking. The annexe also states that the card will make life easier for the cardholder over time. I again make the point that only when there is a full rollout will we see the benefits.
There is great emphasis on the benefits to employers, who have to check whether potential employees are entitled to work. In the debate on this regulations yesterday in the Commons, the Minister, Meg Hillier, said that the scheme,
“is going very well. We are beginning to get reading machines out there; we have a number”.—[Official Report, Commons, Third Delegated Legislation Committee, 8/12/09; col. 7.]
She said there were 12 reading machines in active use at border controls and that they would be rolled out more widely. She said that the 12 readers would be deployed across major ports from January. Apart from the fact that 12 machines seem very few if this scheme is to be comprehensive, even as regards this relatively small group, I do not understand how it can help employers until each employer has a reader or easy access to a reader. I assume they are very expensive.
Another benefit that the Government claim is that the scheme will help stamp out health tourism. Those who seek to extend their stay because they have come over for private medical treatment that has not finished will have practical difficulties in obtaining the card. The chances are that they will be too unwell to traipse off to do whatever is necessary to get that extension recorded.
We are also told in the Explanatory Memorandum that cards will make things easier for the groups concerned. I do not understand that. It is an overarching point. Perhaps the Minister will be able to answer it. I shall not ask him to justify the regulations on the grounds of fighting terrorism because I am convinced there is no answer. However, I shall ask, finally, whether he can cheer us up by telling us that no further order or rollout is proposed in the next six months.
My Lords, I, too, thank the Minister for explaining this statutory instrument with such thoroughness and brevity. I am afraid that, like the noble Baroness, Lady Hamwee, I may have to take a little longer than he did.
The Government’s experience in using ID cards for migrants in this country in increasing numbers and categories is surely not unconnected to their desire ultimately to see them carried by every citizen. As the Minister will know, we are against such use. The Minister will not be surprised that I, like the noble Baroness, Lady Hamwee, have a number of questions on these regulations.
First, the Explanatory Memorandum to the regulations states that the extension of use of biometric immigration documents, or identity cards for foreign nationals—which is what they really are—will,
“make it easier for these foreign nationals to demonstrate their entitlements to their sponsor and access other benefits. It will also make it easier for employers to confirm any entitlement to work as the card clearly sets out the holder’s entitlements”.
However, have the Government not failed to prepare business and public services to be able to check these ID cards?
The noble Baroness, Lady Hamwee, mentioned that the Minister’s colleague in another place had said that 12 identity card readers had been issued by the Government. I believe that this statement was first made shortly after the beginning of October. Be that as it may, can the Minister update the Committee on the number of readers that will be issued? Twelve, I agree, seems a very small number. To my knowledge, there is no timetable for the rollout of the readers. I should also appreciate knowing how many readers the Government believe are needed and where they will be sited. The noble Baroness mentioned ports and airports but, surely to goodness, for the scheme to work properly, they should be much more widely disseminated.
Does the Minister also accept that the inability of organisations to scan or read these biometric documents has already resulted in the creation of a black market in fake ID cards? The Explanatory Memorandum further states that employers will not be required to undertake any additional checks. Does that mean that employers will not have to check the ID cards of foreign nationals whom they already employ, and who will be required to apply? How can one possibly expect someone who employs, for example, a foreign cleaner to know whether their employee is domiciled legally in this country?
Secondly, part of the Government’s justification for extending the categories of foreign nationals required to apply for identity cards is the need to,
“phase out less secure documents”.
Which documents are classed as “less secure” by the Government? Why are biometric visas considered more secure, given that they are already being produced by the criminal fraternity?
Thirdly, the Explanatory Memorandum states:
“Once the National Identity Register is fully operational it is the Government’s intention that the identity card for foreign nationals will be designated as a document under section 4 of the Identity Cards Act 2006, as soon as it is practical”.
Is it therefore the Government’s intention eventually to store the details of foreign nationals on the national identity register alongside those of British citizens? What would be the rationale for joining those data sets, if the Government intend so to do? Somewhat related to this, can the Minister confirm that further information will be added to the identity cards at a later date?
Finally, one of the Government’s rationales for issuing identity cards to those granted further leave to stay in the United Kingdom under tier 2 of the points-based system is,
“to enable UKBA to bring forward the rollout of identity cards to higher risk categories”.
Will all high-risk categories now be covered? If not, what are the remaining high-risk categories and when do the Government intend to roll out ID cards to them?
Does the Minister accept that foreign students remain a high-risk category, despite being covered by ID card legislation? How many foreign students in the UK have ID cards and is it compulsory for students applying from abroad to register for them in advance? Would it not be better for the Government to focus their efforts on tackling the gaps in the student visa regime rather than being distracted by attempts to roll out ID cards?
I should probably know the answer to my next set of questions, but I am afraid that I do not. Are student visas time-limited? What happens at the end of their courses? Do students return to their country of origin and, if they want to work here, reapply for a visa or work permit from there, or can they do it from this country?
Despite what I have said, we on these Benches support biometric identification for foreign nationals in the form of biometric visas. Those details should be kept on the appropriate Home Office database, whether it is the asylum registration card or immigration casework database and so on, and not the national identity register. We shall not on this occasion oppose the regulations, but the Government should not be distracted or justify failing to address the many weaknesses in existing systems by putting in place an expensive measure from which I can see no prospect of stopping illegal immigration or terrorism.
My Lords, I thank noble Lords for their contributions. I was indeed brief. I see no great point in going back over an ID card debate which has been resolved and is now in statute. I do not criticise at all the fact that other political parties have a different view about identity cards, which they have held consistently. On the broader point, which I accept, we are seeking to provide an incremental approach. Effective from the end of November, identity cards became available voluntarily—“voluntarily” is the important word—to those who live and work in Greater Manchester, and to airside workers at Manchester and London City airports. It is in that sense that the word “voluntary” becomes critical, except where we have a requirement on people, for reasons which these regulations seek to identify. A number of interesting points were made by the Liberal Democrat and Conservative spokespersons and I will try to deal with them in the order in which I took them on board.
The noble Baroness, Lady Hamwee, referred to health tourism and those people who are unable because of health conditions—or, indeed, anything else—to attend a public inquiry office or a post office to acquire the document. The answer is that those who are under medical treatment should apply for an extension of stay for that medical treatment. Mobile units can be deployed for applicants who are unable to attend a public inquiry office. Therefore, there is no reason to believe that those individuals would be denied their rights to apply and to be successful in acquiring the card that they need.
I was asked what, effectively, is the value of the card to the incoming tier 2 worker. The card provides a single document that confirms not just status but, importantly, entitlement to work, and access to public funds and local services where that applies. It combines quite a number of documents into one much simpler to understand document.
Discrimination concerns us all. In the summer, I covered the job of Meg Hillier while she was on maternity leave. She is the Minister responsible for identity cards at the Home Office. The truth is that we have been closely in concert with the Commissioner for Racial Equality to ensure that this scheme is fair. I believe that it is the reverse of discrimination. Someone who has this card would be able to avoid any suggestion of discrimination because it gives a clear identity and would protect those individuals. I will come to that when I deal with the other questions that have been put.
On stakeholder consultation, there has been extensive engagement with stakeholders, both those who are likely to require identity cards or volunteer to have them, and those who are likely to want to engage with identity cards in the business community. Key stakeholders include major employers, universities, the finance sector and business groups including the Federation of Small Businesses and the CBI. That consultation led to the card being positively received by applicants, employers and universities, but some concern was expressed that the requirement for skilled workers to apply for the card could inconvenience them. To address that, the UKBA has introduced additional enrolment centres and contracts for enrolment centres to be provided by the Post Office. There was a problem of people coming into one part of the country and being greatly inconvenienced by not being able to get to a convenient centre. We have now extended that facility to 17 Crown post offices, which will allow applicants to enrol at more convenient times—for example, at lunch times and on Saturday mornings. There is no requirement to have an appointment for such an enrolment, so it should be relatively easy.
Again on discrimination, this will apply only to those who are subject to immigration control. Those who are subject will have to apply for leave only if they wish to stay in the UK. If they are granted that leave, they will be issued with a resident’s permit as proof of their immigration status. That comes in the form of a vignette sticker for foreign nations, which contains certain biometric information to satisfy requirements of EU regulations. Those regulations oblige the UK to issue residence permits in a biometric format to replace the existing non-biometric documents. Therefore, we believe this card will serve the purposes of applicants, employers, local government and local social services. Importantly, it has been well received and has helped to secure our borders. We have heard about the 29 people who are subject to legal process. This has led to prison sentences of four to 18 months being imposed. The measure has helped to capture escaped prisoners, including one connected with a firearms offence. What have we learnt to ensure that the system is customer-friendly? We have learnt that it must meet the needs of customers. That is why—as I have just mentioned—we have increased the system’s capacity by extending it through post offices.
The quantified benefits are listed in the assessment but they are subject to complex rules. The calculations are complex and many of the quantified benefits are cross-cutting. We keep benefits under review and in future may be able to quantify further benefits in a wider national identity scheme as it is implemented, and as the opportunities for improving efficiency are identified. All sectors covered by the card will be recognised.
Card readers exercised the noble Baroness and the noble Lord. If you look at the long term—I am going back to the ID card debate, which I do not really want to get into—eventually we will have card readers rolled out in retail, finance and local authorities, not just at borders. I have been carrying a chip-and-PIN card in my wallet for a number of years. For at least half that time it was of no use whatever because there were no chip-and-PIN readers in retail establishments or banks. However, over time, when the value of the chip-and-PIN card—in this case, a credit card—became known, they became worth investing in on the part of retailers, finance companies or local authorities. When a lot of people were prepared to invest in the cards, the capital costs of investment fell. I believe that in the longer term that will also be the case when the identity card rolls out. I make that last point before I encourage the noble Lord to rise to his feet. I am not inviting a debate on the broader aspect; I am simply saying where I believe card readers are going in the longer term. He is absolutely right; in the short and medium term we have to provide card readers at borders. They are used at airports and ports. I am happy to send the noble Lord a list detailing that.
The relationship between the information on the identity card and that on the national identity register was raised by our Liberal Democrat colleagues during the passage of the borders Bill. Information about individuals who apply for identity cards will be recorded on the national identity register; that is a simple fact.
My Lords, before the noble Lord gets on to that point, he gave the example of chip-and-PIN cards, such as debit and credit cards, eventually being read in shops and banks. Does that mean that the readers for these biometric cards are expected to be provided by the private sector and by local authorities but not by central Government?
As part of that question, does the Minister accept that there is a fundamental difference here in that retailers wish to encourage purchasers to make purchases by making that process as convenient as possible for them? I do not think that is comparable to the ID card situation.
I was responding to the broader question of the rollout of card readers. The noble Baroness is absolutely right; that is a responsibility of Government. That is why we are placing them at ports of entry and airports. In the broader and longer term—and I should probably have tried to avoid this debate by not commenting at all—when the value of chip and PIN was seen by the retail and finance industries they were prepared to invest. We believe that it will be similar with identity cards. In the experiments of the past and the rollout that we have now, there is an indication that, for example, an advantage that applies to a student population does not necessarily apply to someone of my venerable age. The ID card can be used in a nightclub or another establishment that requires people to carry their passports to prove their age at the moment. It can also be carried around all the countries of Europe and the EEA, without the requirement to have a passport. Those are not necessarily arguments for this debate—they may be for a broader area of debate—but we do not anticipate a further order on this issue or related issues in the next six months. I think that that will bring noble Lords some relief.
I turn to some of the other questions, although I am not sure that I will get them all. The noble Lord, Lord Skelmersdale, has a tremendous appetite for questions that require detailed answers, which I am more than happy to respond to, although I am not sure that I can respond to them orally and do justice to their value. However, I can almost certainly provide a written response.
We do not believe that we see, so far at least, any black market in identity cards. There may be one in identity cards for other purposes, but the cards that are being produced are quite difficult to copy. There was a Daily Mail article a year ago—or in the summer, at least—that pretended that an identity card had been cloned, but it demonstrably did not clone the national identity card that is produced under these regulations. It took a blank card and put its own information on it. Although there is always a danger that technology, criminality and ingenuity go together to defeat us, at the moment we certainly do not believe that that is happening. Indeed, we think that we have designed a card that it would be extremely difficult to clone or forge.
A question was asked about discrimination, and I hope that we have dealt with that. The current vignette that is placed in the passport will be replaced by 2014, when it is assumed that 90 per cent of foreign nationals will have an identity card. That achievement will provide third-country nationals with a single document to confirm identity, status and entitlement to work and facilitate access to services. We believe that that is a reverse of discrimination and provides employers, universities and others that provide such services with a single document that can be accepted as identity and entitlement. At the moment there are numerous documents that can be produced as proof of identity and entitlement, but that causes confusion and a considerable burden in authenticating documentation and confirming identity and entitlement. We hope that what we are putting forward is a much simpler but non-discriminatory way of protecting our borders and the individuals concerned.
A number of other questions need to be answered, but we have taken a considerable time in a long day of statutory instruments. I wonder whether the noble Lord, Lord Skelmersdale, in particular, would be content for me to respond in writing to the questions that he put, or whether any particular question burns into his heart and soul so badly that he cannot live without an answer given orally.
My Lords, if that is a reference to my amateur dramatic past, I think that we had better forget it. There is only one question from the list that I produced that the Minister has not answered to which I would be extremely grateful for an answer today, on the subject of students, given that we have a Starred Question on Tuesday on students, artists and that sort of thing.
My Lords, it is tempting to say that, if there is a Starred Question, why would I spoil the theatre of the Chamber by answering it now? I will be contradicted if I get it wrong, but I will launch into it. The problem referred to may indeed be part of the gestation for the Starred Question—that there is more difficulty around people who come to the United Kingdom for a short period with visas under the new regime. By including sport personalities and others, we seek to overcome that. I suspect that there will still be some problems for people with short-term requirements who come on short-term visas, but there has always been a problem in relation to people in the business sector who may have an engagement in London or Manchester at very short notice. We do not seek to do anything different; we certainly do not intend to make things more difficult for them. I suspect that the question has been raised on several occasions and that my Home Office colleagues are sympathetic to finding a solution to it. The regulations do not make life more difficult in any way; I hope that they would ease the situation somewhat. If that is an inadequate answer, I will ensure that I get another answer to the noble Lord in quick time—before the beginning of next week.
I am very grateful. I probably made a mistake in mentioning Tuesday’s Question. Of course, the noble Baroness and I both asked questions about students in specific relation to the regulations, but if the noble Lord is happy to write I am sure that she, and certainly I, would be happy to receive his missive.
I can answer one simple point. I was asked whether visas for students were time-related. They are related to the course that they are on. A problem raised with us was about students having a course in medicine or what have you that went beyond the normal period of a university degree. That is one of the issues that has been taken care of.
Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 3) Order 2009
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 3) Order 2009.
Relevant Document: First Report from the Joint Committee on Statutory Instruments.
My Lords, the Crime (International Co-operation) Act 2003 provides a streamlined and modernised framework pursuant to which the United Kingdom can both make and execute requests for mutual legal assistance. In an effort to further improve international co-operation we seek to designate Albania, Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Israel, Montenegro, Serbia and Switzerland as participating countries for the purpose of various sections of that Act.
The designations that will be made under the order are required to enable the UK to ratify the second additional protocol to the European Convention on Mutual Assistance in Criminal Matters, which the noble Lord, Lord Skelmersdale, and I discussed on Monday evening as part of the debate on an excellent report from one of your Lordships’ Select Committees. The convention is an important instrument in the provision of mutual legal assistance between states and forms the treaty basis for a high proportion of both incoming and outgoing requests for criminal mutual legal assistance. The second additional protocol is aimed at strengthening mutual legal assistance among the parties to the convention and widening the scope of mutual legal assistance which is available. As I said, it is worth noting that the House of Lords Select Committee on the European Union made clear in its recent report on money-laundering and terrorist financing, which was the subject of an excellent debate on Monday, that it is keen that the UK move swiftly towards ratification of the second additional protocol. That is what we are taking forward in this order.
I shall read my brief slowly, because it confuses me when I read it quickly. To ratify the second additional protocol the UK needs, among other things, to be able to deal with requests for mutual legal assistance in accordance with Sections 31, 47 and 48 of, and paragraph 15 of Schedule 2 to, the Crime (International Co-operation) Act 2003, and to ensure that UK criminal process is served overseas in line with the provisions of Sections 4 and 4B of the same Act.
Under the scheme of the 2003 Act, for the UK to seek and provide mutual legal assistance to a country in accordance with these provisions, it is stated that it must fall within the definition of a “participating country” in Section 51(2)(b) of the 2003 Act.
A country falls to be regarded as a participating country under Section 51(2)(b) if it was a member state of the European Union on the date on which the relevant provision of the 2003 Act was commenced or if it has been designated as a participating country in an order made by the Secretary of State.
While most of the countries which are parties to the second additional protocol were member states of the EU on the date on which Sections 4, 4B, 31, 47 and 48 of, and paragraph 15 of Schedule 2 to, the 2003 Act were commenced, and therefore fall to be regarded as participating countries for the purpose of those provisions, some of the ratifying states were not. Accordingly, this order seeks to designate those states as participating countries for the purpose of those provisions.
The effect of the designations will be as follows. Designating the relevant states as participating countries for the purposes of Section 31 of, and paragraph 15 of Schedule 2 to, the 2003 Act will allow the UK to execute requests for witnesses in this country to give evidence in foreign proceedings by telephone and to ensure that where such evidence is given the process is supervised by a court in the participating country. Designating the relevant states as participating countries for the purposes of Section 47 will allow the temporary transfer of UK prisoners to that participating country to assist with investigations into an offence that may or may not have been committed in the UK. Similarly, designation for the purpose of Section 48 will allow the temporary transfer of prisoners from a participating country to the United Kingdom to assist with investigations into an offence which was, or may have been, committed in that participating country.
Designation as participating countries for the purposes of Sections 4 and 4B of the 2003 Act will mean that service of process, written charges or requisitions from the UK to persons in participating countries must be by post, save where the person’s correct address is unknown, where it has not been possible to serve the process by post, where there are good reasons for thinking that service by post will not be effective or where it is inappropriate. Switzerland is not designated here as it has already been designated as a participating country for the purpose of these sections at an earlier date.
The UK is committed to improving the provision of mutual legal assistance, which is a key tool in ensuring that cross-border crime can be combated and that justice is achieved for British victims of crime. Ratifying the second additional protocol will further these aims. This order, which will allow us to ratify the second additional protocol, will therefore be of great benefit to British victims of crime. I accordingly commend the order to the Committee.
My Lords, I am most grateful to the Minister for explaining this order, which designates a number of countries as participating countries for the purposes of the Crime (International Co-operation) Act 2003. This means that the number of arrangements for mutual legal assistance for criminal matters that the UK can have with other countries and vice versa is increased. That is good. As the Minister also said, this order covers the temporary transfer of prisoners to assist in investigations, allows a witness to provide evidence by telephone for use in proceedings in another participating country and states the procedure by which process must be served on an individual. The countries being designated today are members of the Council of Europe, and many of them are candidate countries for EU membership or are observer states, such as Israel. The Council of Europe has done much to harmonise legal standards between countries. Mutual legal assistance in criminal matters is no exception and is important.
As we agreed in Monday’s debate on the EU committee’s report, crime is increasingly cross-border. The problem is that differences between national procedures can mean that information gathered in one country cannot be used in another because the way that the information was obtained does not fit with the national procedural requirements. This was the rationale for the 1959 European Convention on Mutual Assistance in Criminal Matters, which provides that a requesting state can ask another state to comply with some formalities or procedural requirements essential under the former’s national legislation. However, the backdrop of our consideration of this order must be how far we have confidence in the judicial and police systems of other countries that will be parties to the reciprocal agreements. Can the Minister therefore say how the adherence of participating countries to agreements on mutual legal assistance, including standards of treatment in criminal matters, is monitored and ensured?
This is particularly important in the context of Chapter 5. I am dealing with this a little more broadly than the Minister did with his specific references to sections of and schedules to the Act. These provisions deal with the transfer of UK prisoners to a participating country to assist with a criminal investigation into an offence which was, or may have been, committed in the United Kingdom. Corresponding provisions allow for the transfer of prisoners to this country.
The noble Lord will know that people in prison, either on remand or as convicted prisoners, are potentially vulnerable to pressure to consent to transfer orders. Can he therefore, on behalf of the Government, give your Lordships’ Grand Committee a clear assurance that any such prisoner being transferred to any of the countries listed in the order will receive appropriate legal advice and say what that appropriate legal advice will be; and can he assure us that they will not be placed under implied or actual pressure to give their consent? This is important because—it should be noted—this consent cannot be withdrawn once given. This has an added importance, given that the provisions also do not exclude the transfer of particularly vulnerable prisoners, such as those under the age of 18, albeit that provision is made for an appropriate adult to give consent in certain circumstances on behalf of a youthful or physically or mentally disadvantaged person. Can the Minister assure us that a transferred prisoner’s return to the United Kingdom from the countries listed in this order, which include the Balkans and Israel, will be guaranteed and that steps will be taken to ensure their safety while in these countries’ custody? Can the Minister clearly state what steps will be taken to ensure their safety?
Finally, the Government have said that they expect the power to transfer prisoners to be used rarely. How many prisoners have been transferred to other countries to date under the current arrangements, particularly to assist in the investigation of crimes that are alleged to have taken place here in the United Kingdom? Can the Minister give your Lordships’ Committee a clear assurance that the Government will not permit transfers, either from or to the United Kingdom, within the EU, the Balkans and Israel, which offend this country’s understanding and sense of proportionality and fairness?
I turn now to a related matter. In extending the number of states designated as participating countries, this order is required before the United Kingdom can ratify the second additional protocol to the European convention, of which we heard quite a lot on Monday. We know that it is the Government’s intention to ratify the protocol. The European Union Select Committee was critical that it had taken the Government since 2001—eight years—to reach this point. In evidence to the committee, a Home Office official said that this was because of,
“one or two policy issues … around mutual recognition in areas like control, delivery, covert surveillance”,
and “joint intelligence teams”. Can the Minister please expand on what these issues are and how the Government have addressed and are addressing them? Earlier this year the Government estimated that the UK would ratify the protocol by the autumn. Clearly this is no longer the case, so when do the Government now expect to do so? Also, how are the Government encouraging other countries to ratify the protocol? I will not repeat the obvious question that I asked on Monday because I am awaiting the Minister’s missive on that and other subjects.
As I said, mutual legal assistance is important, but the Government must be careful about how it is used. On the basis that the Minister can give your Lordships’ Committee the appropriate assurances that I have asked for, we can support the order.
My Lords, a number of my questions were very similar to those of the noble Lord, Lord Skelmersdale, so I will not take the time of the Committee by repeating them. I thank the Minister for his presentation of the order and assure him that we support what the Government propose and that my comments will be easier than those on the last order.
When I saw the order, I asked my noble friend Lord Wallace whether he had any comments, leading as he does on foreign affairs. Almost inevitably, he pointed to the juxtaposition of Albania, Bosnia-Herzegovina and Switzerland, and asked whether the Government had previously considered the quality of the Swiss police and prosecuting authorities to be on the same level as those of the states of the western Balkans, and co-operation with them to have been comparably difficult. I take his point that Switzerland is not now being designated, as it already has been. I do not know whether it is fully participating or will be when this is passed, if that is the right way to put it. Perhaps more sloppily, are all aspects now covered as regards Switzerland?
I have warned the Minister of these questions. Are there any remaining European countries which are not participating? With regard to the service of process to be undertaken by the post, how reliable are the postal services in the countries in question? How is service achieved now, before the order comes into effect? I ask that question from my background as a solicitor. I no longer practise but the scars of failing, or being aware of other people failing, to serve something stay painfully deep with one. I should say that my firm was never in that position. It was from observing others.
I would imagine that any expenses attached to the new arrangements for travel, telephone and so on would be de minimis, but the Minister might like to comment on that. The noble Lord, Lord Skelmersdale, has asked about the protection of prisoners going to certain other countries. Will the Minister comment on custody conditions in the countries concerned? We will all have read about the luxurious accommodation in Gstaad made available to one person who is being held in Switzerland, but I hardly think that that is typical. The more serious question is with regard to some of the countries whose facilities are perhaps not as developed as those in western Europe.
My Lords, I thank noble Lords who have participated. Their questions are rightly raised in terms of not only our willingness to work with colleagues abroad but to ensure that anyone who is subject to the transfers is treated as he would be, and no worse than, in the United Kingdom. To deal with the questions more or less in the order that they were raised, the noble Lord, Lord Skelmersdale, asked about the adherence of participating countries.
Parts of the 1959 convention undertake to give the widest measure of mutual assistance possible within domestic law. The MLA process relies on good faith, mutual trust and a common interest in fighting crime. MLA arrangements between the UK and countries designated in this order have been good and ratification of the second additional protocol should only strengthen those relations. If any problem arises in relation to the MLA, the aim will be to deal with these problems at official level and to escalate them to a ministerial level if necessary. If that does not prove to be successful were there to be a problem, there is a provision in the second additional protocol, Article 29, to support the friendly settlement of any problem arising out of the application of the convention and its protocols through the European Committee on Crime Problems of the Council of Europe.
On ratification and entry into force, the Government are bringing forward another piece of necessary secondary legislation to ratify the protocol. This statutory instrument is in relation to civil and criminal liability of officers in international joint investigation teams. It will be subject to a negative resolution. Once this is laid before Parliament, and if this secondary legislation is passed by the House, the UK Government will be in a position to prepare instruments of ratification with the second additional protocol. It would then enter into force on the first day of the month following the expiry of three months after the date on which the UK deposits the instrument of ratification with the Secretary-General of the Council of Europe. The aim is to complete that process as quickly as possible.
Ratification of the second additional protocol is necessary for the UK to be able to access the full range of mutual legal assistance available under it. It provides a framework for a broad range of mutual legal assistance and is specifically available to states that have ratified it. This includes assistance in relation to joint investigation teams, covert investigations and controlled deliveries. The protocol also provides a number of operational benefits. By requiring process to be sent directly to individuals and by allowing direct transmission of mutual legal assistance requests by prosecutors, bureaucracy is reduced and the entire mutual legal assistance process expedited. It is important for the UK to show its commitment to MLA internationally and the importance that it attaches to it as a tool in the fight against international crime. We hope that this move will encourage other countries which have not signed or ratified the protocol to go through the same process, perhaps without the great expanse of time between signing and ratification which was a criticism of the committee of the noble Lord, Lord Jopling, which I found hard to argue against.
On legal assistance, it is entirely a matter for the prisoner concerned whether they wish to consent to any temporary transfer. No pressure would be applied, and there would be no adverse consequences for them if they chose not to consent. They would need to seek legal advice if necessary, but it would be their responsibility and not that of the state.
I was asked how many requests have been received under Sections 47 and 48. The answer is very simple: to date, the UK has neither made nor received any such requests. Consequently, no prisoner has been transferred to or from the United Kingdom under these powers. It is not envisaged that the designation of these countries will lead to a large number of such exchange requests.
The noble Lord, Lord Skelmersdale, was rightly concerned that the transfer of prisoners should be proportionate. In considering the proportionality of any temporary transfer to assist in criminal investigations, three important points are to be kept in mind. First, the transfer should be for only a short period and as long as was necessary to assist in the investigation in question. That point would be made at the time of request from the MLA transfer country. Secondly, the transfer should be carried out only with the consent of the relevant prisoner. Thirdly, the purpose of the transfer should be to assist with a criminal investigation. I am sure that most noble Lords would find that aim easy to understand and recognise its importance.
Given the limited circumstances in which a transfer of a prisoner could therefore take place and the fact that they were being transferred quite voluntarily, together with the important public interest that such transfers could serve, I can see no argument for their being deemed disproportionate. If it were, the transfer would have to be shown to be compatible with the ECHR. If the transfer were considered to be disproportionate when measured against that, it could not take place.
The noble Baroness, Lady Hamwee, asked a number of related questions, one of which was about Switzerland. Having spent considerable time during the past 12 or 15 years in Switzerland, I have views about its democracy and the way in which it applies locally, but I do not believe that anyone could accuse the Swiss police authorities or police force of being other than of the highest standard. It is a consequence of Switzerland not being in the EU that it does not fall automatically to be considered a participating country. Therefore, there must be an international agreement to which both the UK and Switzerland are party, and it would need to be designated as a participating country for it to be fully involved. For example, it has already been designated for service of process under the previous EU-Switzerland agreement, but the problem with that was that it dealt with fraud but did not go any wider. However, Switzerland has ratified the second additional protocol, and we intend to do likewise. Therefore, it is necessary and appropriate that we designate it as a member state in our participating country list.
The question was asked, “Who is, who isn’t?”. All current EU member states are participating countries for the purpose of the Crime (International Co-operation) Act 2003, which means that all EU member states can benefit from the provisions of that Act, which is relevant only to participating countries. The Council of Europe countries, EU and non-EU, which have not yet ratified or signed the second additional protocol are as follows. Those that have signed but not ratified are Armenia, Cyprus, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Luxembourg, Malta, the Netherlands, Norway, Slovenia, Sweden, Ukraine and the United Kingdom—but we have now declared our intent and are legislating so to do. The 12 that have neither signed nor ratified the protocol, in contrast to those that have signed but not yet ratified, are Andorra, Austria, Azerbaijan, Georgia, Italy, Liechtenstein, Moldova, Monaco, Russia, San Marino, Spain and Turkey.
The noble Baroness and the noble Lord were concerned about the custody conditions into which prisoners might be transferred, however temporarily. As we said, the consent of the person in custody in the first instance is required, otherwise it will not take place. Additionally, we are bound by the Human Rights Act to act in accordance with convention rights, and it would not be appropriate to send a person into custody in a country where custody conditions could give rise to a breach of the ECHR. For the purposes of this order, a person in custody in the UK would be only temporarily transferred on the rare occasion when they were assisting with a UK investigation abroad.
The noble Baroness raised the question of expenses. With the exception of costs related to TV/video link evidence and to the temporary transfer of a prisoner into and out of the UK, it is standard practice with mutual legal assistance that the requested country meets the cost of providing assistance and that the cost of providing telephone connections and so on would be de minimis.
What difficulties have we seen with the process? How reliable are the postal services in other countries and how do we achieve this? There is no difficulty in serving the process in the vast majority of cases. Currently the service of process in these countries can be effected by post or by sending a relevant document to a country’s central authority and requesting the use of postal services. But most often it is effected by using private companies such as FedEx, UPS or whatever, so the quality of the postal service within the country is not necessarily a matter of real concern. At the moment, services can still be sent by post, but the order makes it an obligation that it should be sent by post, save in the limited circumstances to which I referred. That will minimise bureaucracy and ensure that documents are served as quickly as possible.
I think that that deals with most of the questions. When we ratify depends on the second SI, but we are determined to move forward as quickly as we can. I hope, with noble Lords’ support, we can ensure that this order goes on its way and that we are one step closer to the overdue ratification.
The Minister referred, rightly, to the consent of the prisoner being required for a transfer. I assume that it is implicit that the consent can be withdrawn at any time so that the prisoner could require to be returned. Will he confirm whether that is the case? If he cannot do so now, perhaps he could come back to us on that.
I presume that that is the case. I shall look bemused and hope that somebody nods at me—and, yes, they have done. To me, that is natural justice. If consent is required, consent for retaining the person is also required. I am pleased to say that the answer is positive.
Social Security (Contributions Credits for Parents and Carers) Regulations 2009
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Social Security (Contributions Credits for Parents and Carers) Regulations 2009.
Relevant Document: 22nd Report, Session 2008-09, from the Joint Committee on Statutory Instruments.
My Lords, the regulations were laid before the House on 12 October. Before I proceed further, I wish to state that in my view this statutory instrument is compatible with the European Convention on Human Rights.
The background to the regulations is the credits for parents and carers, introduced into the Social Security Contributions and Benefits Act 1992 by the Pensions Act 2007, which both replaces and builds on the home responsibilities protection provisions. The Act introduced a new carer’s credit available to people engaged in caring, which the regulations provide to include caring for one or more persons for a total of 20 hours a week or more.
The Committee may recall that, when the credit was first proposed, it was to be available only where the persons cared for were in receipt of a relevant disability-related benefit. However, following discussions with carers’ representatives, it was decided to extend the provision to those caring for at least 20 hours a week for people without a qualifying benefit, but where the need for care was certified by a health or social care professional. The provisions were warmly welcomed by noble Lords but there were some reservations concerning the delegation of the provisions to regulations. I hope that these regulations, which define “engaged in caring” and are the result of extensive collaboration with stakeholders, will reassure noble Lords.
The overall consensus has been that the certification arrangements should operate with a “light touch” to avoid disqualifying someone who is not in regular contact with professional health agencies. Consequently, the range of people who are able to certify the need for care is designed to be as broad as possible. There is no prescribed list of people who could certify, and this could be done, for instance, by a member of a voluntary group in regular contact with the person being cared for.
We have worked throughout with representatives from Carers UK, which has helped to produce the guidance for certifiers. I am delighted that we have also been able to work with Carers UK to produce a most successful Carers Rights Day last Friday, which this year had a theme relevant to these regulations of “Caring for your Pension”.
As a result of these credits for carers, around 160,000 more people could start to gain a credit for the basic state pension in 2010, including around 115,000 women. Also around 240,000 more people could accrue entitlement to state second pension than are currently doing so, including around 145,000 women. The Committee may have noticed that these figures are somewhat higher than those contained in the Explanatory Memorandum to the regulations. The lower figures represent those estimated to gain through caring for someone with a disability-related benefit only. They do not include those where the need for care is certified. We have arranged for the Explanatory Memorandum to be corrected and relaid.
The regulations also include some provisions to help other carers. Foster carers, defined here, and people getting child benefit for a child under 12 are expressly provided for in the Social Security Contributions and Benefits Act 1992. Also in respect of child benefit, Regulation 5(1)(a) provides for the partners of child benefit recipients to be treated as “engaged in caring” for the purposes of these credits. That is when the child benefit recipient cannot themselves benefit from the credits because he or she already has a qualifying year for basic and additional pension purposes—most usually through paid work.
From April 2008, we introduced a similar provision for transferring HRP entitlement between partners. That has proved very useful on those occasions where the “wrong person” has claimed child benefit and their partner, at home with the children, would otherwise not have received credits towards a state pension.
I need to draw noble Lords’ attention to one small drafting error in the regulations. As some may have noticed, the words,
“is in receipt of income support”,
in Regulation 10(2)(a) are superfluous. Income support carers, defined in Regulation 5(1)(c), are not required to make an application.
In summary, these regulations seek to ensure that the greatest number of genuine carers benefit from these new credits. They put in place the final piece of the legislation designed to enhance the pension prospects of carers and others with broken work records. The credits, together with the reduction in the number of qualifying years and the single contribution condition, will mean that from next April around three-quarters of women reaching pension age will qualify for a full basic state pension, compared to around half without these changes. Ultimately, around 95 per cent of women will qualify for a full basic state pension. It will become possible to obtain a full pension solely on the basis of credit so that, for the first time, caring will be fully on a par with paid employment. I recommend these regulations to the Committee.
My Lords, I thank the Minister for his full explanation of how these regulations will work. I also welcome the statutory instrument, which puts into effect measures which I know my noble friend Lord Skelmersdale strongly supported in Committee on the then Pensions Bill a little more than two years ago.
These regulations ensure that carers and foster parents obtain full contribution credits for national insurance purposes. It is clearly in the interests of the state and, indeed, of all of us, that people who take on these important and historically undervalued roles are allowed maximum flexibility in building up their rights to receive state pensions and other relevant support. To that extent, it makes a statement about the social value of the role of caring. The regulations spell out the mechanism by which carers will get carer’s credit and, in particular, whether the person they are caring for is entitled to benefit. The approach adopted here is the introduction of the care certificate and the reliance on certification by health and social care professionals, and even, in some cases, members of voluntary groups, all approved by the Secretary of State.
I note that the Minister talked about this process being conducted with a light touch. I am sure we are all aware of the current concern being expressed at the so-called light-touch regulation in so far as it applied to our ruined financial sector. I became concerned when I read the draft notes for certifiers about what was being required from them. Clearly it is a sophisticated judgment, as one can see when one looks at the definition of care. The draft states that care may take many forms; that it is important that we recognise a wide range of caring responsibilities; and that it is equally important that we take a balanced view which does not reward somebody for performing duties that would normally be considered day-to-day housekeeping. The second implication of these draft guidance notes is that it is a time-consuming requirement. The notes refer to needing to know the circumstances of the particular carer in some detail. The implication is that the certifier needs to keep in touch with developments in case circumstances change, so it is quite a sophisticated burden.
In the austere times we are facing, I hope that this new light-touch regime does two things: first, that it is effective in preventing fraudulent claims; and, secondly, that it does not bring with it a heavy burden of regulatory oversight. My concern is that if there were lurid stories in the press about people abusing the system, the reaction would be to tighten up, and make far heavier, the regulatory burden as opposed to the light touch which is envisaged. The risk with such a system is that it is expensive in the requirements it imposes and in the direct costs of operation. I shall be most interested to hear the Minister’s response on the assessment that the department has made of the issues surrounding fraud and cost in this area. I should also like to be told the absolute cost of incorporating these extra people into the state pension system, as I could not find that in the notes.
The inclusion of foster carers in the regulations makes sense in the context of the severe difficulties that we have seen in recent years in the provision of fostering places. Anything that makes fostering easier and more rewarding is to be welcomed. However, the regulations are likely to improve provision very much at the margin. The challenge to the Government remains to make sure that there is adequate and stable fostering for children. We have had warnings from those involved in the fostering sector that there is a shortage of people prepared to be foster parents—therefore, the options, when placing children, are narrowed—and that too few people are entering the area at a time when we face a looming generational changeover. Therefore, my second area of inquiry to the Minister is: how do these regulations fit into the Government’s measure to ease the shortage of foster carers?
I broaden out the question of care to refer to the Government’s current plans on providing a national care service, of which the provisions we are discussing would clearly form part. The Green Paper, Shaping the Future of Care Together, suggested strongly that this service would be paid for in part out of disability living allowance and attendance allowance. I say “suggested strongly” as no other funding alternatives were sketched out in the Green Paper. However, yesterday the Secretary of State, Andy Burnham, said in another place, at col. 170 of Commons Hansard, that there would be “no cash losers”. Therefore, my third question is: how, then, do the Government plan to fund the national care service? Subject to the response on that, I assure the Minister that we will support this instrument.
My Lords, I, too, thank the Minister for explaining the regulations so clearly. We on these Benches give them our wholehearted welcome. As the Minister said, this arises from the Pensions Act 2007, and establishes new rules for class 3 national insurance contribution credits for those bringing up children or caring for others for 20 or more hours a week. The regulations will in particular greatly improve the state pension records of women, who tend to get a raw deal from the current system. For the first time, caring is to be treated on a par with paid employment for the building up of pension entitlement.
We on these Benches are particularly pleased that the Government have taken on board the proposals in the new clause tabled by my Liberal Democrat colleagues in the other place on Report on the Pension Bill 2007. The new clause, subsequently withdrawn after the Minister promised to consider it in the context of regulations, was entitled “certification scheme for carers” and would have put in the Bill the proposals that we are now considering.
The 2006 White Paper Security in Retirement, which floated a narrower reform, pointed out that around 390,000 carers were not accruing basic pension rights. The White Paper went on to observe that 120,000 of those carers, who were caring for 20 hours or more a week, appeared to face more difficulties in the labour market, not altogether surprisingly, than those caring for fewer than 20 hours a week. The regulations will ensure that at least they are not now compromising their pension entitlement by their most valuable caring activities and not just for those disabled people on qualifying benefits. As we know, a lot of sick and disabled people just cannot face applying for, or just will not apply for, disability living allowance or attendance allowance, or are past the qualifying age for applying for DLA.
It is also welcome that the credits will be available for up to 12 weeks to cover periods of sickness, holidays and respite care, as well as occasions when the disabled person is in hospital and has had any qualifying benefit withdrawn. I presume that if no qualifying benefits have been received, under this regulation the carer will still be covered for 12 weeks. That was not entirely clear in the Explanatory Memorandum. A carer friend of mine says that she is almost busier than normal when her son is in hospital.
I, too, thank the Minister for sending the guidance notes for certifiers. I note that they are to be published on the internet. Will they be available anywhere in hard copy? I imagine that many carers are not necessarily internet literate. That brings me to my next point about how this very welcome policy is to be publicised.
My honourable friend in another place, Mr Steve Webb, made the point that the carers we are talking about may not come into contact with the benefit authorities at all. I do not think that we can assume that all carers can or will access Directgov on the internet. In many ways, healthcare professionals are likely to be key players in letting carers know about their entitlements. While on the subject of healthcare professionals, could the Minister say whether that is a term of art or just a catch-all term? I know that the certifier does not have to be a healthcare professional, but I am curious about whether the term is defined for the purposes of this legislation. What about someone who is a practitioner in the alternative health field, such as an acupuncturist or a homoeopath?
Going back to how the new scheme will be publicised, perhaps notices could be posted in GP surgeries and advertisements taken out in local newspapers. MPs could be encouraged to help disseminate information to their constituents. I note that the Government intend the certification process to be as light touch as possible. That is very welcome, as long as the publicity about the scheme is not light touch, otherwise the take-up will be disappointing. I also note that there is no time limit for claiming the credits and it may be extended indefinitely at the discretion of the Secretary of State or HMRC—a rather surprising fact given the usual strict rules on backdating. Nor is there expected to be a charge paid by the cared-for person to a healthcare professional or other person for certifying a care certificate, although that cannot be enforced. All in all, we welcome this regulation most warmly.
My Lords, it is probably more than 20 years since I started to campaign for a lifetime of caring to be treated equally to a lifetime of paid work in relation to the state pension, so I am a very happy person today. I commend the Government’s flexibility in changing legislation to allow carers to be accredited by a professional to show that they are providing the appropriate numbers of hours of care. As the Minister mentioned, he has worked very closely with Carers UK and I declare an interest as its vice president. Carers UK has argued that restricting this to those caring for those with certain disability benefits will mean that some carers miss out, for example those caring for someone with a mental health condition who refuses to claim or somebody caring for several people getting the lower rate DLA.
This is the first time that those caring for 20 hours a week will have a concrete entitlement. This is recognition that 20 hours is the threshold beyond which carers’ employment prospects are damaged. A number of measures will help carers to build up pension entitlement and will reduce reliance on means-testing in future, including, as we have heard, the introduction of a new carer’s credit for those who are caring for 20 hours or more a week for someone who is severely disabled. That should mean that thousands more carers are eligible for a full basic state pension. The reduction in the number of qualifying years for the full basic state pension means that carers with disrupted contribution records can still build up a full entitlement. The removal of the first contribution condition means that someone who has never worked can still qualify for a full basic state pension. These are hugely important steps forward in stopping carers finding themselves in poverty as a direct result of their caring.
I share the concerns of the noble Baroness about publicising this and perhaps I may link that to the questions posed by the noble Lord, Lord Freud, about fraud. Far from being notorious for defrauding the system, carers are notorious for not claiming. That is the most important reason why we have to publicise this. I am very grateful to the Minister for being prepared to work with the carers’ organisations on take-up and the Carers Rights Day.
I thank the noble Lord for that clarification. I always feel very strongly about this, as noble Lords will perhaps permit. The noble Lord also made a point about the cost. We always have to bear in mind the cost of not supporting carers, not only during their caring life but after their caring has ceased. They contribute £87 billion to the economy. The costs of this measure have to be taken in proportion. I conclude with sincere thanks and congratulations to the Minister.
I thank all noble Lords who have spoken in support of these proposals. I start with my noble friend Lady Pitkeathley and acknowledge her strong campaign over so many years. I guess that I should apologise that it has taken us so long to get to where we are, but I am delighted that she is pleased. Like both other noble Lords who spoke, she recognises the huge contribution that carers make to individuals and to our society as a whole. My noble friend also picked up on the point that this is not only about carers’ credits. Introducing only 30 years’ contributions to get a full basic state pension and dealing with the first contribution condition are important components of making sure that more people can access a basic state pension. I will come on to the point about publicity in a moment.
The noble Lord, Lord Freud, asked what the light-touch approach would entail with this increase and the likelihood of fraud. We need to balance the need to ensure that only genuine carers are awarded credits against the intention that the burden of proof to be placed on them is minimal. That is so that as many carers as possible are able to benefit through our low-key approach. We believe that the risk of fraud is very low because no cash benefit is attached to the credit and the prospect of obtaining an increase in benefit at some point in the future, as opposed to immediately, is unlikely to have much appeal for those who would otherwise seek to abuse the system. However, I agree with the point made by my noble friend about looking at the balance of things and at the huge contribution that carers make to our society.
The noble Lord asked about the certifier being responsible for notifying any change in circumstances. I think he asserted that that was the position. That is not the case; it is for the carer to inform the authorities of any change in circumstances. The certifier needs to be satisfied only that an appropriate level of care was needed at the time of certifying. He asked whether that will be a sophisticated and time-consuming process. It should not be because by having a light-touch approach and a broad approach to who might certify, we are giving opportunities for those who engage routinely in helping people. It would automatically be part of what they know and are engaged in, so they are best able to make those judgments.
The noble Lord asked about the costs of the arrangements. The total cost in terms of state pension expenditure is estimated to be £50 million to 2020. I thought a schedule outlining the costs was attached to the Explanatory Memorandum. If it was not, I shall let the noble Lord have a copy. It shows the costs claimed through the qualifying benefit route or the certification route and how they potentially build up over the period to 2050. The noble Lord raised a broader point, which is outside these regulations, about the shortage of foster carers and he made suggestions. The provisions we are making here to enable foster carers to have better access and to build up better pension rights are positive.
He also asked about proposals for the new care and support reforms, which are referred to in the Green Paper. He said that there are no costings for them nor information about the means by which they might be paid for. He will be aware that a range of options were proposed in the Green Paper and that we are consulting on them. I think the paper originally promulgated five options and dismissed two: costs being entirely paid by individuals and, at the other end of the spectrum, being entirely paid by the taxpayer. There are a range of alternatives in between. That is the fundamental point.
It was asked whether DLA and AA will be abolished to pay for the national care service. In the longer term, there may be a case for bringing some disability benefits and the adult social care system together into a single system as a better way of providing support for all older and disabled people. However, we will make changes to disability benefits only if we are certain that by doing so we can better support disabled people. We know that disability benefits are popular because they provide a universal entitlement that does not depend on where a person lives. They provide a cash budget that can be spent on the services people want, and they are often used to support lower-level needs that help people stay well for longer. These three aspects will all be important components of the new care and support system and will ensure that if disability benefits for older people are reformed as part of a national care service, people receiving the affected benefits at the time of reform will continue to receive the same level of cash support under a new and better care and support system. I think the noble Lord referred to the fact that the Secretary of State for Health gave an explicit assurance in October that we have ruled out any suggestion that DLA for the under-65s will be brought into the new national care service.
The noble Baroness, Lady Thomas, welcomed these provisions, as I knew she would. She was committed to them as we debated them during the passage of the Pensions Bill. She asked how we can ensure that carers know about these credits. We have been working in partnership with Carers UK. Carers Rights Day, which I referred to, encouraged carers to claim all the financial help and support to which they are entitled. A second burst of media activity is planned from February to raise awareness of the availability of the new carer’s credit from April. Our communications people will target broadcasters, such as “The One Show”, and news outlets and will work with them on packages. They will also work with the personal finance pages of the national and regional press to give practical advice to carers on how to apply for the new credit.
Consumer magazines such as Good Housekeeping and My Weekly, together with specialist carer magazines, will also be targeted. Information and guidance for carers will be available on the internet. The idea of information being available in GPs’ surgeries is very helpful and something that we will look to take forward. I hope we can encourage Members of Parliament to have information available in their surgeries.
The noble Baroness asked specifically whether there will be hard copies of the guidance. I think Carers UK and similar organisations would be likely to be able to provide these. At the moment we have no specific plans routinely to circulate hard copies, but we want this to be taken up as widely as possible and will do whatever we can to that effect. The noble Baroness asked specifically about 12-week breaks and how they will apply, particularly when somebody has not accessed disability benefits. Would the 12 weeks still apply? The answer is yes, they would.
The noble Baroness asked about the definition of a healthcare professional. Is it a term of art? I seem to recall that we debated this during the Welfare Reform Bill. I do not remember which one. I think the noble Baroness and her colleague—
The noble Baroness may be right. I have a feeling that we also debated it in relation to the Welfare Reform Act 2007. We have no definitive list and it is not a term of art as far as we are concerned. The regulations refer to health or social care professionals. In practice, the certifier should be a person who, in their professional capacity or as a volunteer, is familiar with the circumstances of the individual disabled person and is able to confirm that they need the amount of care that is being provided. Each application will be considered on its merits. I hope that definition also helps the noble Lord, Lord Freud.
I thank the Minister for giving way. I also thank the noble Baroness, Lady Pitkeathley, for giving way earlier. I apologise for not having thanked her at the appropriate time. I am still learning some of the procedures of the House. The Minister’s argument is an extremely powerful one. My concern about fraud is that the reward for this is so long term that it gives a new meaning to the expression “long-form fraud”, but the numbers mean that it would be well down the list of things that people indulge in. I would also be grateful for the schedule, which was not in my copy but must be available somewhere. I would be grateful for that and the costs. Given what the Minister has said, I am entirely content and strongly support the statutory instrument, as I said before.
Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2009
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2009.
Relevant Document: 24th Report, Session 2008–09, from the Joint Committee on Statutory Instruments.
My Lords, the Committee will be aware that those carrying out waste recovery or disposal operations must have either an environmental permit or must register an exemption from the need for a permit. The UK is one of the few member states to use the discretion that provides permitting exemptions as a lighter touch form of regulation for those operations that pose a lower risk of harm to people or the environment. It might be thought, as we discuss these issues in Committee, that we have made something of a rod for our own back, because where the line is to be drawn is the subject of this debate. But in the general pursuit of lighter regulation, we are sure that the fact that the UK pursues this broad policy is entirely right.
The problem is that exemptions have developed in a somewhat ad hoc manner over the years. When problems have been identified, previous attempts to tighten up the controls have led to the development of several complex notifiable exemptions with registration requirements not dissimilar to those in place for applying for a permit. Experience has shown that many exempt waste operations actually pose a much higher risk than some permitted operations—for instance, commercial-scale composting and large metal recycling operations. The problem is that at the moment the regulator, namely the Environment Agency, is able neither to carry out sufficient assessment of the proposals before the exempt operation starts nor to undertake appropriate levels of monitoring and inspection based on the environmental risk posed and the level of compliance being achieved. Conversely, there are no exemptions at all for many small-scale low-risk operations involving certain reuse or recycling operations for a broad range of wastes from the recycling of coat hangers to the use of lion faeces to make cat repellents, in which the wider danger is by definition somewhat restricted.
Other exempt waste operations have been subject to abuse, with landscaping developments the size of small landfill sites operating under an exemption for the use of waste in construction with no limit on the quantities deposited. The other place debated this poor state of affairs last year and the Government undertook to do something about it. These imbalances rightly led to calls for a review of the boundary between those operations that ought to be permitted and those that should be exempt. The exemptions review carried out jointly by Defra, the Welsh Assembly Government and the Environment Agency over the last three years has involved significant dialogue with a wide range of businesses and others and has included not one but two public consultations, which have led to the proposals before us today.
The regulations will change the boundary. After consideration of all the responses to the consultations, the Government concluded that the most effective and cost-efficient means of ensuring that the waste framework directive’s requirements are implemented in a proportionate, risk-based way to meet our better regulation and simplification agenda is to provide new and amended exemptions for smaller-scale low-risk waste operations, while restricting or removing the extent of exemptions for higher-risk operations. Importantly, the decision on where to draw that boundary has been carried out using a systematic assessment against a number of environmental principles and other criteria, an approach that was very widely supported by those responding to the consultation. These principles and criteria are to be enshrined in government guidance so that they can be used in future reviews. We are currently consulting on the guidance to accompany the revised exemptions. I assure the Committee that this guidance will be completed and in place before the changes to the legislation come into force next April, if these regulations are approved.
Operators of the new simple exemptions will be able to register one or more exemptions in relation to as many sites as they operate at no cost—with just one exception—and with a minimum of information needing to be submitted.
Eighty-eight per cent of the existing 145,000 sites that are registered as exempt will remain exempt. Others that are currently paying for and subject to assessment under a notifiable exemption will benefit straightaway from the free, simple exemption. The number of exempt sites will be added to by potentially thousands of additional sites for which there is currently no exemption provided in law but where the agency has not required them to apply for a permit; in other words, the low-risk positions.
Nine per cent of current exempt sites will no longer need to register as they are not considered to be carrying on waste recovery or disposal operations. That leaves the 3 per cent of sites that pose the highest risk or have been subject to abuse and therefore merit closer scrutiny. Those will need a permit. Most of them are already subject to notifiable exemption controls and may be subject to relatively minor changes to the measures they have to take to mitigate any risk of harm or pollution. These include the larger metal recycling sites, large-scale land remediation and landscaping developments, and spreading waste on land for agricultural benefit. The exception is composting, where commercial-scale composting will be subject to greater requirements to mitigate the risk that it poses.
I emphasise the benefits for the majority of operators. In last week’s Commons debate, mistaken allegations were made about the impact on the 3 per cent of operations that will require a permit, particularly in respect of planning permission, as well as the extent of changes being made to the environmental permitting regime. I hope that the Government’s reply to that debate will have been sufficient to allay concerns. I know that the other place proceeded to a vote on the issue.
It is imperative that we provide the many new and amended exemptions that will encourage businesses to carry out recycling and recovery and reduce the burdens on them, as well as bring an end to abuses and inadequate controls. Not to do so, or to remove exemptions altogether, would be wrong and undermine our drive to encourage recovery and recycling to deliver the objectives of the waste strategy. It would have a financial impact on many smaller organisations in a wide range of sectors that rely on the exemptions to store, dismantle or treat a wide range of recyclable wastes. The proposals are a key simplification measure. They have been through thorough impact assessment and scrutiny by the Merits Committee and are an example of better regulation that is proportionate and targeted. That is why we have made these significant revisions of the previous regime.
That is the basis of and philosophy behind the proposals. I commend the regulations to the Committee. I beg to move.
My Lords, I thank the Minister for introducing these regulations. I must declare an interest as a farmer and grower whose business may be affected by the regulations in one way or another, even though there are exemptions for agriculture.
I listened with care to the presentation of the background to these regulations. In general, we understand the reason for their introduction. We have some sympathy with the strategy and welcome the exemptions. However, I have a large number of detailed comments and questions, and I hope noble Lords will forgive me if I rather exceptionally give the pedantic side of my nature a stroll this evening. Much of the forensic work on this has been done by my researcher, but I received letters from the British Metals Recycling Association and the Community Composting Network. I noticed the Minister made special mention of these two elements. Their involvement and concern is interesting as it indicates that although what they do is currently seen as virtuous, and is encouraged by the Government, they are anxious about the impact of the regulations. The metal recyclers are concerned that these regulations will reduce capacity and increase costs and burdens for no public or environmental benefit. The CCN is rightly concerned about the impact on community food waste composting schemes. These prize-winning schemes are now obliged to pay for the most expensive permits. I shall not go into the detail of their letters because, from the way in which he introduced the regulations, the Minister is aware of this subject area. I hope it may be possible to revisit them in the interests of allowing the small-scale operations of the Community Composting Network to continue without unnecessary burdens.
The regulations come into force on 6 April 2010, which is some time ahead. Are the Government expecting difficulties? Are there any hidden nasties that they are likely to have to deal with? The document is complex and amends a number of previous permitting regulations. It is difficult to follow. There is no contents page or separation of the major chapters. Page 6 contains the place for the signatures to the regulations and the start of Schedule 2. Page 12 has a main heading, “Schedule 2”, and the start of Schedule 3. Page 51 has the end of Schedule 3 and the start of Schedule 3A. The presentation is not easy on the eye. The Government talk about light-touch regulation, but this is heavy-going regulation.
I shall go through the regulations page by page. On page 2, Regulation 2 amends Regulations 3 to 12 of the 2007 regulations. That is an interesting observation. On page 4, do the final two lines under the table mean that Schedule 3 to the regulations currently in place will be succeeded by these regulations on 6 April 2010? Midway down the page, there is a line:
“‘previous Schedule 3’ means Schedule 3 to these Regulations as it had effect on 5th April 2010.”.”.
It is confusing reading. I am not entirely sure whether “these” refers to the regulations before us or to the 2007 regulations.
I note on page 4 the exclusion of mushroom compost from the list of excluded activities, which the Minister mentioned. Why have the Government done that? What is the reasoning behind it and have the Government considered the implication for mushroom producers of this change?
On page 5, there is a mention in paragraph 12(2)(k) of the “appropriate authority” under the regulations. Who is the appropriate authority? There is no definition of what an appropriate authority is. Is it the Secretary of State, the Welsh Government, the Environment Agency or some other such body? There also appears to be some confusion on this page between the regulations of 2007 and 2009. When the regulations are consolidated, it would be useful if it were made clear to which previous regulations the text refers.
I turn now to page 6. What is the significance of and meaning of the inverted commas before the words “Schedule 2”? They are not closed off anywhere and it seems a rather strange compositional idea to have included them in the text. Paragraph 1 refers to the waste mobile plant, which,
“has the meaning given in regulation 8(4)”.
Where is regulation 8(4)? It certainly does not exist readily for me to be able to point it out within these regulations.
There is also a question about the whole business of the relevant authority. What sanctions apply in the case of invalid registrations? Who will carry forward the failure to register an exception? Apparently, it is the local authority in whose area the operation is first carried out. Can that always be proved or demonstrated? It must be quite difficult to police and local authorities may have difficulty in operations that spread over local authorities.
At the bottom of page 7, the regulations state:
“The information in this sub-paragraph is the name and business contact details of an individual officer or employee designated by the establishment or undertaking to be the primary contact for the purposes of registration”,
which is obviously trying to pin the registration to a particular individual. I am sure that the Minister will understand why that is there, but it will lead to an awful lot of bureaucracy if individuals change and the responsible person changes within an organisation. Would it not be better to make it possible for people to be designated not only by name but by function within an organisation?
Turning to page 8, new paragraph 7(2) states:
“Any other registration is valid until the end of validity of the first registration made in relation to the establishment or undertaking”.
Are registrations time-limited? What is the meaning of the “end of validity”? I have read and reread that and cannot work out where that phrase fits in and to what it refers.
“Register of exempt waste operations”,
on page 9, is something that we support. We believe that it is necessary within the framework of regulation such as this to have exemptions, but:
“The exemption registration authority must ensure the register”,
contains the relevant particulars,
“within 5 working days of the date that it receives”,
from an establishment an undertaking to be registered or renew a registration. There are not many activities within the local authority that are time-limited to five working days. Why is this particular thing so important that such an exceptional timetable should be imposed? I am all in favour of efficiency, but the administration of this may put a lot of local authorities under considerable pressure. A lot of work is involved in registering these exemptions.
On page 10, there is reference to the matters affecting national security, which it is right and proper should be a consideration. Under Regulation 11(4) for the first time and, subsequently, under paragraph (6), there is a reference to a person. Who is this person? Is it any person or a significant person? Is it a person of authority; in which case, what authority? Could it be the person next door? This rather strange phraseology is lacking in precision as to the nature of the person. How many of these exemptions have been thought likely to occur? If the Environment Agency has to deal with more than 300,000 septic tanks—the Minister and I debated the whole business of registration of septic tanks—we know that there will be many more as a result of these regulations. It is a major bureaucratic task, particularly if it is to be done properly and efficiently.
Paragraph (12) requires people to record, in the case of an exempt waste operation,
“the quantity, nature, origin and, where relevant, the destination and treatment method of all waste disposed of or recovered in the course of that operation”.
If this is supposed to apply to farm waste, what is this? Is it cart loads or weight? Surely, the Minister does not really anticipate that farmers will have to go to a weighbridge to weigh the muck before they put it on the field or the packing house waste before they replace it. I cannot imagine that that is the case. Unless record keeping is done for a particular purpose, it can often become abused. It either has to be done properly or not at all. It is hard to see how this regulation can be done with any precision, in which case it might be better not to bother to try to do it.
Under Regulation 13, records will have to be inspected. It states:
“Every exemption registration authority must carry out appropriate periodic inspections of establishments and undertakings carrying on exempt waste operations in respect of which it is the … authority”.
That could be a very large number of establishments. Where are the personnel coming from? Are there not already enough inspections on farms, for example?
I turn to page 12 to discover another pair of inverted commas before Schedule 3. I mentioned inverted commas before in connection with Schedule 2. Then I came to page 14, which refers to waste lagoons. Why would the public want access to a lagoon, slurry pit or down? It says that the public should not be able to obtain access to the waste. If the lagoon or pit is on the farmer’s property or behind a fence or wall, the public cannot be said to have access in any legal sense. Will that be sufficient? Here it does not say “legal access”; it refers only to access to the waste. That could be held to be a very different thing. Who is going to pay for the closing of these storage areas?
At the bottom of page 14 and the top of page 15, there is a very untidy bit of printing. There is a line at the bottom of page 14 and an open space at the top of page 15; the composition of it is not particularly good. On page 15, Table 1, code 020103, why is plant tissue waste and dredging spoil included in a table that is otherwise devoted to inert material? There are several references, other than those mentioned in 170505, but I have been unable to find 170505 in any other table in the regulations. Does it exist? Perhaps the Minister will tell us what it refers to.
On page 16, paragraph U2, code 160103, why is there a limit of 50 tonnes on the amount of baled tyres when the top of page 19 refers to 40 tonnes off tyres when they are in a retaining wall? Page 19 refers to having 40 tonnes of end-of-life tyres. That seems a bit inconsistent; I cannot understand why 50 tonnes is considered to be okay in one place and 40 tonnes is the quantity in another. That rather suggests to me that some of these figures have been plucked out of the air, rather than reasoned.
I turn to the burning of waste, such as timber, in paragraph U4 at the top of page 17. There is a plant in Troon; I understand that Scotland is not part and parcel of these regulations, but I know of a yard that accepts all the cut timber from Arran, takes off the bark and trims the side branches and then planes or logs the trunks and has heaps of different kinds of processed wood in a huge yard, protected by a chain-link fence with double gates and a lock. The flood bank between it and the sea is higher than the piles of wood probably 50 yards away and used by the populace to walk their dogs and push their prams. Would that situation be considered secure? If not, are the Government calling for small-scale operations to be run on tighter or higher standards than commercial ones? It says that waste should be stored in a secure place, but how will that be defined?
I note, too, that 0.4 megawatts is the standard for which exemptions will apply, but why has that figure been chosen? Why is it not 1 megawatt or 0.25 megawatts? It will be only a small-scale operation if it can use only a maximum of 50 kilograms an hour, as it says in paragraph U4(3)(a) on page 17.
Page 18 refers to reseeding waste water treatment plants. Under paragraph U6(3)(b), the specific condition is that,
“the waste was not produced at the plant”.
Does it have to be moved and fresh brought in? Why is it that the waste produced at the plant cannot be used for reseeding?
I have mentioned the whole question of tyres, on page 19. I notice the enormous differential between stones and bricks capable of being used in their existing state only—in other words, heaps of building materials—which are limited to 100 tonnes in a pile, and blast furnace slag and stones only, for which the figure is 50,000 tonnes. Surely these materials are essentially very similar, yet the variation in the amount of material that is allowed to be stored in one place is considerable.
We saw the quantity of mushroom compost allowed earlier, and here we have 1,000 tonnes of mushroom compost able to be stored. I wonder how all these figures are tied up and who has gone through and audited them to make sure that there is a certain rationale behind them all.
Perhaps the gem in these regulations is on page 20, already referred to by the Minister, about lion faeces. The Minister has handled many things for this Government. I should think that this is the first time that he has found himself having to handle lion faeces and argue why it should be limited to five tonnes, whereas sheep, rabbit or deer faeces can be limited to 100 tonnes. Where is the logic in this? Does the lion limit relate to the ferocity of the beast when compared with the rabbit? How were these figures calculated and why did the Government see them as different? Are there any other animals? These are just four animals out of the animal kingdom that happened to find themselves distinguished by being mentioned in these regulations.
I had a lot more that I could say, but I do not really want to carry on going through this in detail. I hope that I have made the point that there are inconsistencies in the statutory instrument that need to be addressed. These are real concerns to the many enterprises working in this area who may well find themselves on the wrong side of these regulations. I hope that the Minister will be able to satisfy us that his department will be looking at them before they produce the consolidated regulations, which I understand will be early in the new year. I wonder what will be added, amended or deleted, and how easy it is going to be for noble Lords looking at them again to understand them. I hope that the presentation of the new statutory instrument will be a good deal more straightforward than the current one.
I hope that I have adequately drawn the Grand Committee's attention to what I see as the arbitrariness in these regulations. My main question is whether the waste directive requires the maintenance of a register of those carrying out exempted waste recovery or disposal operations, because that is a heavy duty that is being imposed on people who are by definition exempted. I have very serious doubts about the ability of local authorities and the Environment Agency to maintain a register in accordance with the terms laid down without having to spend a lot of money, which we know is not there. I have even greater doubts that these regulations actually serve the public interest, but I have no doubt that they will greatly increase the regulatory burden on the vital recycling industry.
My Lords, I thank the Minister very much for his introduction of this instrument, and I commend the noble Lord, Lord Taylor, on his comprehensive analysis of it. It falls to me at very short notice to speak from these Benches, because my noble friend Lord Addington has had to attend to duties in the Chamber. However, I am delighted to do so, because it enables me to do something that I never dreamt I would be able to do, which is to share with your Lordships a true story. Many, many years ago—about 30 years ago—a very good friend of mine, Mr Roger Hayes, left school and went to work as a horticultural trainee for a London council. One afternoon in the summer he was working away, doing his job in the potting shed, when there was an almighty bang outside the window. He looked out to see flames shooting 30 feet into the air. He dialled 999 and asked for the fire brigade. It was all going very well until the lady from the emergency services asked him what exactly was on fire. He had to confess that some months earlier, the circus had come to town and had gifted to the local authority three tonnes of exotic animal dung. It had rested there in the yard at the park and, over time, the methane within it had accumulated to the point at which it spontaneously combusted and was about to set off another major fire. I think I know how the noble Lord is going to answer about why lion faeces gets a mention in these regulations. That is a true story.
I am delighted to be speaking on these regulations for a couple of reasons, which will become evident in my very short speech. These are the latest in a series of environmental permitting regulations from 2007 and 2009. They are all due to be included in consolidating regulations, and the environment planning regulations 2010 will come into force on 6 April 2010. In fact, these regulations will not come into force until that date, and they will exist in law for only a very short time before they are consolidated into the new regulations.
The Government have failed, despite a great deal of consultation, to reach consensus in two areas that concern us. We are not clear why the Government are insisting on pressing ahead with these regulations four months before they come into force, rather than using the time to make more efforts to find consensus with the operators. The two areas of dispute, as the noble Lord, Lord Taylor, said are metal recycling and composting.
It is obvious that both those areas can and must make a major contribution to the objective of a zero-waste economy, as part of the overall strategy of carbon reduction, recycling and waste reduction. It is worth noting that it is 30 years since the Liberal Party, of which I was a member, adopted a policy of zero waste. It is very nice to see other parties slowly catching up with us.
It is equally obvious that inappropriate systems of metal recycling and composting have the capacity to cause real nuisance to residents. No one wants a scrapyard next to their home, and in the case of metals we all know about the problems of theft and illegal trading—for instance, stolen fencing and gully grates. We agree that there is a real need to stamp out illegal operators. The proposal for an enhanced public register of exempt businesses will help with this, but more and better co-ordinated resources by the police and enforcement agencies is also needed. What estimate has been made of the capacity of local authorities to enforce these regulations?
The danger with the regulations as they stand is that they might result in unintended consequences of less metal being recycled, and they may even tempt some small businesses on the margins to use the illegal sector.
Composting is a tremendously important subject. I, too, have received the briefing from the Community Composting Network. Community composting schemes, where they exist, provide a means of removing and using vegetable waste in areas where composting would otherwise be impossible or unlikely—in the kinds of urban areas where there are very few gardens, for example. Noble Lords will know that there is a specific campaign in London at the moment targeted at enabling people who have very small gardens, or indeed sometimes just have balconies, to grow more of their own vegetables. Having a resource such as a community composting scheme is very important. I listened very carefully to the Minister’s opening speech and I noticed that he talked about commercial-scale composting. I suggest that there is a difference between commercial-scale composting and commercial composting. There are a number of community organisations that encourage composting on a very large scale. They do not do so for commercial benefit; they do so for other good. The Community Composting Network is one such organisation. They are concerned that compliance with a threshold of 10 tonnes of waste at any one time will cause problems for their schemes. They have made the argument for a 50-tonne limit. It would be interesting to hear from the Minister what was the clear evidence-based justification for the Government proposing a limit of 10 tonnes. What efforts have the Government made to draw a distinction between commercial-scale composting by commercial operators and composting by not for-profit organisations?
It is estimated that the cost of registration, as proposed by these regulations and others, would mean that local community schemes would have to find between £7,500 and £15,000. That is a considerable sum for small community organisations. Even the proposed permit of £1,590 in the first year could be prohibitive and prevent people setting up schemes that we know have an environmental and social value.
I end by making a plea to the Minister to consider whether, given the four months that remain, it might be possible to engage in further discussion about these regulations and to see if it is possible to come to a consensus that would enable schemes which, for all sorts of other reasons, not least their health benefits, we all wish to encourage.
My Lords, I have listened to this, not being part of the Bill team. I have been part of the environment team in the past. We are in Grand Committee and bound by its rules. This is a classic example of legislation that should never have come into Grand Committee. It should have been taken on the Floor of the House in a much more open way. We cannot divide in here and we would have to cause a significant upheaval if we wished to have a Division on this legislation now. Having listened to the wonderful dissection of this legislation by my noble friend and supported in many ways by the noble Baroness, Lady Barker, from the Liberal Democrats, I have to ask the Minister to be gracious enough to take this away and do a lot of work with it and give us another opportunity to go through it before it comes to the Floor of the House to be passed, otherwise I believe he will risk losing a Division in the House when it comes back.
I hear what the noble Lord has just said. I understand the seriousness with which he approaches these issues, as do we all, but I hope that I am in a position to give such reassurances about the regulations as to make his rather nuclear approach to them seem unnecessary. I hope that he will feel that we have made enough progress, given our consultation in preparing the regulations. We all recognise that what is involved here is a shift of a boundary. As with any boundary, there will always be concern that, just across one side, the case is almost the same as on the other—that is in the nature of the issue. I wanted to emphasise in introducing the regulations that we are concerned both with rationalising the present position so as to exempt that which can be exempted and with environmental objectives, which I think are subscribed to in all parts of the House.
I want to reassure the noble Baroness, Lady Barker, on commercial composting by small community groups. A cost may be involved in applying for the permit, but community groups also have a responsibility for the environment—an issue which I know the noble Baroness holds dear. We need controls to ensure that the environment is protected, because there have been instances where the operations of community groups have produced problems in the local environment; hence the necessity for us to bring them within the framework. I understand entirely the distinction that she made between a commercial operation and a small community group being involved in an activity which has a commercial dimension to it but is on nothing like the same scale. However, there are obligations with regard to the environment in that process, which is what the regulations seek to address.
I am torn between two responses in this speech. The noble Lord, Lord Glentoran, demanded of me that I make a defence of the principle of the regulations, the importance that we attach to them and the extent to which we have carried out the necessary consultation, yet I heard from his noble friend what he rightly called a precise “dissection” of where explanation is necessary; that is, on almost every page of the regulations. So it is a fairly tough call, but I shall do my best.
I shall give the general proposition, which the noble Lord, Lord Taylor, both hinted at and disregarded when he outlined a number of his anxieties about the regulations. The regulations amend those of 2007. The provisions will be incorporated into the regulations of 2000. The mystical inverted commas are there to indicate that they will be included within existing regulations. I assure the noble Lord that, when the consolidated version of the 2000 regulations is available, nearly all his anxieties about text and ease of understanding will be allayed. I have the greatest sympathy with him and commend him on his research—if anyone else helped as well, I hope that he will commend them on behalf of the Committee for their diligent work. The textual complexity reflects the fact that these regulations amending other regulations must be put within that context. That is why some of the difficulties occur, including our dear friends the inverted commas, which are a metaphor for the problem as a whole.
I take the obvious point that the noble Lord made about being unsure what the appropriate authority was and how it was defined in the regulations. However, the appropriate authority is defined in the 2007 regulations, into which these provisions fit. Of course, as he would expect, the appropriate authority is the Secretary of State, or Welsh Ministers in the context of the Welsh provision. That problem obtains right the way through these issues. I shall address his substantive points in a moment. However, he identified the fact that these regulations are far from being a clear read and that one can identify references which are difficult to analyse. I repeat that these are amendments to the 2007 regulations and are incorporated within them. That is why the appropriate authority is not repeated in these regulations because that is incorporated in the ones which clearly identify that authority. I hope he will accept that I am not in a position to dot every “i” and cross every “t” in relation to how these regulations read.
The noble Lord asked a number of important and substantive points, one of which concerned mushroom compost and why it was not included under the exemption operations. Composting operations will be required to be regulated by local authorities through a Part B permit, as is the case now for off-farm commercial composting. We deem that mushroom composting needs to be brought under greater control because of the problems it causes for the environment. We have had complaints about this form of waste and we are responding to them. The noble Lord may say that he has never been upset by mushroom compost in his life. I bow to his experience, which, I have no doubt, is greater than mine. However, I draw deep on my 16 year-old daughter’s experience of spending a week on a mushroom farm. She said to Dad, “never again”. She made the point that mushrooms were good to eat but were not necessarily the most congenial thing with which to be involved every hour of one’s working day. As the noble Lord will appreciate, the problem with compost is that it can lead to persistent complaints from local people. That is why we need regulation.
The noble Lord referred to validity of registration in Regulation 7(2). That gives effect to the three-year registration period for all operations carried on by operators. That is a general basic rule with regard to the operation of the regime. The noble Lord said that Regulation 10 concerned national security. Any person can apply for a direction. There is no particular requirement about who can apply for that. That provision is consistent with all other legislation. He asked about the responsible person on page 7 of the regulations. I understand his point entirely; you name someone and that person leaves the organisation the following day and the business has to inform the authority who the relevant person should be. The reference to the name of the person is merely an administrative concept to provide a contact for queries. It is not part of the information that will appear in the public register, but it is important. It might not be a person. It might be an officer or whatever it is defined, but the noble Lord will recognise that it merely identifies to whom the authority should make the appropriate approach.
I have several other references in great detail here, but they all fall within the broad framework that these regulations must be placed within the context of the 2007 regulations that they are amending. They are nothing more than that and are no more sinister in their drafting. If the noble Lord is saying that he cannot accept this type of drafting for regulations, that would put quite a burden on the Government. If we had to provide with every regulation the finished product of the regulation that we were amending—if that is what is being considered—the person moving the regulation would have to separate the whole time the difference between that which is already law and established and that which is being changed. No Government have done that before. It is an interesting concept but not one that I favour. I have enough problems dealing with regulations on this basis let alone the more onerous one.
The Minister knows, of course, that a consolidated statutory instrument will come out of this. That is the whole purpose of the exercise. It would greatly reassure us if we knew that that consolidated statutory instrument could be debated on the Floor of the House. If that were possible, all these matters would be much clearer and noble Lords would have proper control over the finished documents, whereas the Minister has admitted that it is quite difficult for noble Lords to fully understand the implications of everything that is here.
My Lords, that is a good try. It is difficult to understand, but as I just indicated the only alternative is enormous. Already, at the stroke of a pen and as the result of one phrase, the noble Lord would double the amount of work relating to this particular regulation if every regulation or order that comes before the Committee which amends orders from the past needs to be considered in those terms. I am afraid that no Government would think that that was the way to go about amending. I sympathise with the difficulty and I enormously applaud the rigorous way in which he sought to overcome those difficulties and identify the real issues as well as the drafting ones. But if he will forgive me, I will ask him to accept the drafting and I will try to deal with the real issues.
The noble Lord mentioned the thresholds for anaerobic digestion. The limit was developed in conjunction with the National Farmers’ Union and the biogas industry and is deemed to be an appropriate threshold for small-scale on-farm biodigestion. That is an agreed position with the interests concerned.
I was asked why plant tissue waste is included in the inert waste section. The waste type issue will be subject to review and, if deemed necessary, we will amend that at the earliest opportunity. The noble Lord has a point there. We may need to reconsider that. On the issue of plant codes, the references on codes are set out in the list of waste regulations. Again, I agree with the noble Lord. The problem is one of cross-referencing. That is the difficulty. There is nothing more sinister to it than that.
The noble Lord asked about the difference between the two concepts of tyres, the different forms of storage and why they had different limits attached. The tonnage allowed depends on the use to which the bales will be put. They are stored in different ways and are intended to be used in different ways. That is why, in certain circumstances, one has to have limits of 50 tonnes and 40 tonnes in the regulations.
The noble Lord asked a general question about quantities, and the noble Baroness identified a particular dimension on which, as she rightly indicated, I do not have much experience. For the most part, the quantities have been arrived at following assessment of the risk and discussion with businesses that carry out the activity. We have exemptions from European law, and are much more flexible than it might have directed. One of the advantages of the way we have gone about this is the flexibility, but we have to stipulate maximum quantities under that law, and that is why these figures are there. There is bound to be a certain arbitrariness about that and it is, of course, bound to be a matter of judgment.
On access and security, all page 14 does is set out a definition of what is secure for the purposes of interpreting storage conditions. On waste not produced at the plant, which is covered on page 18, to which the noble Lord drew attention, I emphasise that this exemption is to enable water treatment plants to reseed the treatment process. To do that effectively, they need to bring waste in from other plants. The exemption has been developed with the full input of the waste water industry. We have had extended discussions on that. I hope the noble Lord will accept that point.
The waste directive will require the registration to be updated. It will be updated as operators reregister every three years. The noble Lord will recognise that three years is in the regulations.
I hope I have answered the questions that the Committee raised. The noble Baroness, Lady Barker, and the noble Lord, Lord Taylor, raised broader issues. I need to put them into context. The risk-based approach that we are taking and the environmental principles we have used to determine that operations should or should not be exempt now and in the future have received overwhelming support. I have indicated how narrowly focused these changes are. We believe that the changes to waste exemptions will benefit the industry and regulators and will encourage genuinely low-risk waste recycling and recovery operations. Those who will benefit include a wide range of businesses, particularly the smaller enterprises to which the noble Baroness referred. Our estimate is that these measures will lead to savings of around £255 million over 10 years, which is not a negligible amount. The overwhelming majority of those that are currently exempt from the need for a permit will continue to be exempt, and many others, including some of the sectors mentioned today, will benefit from a new, low-risk exemption that will be free to register.
The noble Baroness raised metal recycling. We are aware of the metal recycling industry’s concerns that the revised exemption will be onerous for those who will no longer benefit from it and will need a permit. I am aware of the great contribution made by the metals sector and support it wholeheartedly. We have given a commitment to take measures to encourage legitimate operators to regularise their planning status within the current laws, which they must do not only for their own benefit but to ensure that local authorities reflect the need for metal recycling sites in their waste plans. So that is the advantage of the obligation—the information that local authorities collect. We also support this professional industry, and its competence to operate its sites can be demonstrated in a way that is appropriate for it.
Reference has also been made to composting. We have significantly reduced the size, scale and scope of the composting exemption. Unfortunately, many composting sites merit much greater assessment and inspection than is provided under the current exemption. This will rightly lead to commercial-scale operations having to provide some of the same infrastructure and pollution-control measures that other waste treatments are required to meet and reduce the high level of concern surrounding some operations. It will be appreciated that a balance has to be struck between the interests of those who are seeking to increase composting—we all see the value of that—and the fact that there are dangers in local environments from composting that is not regulated, which is why we have put things in a framework.
This has been an intensive debate. I am not sure that I was fully equipped to deal with quite the degree of precision with which the noble Lord, Lord Taylor, addressed the regulations, and I congratulate him on the intensity of his scrutiny, but I hope I have done enough to allay his concerns—and, even more, to allay the concerns of the noble Lord, Lord Glentoran. I commend the regulations to the Committee.
National Assembly for Wales (Legislative Competence) (Welsh Language) Order 2009
Considered in Grand Committee
My Lords, this order has already been approved by the National Assembly for Wales.
I begin by putting on the record this Government’s strong commitment to the Welsh language. It plays an essential role in Welsh society, and is of course the language of choice for many people in Wales. This LCO is therefore of unique importance, and I am pleased to see a number of noble Lords eager to participate in this debate, which follows the scrutiny undertaken in the other place by the Welsh Affairs Committee, by this House’s Constitution Committee and by a committee of the National Assembly for Wales. I commend all those committees and those who worked on them for their scrutiny, which has helped to build a broad consensus of support for this LCO.
The Government’s approach is informed by four principles: first, that the National Assembly for Wales is the natural home to legislate in relation to the language. It is logical and appropriate for the nation’s legislature to be able to pass laws on the Welsh language.
Secondly, the order builds on existing statute in relation to the language and in particular on the Welsh Language Act 1993, with which I know a number of noble Lords here today are more than a little familiar. The Act provided a firm basis for the language to develop, ensuring that organisations providing services of a public nature implemented schemes to carry out some or all of their business in Welsh. These provisions now need updating to better fit with current times, but the order retains the focus of the 1993 Act on key public services provided by public authorities or by private companies.
The third principle, which I believe is crucially important, is that we strike the right balance in going forward between the interests of those whose first language is Welsh, and who wish to conduct their daily lives in that language, and the large majority of people in Wales who do not speak Welsh. That figure, as all Members of this Committee will know, is 80 per cent—a significant number whose interests also need to be considered.
The final principle is that any duties should be applied reasonably and proportionately. The Welsh Affairs Committee in the other place agreed this principle in its excellent scrutiny report. The principle is particularly important in the context of securing the support of business and enterprise in Wales for these proposals. No one would want to see the private sector discouraged from investing in Wales because of burdensome Welsh language duties being inappropriately imposed on business. What is right in respect of a large public authority need not necessarily be right for a smaller private sector company and, recognising the levels of unemployment in Wales, we all know that the Welsh economy needs to encourage as many of those small businesses as it can in those circumstances. What is more, what is right in Meirionnydd may not be right for Gwent, so we have to take those issues into account.
This order is based on clear principles and a common-sense approach to developing the language. Its drafting reflects the real concerns of some about its scope, but at the same time meets the pressures for change. I believe that the order strikes the right balance between the complex and sometimes competing interests which the Welsh language engages. It has ensured a broad consensus on how best to proceed and works in the best interests of everyone in Wales.
The order would allow the National Assembly to legislate to promote or facilitate the use of the Welsh language, and allow the treatment of the Welsh and English languages on the basis of equality. That is based on wording from the Welsh Language Act 1993. It excludes, as noble Lords will know, the use of Welsh in the courts and prohibits the National Assembly from imposing duties in relation to the Welsh language on any body other than those falling within the 10 categories listed. Those categories include: public authorities; bodies established for specific purposes by royal charter; bodies which receive public money amounting to £400,000 or more in any financial year, and organisations—including private ones—that provide key public services including electricity, gas, water, telecoms, post, bus and rail services. As I indicated, some of those are private, some are public and one or two almost escape definition, but I shall not get into that now.
The order includes a crucial safeguard enabling bodies in those categories to challenge the imposition of Welsh language duties on grounds of reasonableness and proportionality. This is a robust safeguard against any inappropriate imposition of such duties. It ensures that the reasonableness of duties will be a key consideration in developing Assembly measures, and provides an important reassurance against disproportionate obligations being imposed on any body, especially smaller organisations, whether they are charities or companies in business sectors such as mobile telephony or energy.
I believe that this order puts in place a framework for the devolution of powers over the Welsh language to the Assembly which is robust and which provides for a strong and healthy future for the language, building on the achievements since 1993 in a common-sense, evolutionary way to make the language a source of pride for everyone in Wales, whether or not they actually speak Welsh. It provides a firm foundation on which the Assembly Government can build in developing their proposals for an Assembly measure to take forward the language. I hope noble Lords will appreciate the safeguards which are there regarding the proposal and that this, almost above all, ought to be a matter for the Welsh Assembly rather than the UK Parliament to decide, and accordingly I beg to move.
I thank the noble Lord for having presented this statutory instrument as well and as clearly as he has. The Welsh language is a very emotional business, as is the Irish language. I come from Ireland, as most people here will probably know, and I love the Irish language—in the same way as I am sure all Welsh people love the Welsh language. Long may they both live. That is my personal and, I think, my party’s stance.
I urge some caution, because this issue has difficulties, pitfalls and costs. I also suggest that, as far as possible, we look at it in a voluntary way. It is absolutely right that the Assembly has the power to do what it will with the language. As the Minister said, there can be no other place to run and manage the Welsh language than the Welsh Assembly. That has to be central to all our thinking.
The Conservative Party has a proud record on the Welsh language. The Welsh Language Act, piloted through Parliament by my noble friend Lord Roberts of Conwy, has done much to generate good will for the language, with the consequence that increasing numbers are using it today.
The 1993 Act has always encouraged participation on a voluntary basis. It is applicable to public bodies but other organisations have adopted their own Welsh language schemes.
Although we should not second-guess what the Assembly Government will do with the competence transferred to them, it is clear from the list of bodies that could potentially be subject to the legislation that they intend to extend compliance with Welsh language schemes to bodies other than public bodies. These include gas, water and electricity suppliers, telecommunications companies, bus and railway companies and post offices. It would be a concern if, by imposing duties on such a wide list of bodies, the Assembly Government were to do anything to damage the good will that has developed towards the Welsh language since 1993.
The draft LCO also provides that no duties may be imposed on any person under any legislation that might be brought forward by the Assembly Government under the provisions of the LCO unless there is a means to challenge those duties on grounds of reasonableness and proportionality. That is all very well, but it appears that the LCO contemplates the setting up of a significantly large bureaucracy to administer the Welsh language legislation.
One must also have regard to the current adverse economic climate. Complying with a Welsh language scheme will undoubtedly cost a lot of money. Consequently, the Welsh Assembly Government should be very careful about imposing duties on bodies not currently subject to compliance with Welsh language legislation if to do so would potentially prejudice the viability of an otherwise successful organisation. This is where clear and positive thinking has to be divided from emotion, desire and passion.
The LCO also provides that duties may be imposed on persons providing services to the public who receive public money amounting to £400,000 or more in a financial year. It is unclear how the figure of £400,000 has been arrived at. The figure of £200,000 in the original draft order appears to have been plucked out of the air, and the new figure is clearly simply that previous figure doubled. I am afraid that the Minister is having a busy time with numbers this afternoon but perhaps he can advise us how that figure has been arrived at.
The legislative competence extends also to imposing duties to comply with Welsh language schemes on persons engaged in central banking. Given that there is only one central bank in this country—namely, the Bank of England—it is hard to see why competence should be sought in respect of that body. Perhaps the Minister could explain the reason for including the Bank of England within the ambit of the order.
There is also a significant concern with regard to post offices. Most post offices in Wales are run by sole proprietors or, frequently, husband and wife teams. They are frequently not Welsh-speaking; indeed, traditionally, running a sub-post office has been regarded as a semi-retirement job for people from across the border. It would be unfortunate if the imposition of compliance with a Welsh language scheme were to deter such individuals from setting up in business in Welsh villages. It is all very well having an appeals process, but it is unlikely that prospective purchasers of sub-post offices would wish to go through such a process and the very existence of an appeals process might amount to a deterrent.
To summarise, the Welsh Assembly Government should think carefully as to whether, and when, they should impose new duties in respect of compliance with Welsh language provisions. The current legislation has approval and public support. It has made the Welsh language a vibrant part of Welsh national life. The Assembly Government should think carefully before doing anything at all which would damage the good will that the language currently enjoys and which might ultimately prove counterproductive.
My Lords, this is one of the most extensively considered orders ever to come before your Lordships, as we can see from the excellent Explanatory Memorandum. It has been subjected to pre-legislative scrutiny in the National Assembly and in the House of Commons Welsh Affairs Select Committee and it has been debated in the Welsh Grand Committee. It has had a very full breakfast of consultation and there is probably more to come as Assembly measures based on the order take shape.
All that is entirely appropriate, given that the order will transfer more powers relating to the Welsh language—our most precious possession—from this Parliament to the National Assembly. As a humble promoter of the last Welsh Language Act to pass through this Parliament—the Act of 1993—I am glad that the principles of that historic Act, which has served Wales and the language well for the past 15 years, are to be preserved.
We sometimes forget, under the baleful shadow of the so-called Tudor Acts of Union which discouraged the use of Welsh, just how much this Parliament has contributed positively to the preservation and promotion of the language. It was an Act of 1563, promoted by Humphrey Llwyd of Denbighshire in the Commons and Richard Davies, Bishop of St Davids, in the House of Lords that secured William Salesbury’s translation of the New Testament and Davies’s own translation of the Book of Common Prayer for use in Welsh churches by 1567. We had to wait a few more years until 1588 for a complete translation of the Bible, by William Morgan, but it stemmed from the same inspirational source. Richard Davies came from the Conwy valley, as did William Salesbury and William Morgan. All were patronised by the Wynn family of Gwydir—no relation to me.
Of course, a number of other important Acts of Parliament have ensured the language’s rightful place in court proceedings, for example, and I am glad to see them noted in the Explanatory Memorandum.
The Welsh language is part of British as well as Welsh heritage and has been highly valued as such. In spite of all the consideration that has been given to this order, there are still some potentially controversial issues, as my noble friend Lord Glentoran said, and some could become sore points. But I remind myself that this is a permissive order and that the Welsh Assembly still has to decide precisely how to legislate and whom the legislation will affect within the parameters laid down here.
I understand that the Minister most closely concerned at Assembly level, Alun Ffred Jones, is to hold meetings in different parts of Wales to test people’s feelings and to elicit their views and wishes. I shall content myself with uttering a few caveats, because language is a highly sensitive issue and it is easier to offend and antagonise people than it is to please them. Without popular good will and support, progress is impossible. So far, we have been able to nurture and grow that support in Wales and to benefit from it.
Mention is made in the memorandum of a desire to describe Welsh as an “official” language. The matter was debated in your Lordships’ House and the other place in 1993 and occasioned Divisions both here and in the Commons. The Government defeated the amendment by a majority of 39 here and 44 in the other place because no one knew what the implications of such a statutory declaration might be. English is not declared to be an official language anywhere in our law, I am told. I would advise those who may be considering reopening that debate to read the parliamentary proceedings in both Houses and to re-examine the arguments for themselves before they step into that minefield.
I am glad that the order is very specific as to the persons who may be affected by having duties laid on them and that there is a right of appeal, with tests of reasonableness and proportionality being relevant. We have to thank the Welsh Affairs Committee for those improvements. The last thing we want in this context is a clutter of objections to requests for language schemes and the whole paraphernalia and bureaucracy of a seemingly endless appeals procedure that is too much in demand and may result in enforcement. The mechanisms of appeal and enforcement have still to be established. Personally, I believe that enforcement is counterproductive and that the language stands to lose more than it has to gain if enforcement becomes the order of the day. Popular support for the language may be seriously eroded and, if that were to happen, it might be difficult to restore the spirit of good will that the language has enjoyed.
The proposed language commissioner will inevitably feature in this sphere, but we know little about his office and functions as yet. I hope that the commissioner will have a constructive role and that people’s worst fears will not be realised. The cost of new measures is another factor that will need to be taken into account, especially in the wake of the recession and the cutbacks in spending that will inevitably follow the Government’s pledge to halve the deficit. I understand that the Welsh Language Board has a staff of 70 at present. Are increases anticipated? The more persons included in the list, the more civil servants will be needed to supervise them and the greater the direct costs to those having duties imposed on them, their clients and customers. The costs will eventually be loaded on to the public.
I have one final point to make, which concerns translations. Almost all the schemes and duties involve translation, which has become an ever more substantial industry since the passage of the 1993 Act. Translation can be costly. Many are asking whether this represents the best use of resources and justifies the increased price of publication. The National Assembly itself has recently been agitated over the issue in connection with its official Record of Proceedings. There is no easy answer, but it is an issue that we must be aware of, especially when we include bus and train timetables, gas, water and electricity bills and Post Office matters that may be subject to Assembly measures. I am sure that the Assembly will consider that.
I reiterate that the language is a sensitive and potentially controversial issue. So, too, is legislation in this field. The 1993 Act was voted against at Third Reading in the other place by none other than Plaid Cymru; the Labour Party abstained. Now, 15 years later, I think that both parties would agree that the Act has done a great deal of good, raised the profile of the language and improved its status. There is enthusiasm for it, too.
The language lobby has traditionally been critical of central government, whichever major party was in power. Now its target will be the Welsh Assembly Government in Cardiff, as responsibility for the language has passed to them. However demanding that lobby is, I hope that the Welsh Assembly Government will never forget that you cannot force a language on people and that any progress made in the extension of its use must be because people really want it and regard it as a highly desirable asset for themselves and their children.
My Lords, it is very important that the noble Lord, Lord Roberts of Conwy, spoke early in the debate because clearly his detailed knowledge of the Welsh Language Act 1993 and—I think I am right in saying, his 13-year tenure as a Minister in the Welsh Office before devolution—
Correction. Fifteen and a half years is a tremendous service to Wales. Clearly, the noble Lord has outlined a great number of details from his own knowledge and his acute observations on this legislative competence order. The order comes via the Government of Wales Act 2006, which gave the Assembly the power to create legal measures, which in this case promote the use of the Welsh language throughout Wales.
We are considering this LCO and what will occur later with measures concerning the language. I especially welcome it, even though, as we have heard, the process has taken far too long. The order is now on its passage through this House and has been scrutinised in considerable detail, not least by the Welsh Affairs Committee in the other place. The Explanatory Memorandum states that:
“The primary purpose of the Draft LCO … is to provide the National Assembly for Wales with legislative competence in relation to the Welsh language”.
I have written beside that: “Big deal!”. In Wales, we will be able to legislate much more on the language. To be fair, however, it also says that it will concern the existing functions of Welsh Ministers and the Welsh Language Board, which, as we know, started in 1993.
The world has moved on a lot since 1993, particularly in the educational sector. Many more young people in Wales now speak Welsh. All my grandparents spoke Welsh but, as my family was in proximity to Merthyr Tydfil, much of that language skill was lost for two generations. I can speak some Welsh, and I can understand practically all of it, but I am very pleased to say that all three of my children speak Welsh fluently. That pattern has been repeated across Wales, particularly with the advent of ysgolion meithrin, which enable young children to learn the language at a very early age in preschool, which is when they absorb it like blotting paper.
The Welsh Not in the 19th century was a terrible thing, but the language survived. It has survived because of the activities of many people. In the 1980s, the 1970s, and even the late 1960s, there was the Cymdeithas yr Iaith Gymraeg, the Welsh Language Society. It was very unpopular in some places. However, it undoubtedly brought the language to the fore.
The good, detailed work done on the LCO in the National Assembly and here in Parliament by members of the Welsh Grand Committee and the Welsh Affairs Committee in the House of Commons, especially its chairman, Dr Hywel Francis, has made this LCO much more readable and understandable. The process has been long, but it is now much more objective.
In summary, we owe a great debt to those who have gone before us—those of all parties in Wales and those of none. Wales is always at its best when it unites across party divides. As for my own Liberal party, just consider what Lloyd George did to disestablish the church. I think also of my more recent colleagues, Lord Geraint and my noble friend Lord Hooson, not to mention the noble Lord, Lord Prys-Davies—who, happily, is here today. He has done tremendous work on this. The noble Lord, Lord Elystan-Morgan, has also taken a great interest. There are others whom we must not forget. The late Gwynfor Evans was a Plaid Cymru leader and a Welsh language campaigner who was prepared to go on hunger strike for a Welsh language television channel—a channel which has ultimately made a huge difference to people in Wales who can now access the language. I was recently talking to someone on the borders of Scotland, the secretary of a rugby club, and the only way he could see his local region play rugby was to watch S4C. Many English speakers who are fond of their national game can also access the Welsh language by this means. It has been a great uniting thing.
This instrument is passing through both Houses in a week when Wales’s First Minister, Rhodri Morgan, a great supporter of the Welsh language, is retiring. I thank him, too, for all the work that he has done to promote the cause of Wales and, especially, the Welsh language.
My Lords, like all other noble Lords, I welcome the draft order. I wholeheartedly agreed with the Minister when he said that if ever there was a devolvable responsibility—that is not how he put it, but that was the thrust of it—that should be transferred as generously as possible to Cardiff, this is it.
Indeed, I doubt whether there can be any challenge to that fundamental reality. There are 20 headings in Schedule 5 to the 2006 Act. Many of those, you might say, are almost exclusively Welsh, but in all those cases, there will be some cross-border effects, some knock-on effects that will not be totally confined to the land and nation of Wales. This is the exception. This is the 20th and this is exclusively a Welsh matter.
I want to disabuse anybody who subscribes to the idea that commitment to the Welsh language is in some way a sentimental or emotional matter. It may very well engender sentiment and emotion, but I would say that it is much more than that: it is a matter of truth and principle. The way that I would put the case would be this: I would say that every language is unique and priceless and part of the patrimony of humankind. That strange scholar, Dr Johnson, said that he was always saddened to hear of the death of any living language. When one thinks of it, every language in the world is a work of genius. Its nuances reflect the hopes, aspirations, fears, attitudes, mores and standards of those people who have spoken it and espoused it. It is as much a work of human genius as the best that has ever come from the hand of the artist, the sculptor or the architect.
It is in that light, I respectfully say, that one has to look at the responsibility of humankind in general for the Welsh language, as it has for every other language, and for the people of Britain in general, let alone the people of Wales. The generality of status is at the basis of our attitude to the language. The Welsh language is one of the oldest spoken languages in Europe. It has existed for about 1,500 years, and has a history that goes back, some say, to an origin as far back as the Himalayas. It is of Indo-European origin. It is a living language, spoken by 500,000 people. As the Minister rightly said, that is only one-fifth of the Welsh people; 80 per cent of them—2.5 million—do not speak it. In my case, it was a pure accident of birth and geography that I speak Welsh, as is indeed the case with one or two other Members of the Committee. I only hope that I would have had the courage and assiduity to learn it otherwise, but it was a fortuitous accident. It is still my main language when I am at home. It is the language in which I live practically the whole of my life when I am at home in Cardiganshire.
Nothing gives me a greater thrill than to hear people who are not Welsh-speaking, but who are members of the Welsh nation, refer to the Welsh language as “our language”. That is the attitude that will gives the Welsh language a possibility of remaining a vibrant, living thing in British life. The language has enjoyed a renaissance over the past 20 to 30 years, but its life is far from safe. The pressures on it are very considerable and only our best efforts will safeguard it. So if one lays down any conditions that stultify that possibility, one is doing the language a great disservice. There is a school of thought that says, “Well, you can make all the pious declarations you like in relation to the Welsh language. You can weep oceans of sentimental tears, but you shall not spend a penny of public money and you shall not place a single imposition on anyone. You shall not impose any burden that makes life even marginally more difficult for businessmen”. Saying that effectively writes “finis” to the life of the Welsh language. I am not suggesting that such a case has been deployed in the Committee today, but it is essential to remember that if we want a priceless treasure of humankind to remain, we have to pay for it. One appreciates how difficult it is to preach a sermon like this in the strained financial circumstances that exist at the moment, but it is right to remember the central reality of the situation.
On the content of this legislative competence order, I appreciate that it is very much the product of a compromise, but so many things in politics and in life are. For myself, I would probably have wished for a somewhat more adventurous approach than this, but we have to achieve the fine balance referred to by the Minister and the noble Lords, Lord Glentoran and Lord Roberts. It is very much a matter of balance. However, if on the one hand there is stodgy, unimaginative passivity, you will achieve nothing. You might as well say right now that we will let the Welsh language go. On the other hand, an overly aggressive and adventurous approach may create a wholly counter-productive situation.
No Act of Parliament or piece of delegated legislation can of itself save a language. All that statutory provision can do is create the conditions that make it possible for a language to thrive better than it would have done had one not resorted to the provision. It is on that basis that this matter takes the situation forward a little from the 1993 Act, which I regard as a very important milestone in the journey of the Welsh language through life. I appreciate that it gives quite substantial powers to the Assembly, which I am sure it will use sparingly and reasonably, bearing in mind all the time that goodwill will be the oxygen of life for Welsh in the years to come.
The one matter I would contend with is this. Nothing that we are doing today creates any legislation at all. If this order passes through the House of Lords without challenge, as I hope it will, all we will have done is peg out an area. It is for the Welsh Assembly to build a legislative edifice upon it. If the Assembly has no plans to start on that edifice soon, then this exercise will have been useless. However, I am sure that that is not the case and that the Assembly has plans that one trusts will be brought to fruition in the near future.
My Lords, I support this important draft order which has been requested by the Welsh Assembly, the highest political authority in Wales. However, I have one or two caveats—to which I will come—but I begin by paying tribute to the signal contribution of the teachers in the Welsh-medium schools, in particular, and the voluntary teachers in the nursery schools. Their contribution has been invaluable. The status of the language has been strengthened immensely since the passing of the Welsh Courts Act 1942 and, subsequently, the Welsh Language Act 1967, which was presented by the late Lord Cledwyn. Then, of course, came the important Welsh Language Act 1993, which was the creation of the noble Lord, Lord Roberts of Conwy.
When I look at the Welsh language scene in the round, three things stand out. First, more and more Welsh speakers in Wales are now demanding the right to live a full life through the medium of Welsh. This is fairly new. Indeed, I can recall how I avoided using the term “right” for many years because I thought it would be difficult to attain a consensus on that basis. However, I have come round to the view that there is a growing consensus in Wales that we ought to be constructing a framework of rights. Secondly, the Welsh language domains in north Wales and west Wales, which have been one of the most valuable assets of the Welsh language, but not the only one, are shrinking rapidly, with adverse consequences which we may not be able to assess fully. Thirdly, while the Welsh-medium schools—in south-east Wales in particular— are over-subscribed, with huge support from parents who are non-speakers but wish their children to have access to their linguistic heritage, it is an immensely difficult task to ensure that Welsh is a living language beyond the school yard. It is a daunting task which confronts us.
I am deeply appreciative of the time and resources given by the members of the Welsh Affairs Select Committee to the examination of the draft order. However, I must confess that I am confronted by a dilemma. I wonder whether the order has been over-scrutinised. On the other hand, I am bound to accept that its drafting has been improved as a result. In that difficulty, I content myself by saying that there is a special art to translating the language of politics into the language of Government and legislation, and it cannot be acquired overnight. The Welsh Assembly Government may wish to look at some of the difficulties—perhaps in their departments, perhaps in their legislative procedures—and if there are such difficulties, consider how to improve them.
I turn briefly to my two main caveats about the order. I regret—this will come as no surprise to the noble Lord, Lord Roberts of Conwy—that the phrase “official status” is not included in the document. I am aware that it has been claimed since the passing of the 1993 Act that the principle of equality of the two languages embodied in that Act confers the status of official language on the Welsh language. If that is the case, why not enact the principle in a declaratory statement? I am pretty confident that this issue will not go away, but I am concerned that more of our young people may sacrifice their careers in order to achieve that objective.
My second caveat arises out of the appearance of the word “freedom” rather than “rights” in Matter 20.2. “Freedom” is a novel word in Welsh language legislation. It is not defined in the interpretation clause. Moreover, I understand from our human rights lawyer that the word is threadbare of meaning in the context of this legislation. Interestingly, what the Welsh Assembly Government Minister for Heritage said in evidence to the Welsh Affairs Committee on 27 April suggested very strongly to me that he was not particularly enthusiastic about the terminology—references may be found in Questions 294 and 332 of the oral evidence. What is required is a carefully drawn framework of rights for the users of the Welsh language, rather than the vague concept of,
“freedom of persons wishing to use the Welsh language”.
Notwithstanding the caveats that I and others have, this is an important order, which will facilitate the continued regeneration of the language upon the path which began in 1942.
My Lords, in 1974 the special adviser to the Secretary of State for Wales, the noble and learned Lord, Lord Morris of Aberavon, was the noble Lord, Lord Prys-Davies. It might be said that his service to the Welsh language has been a life’s work. The noble Lord, Lord Glentoran, rehearsed the difficulties, pitfalls and costs of the order. I acknowledge the distinguished role in the governance of Wales of the noble Lord, Lord Roberts of Conwy. He was right to emphasise the great consequences of Bishop Morgan’s Bible. Certainly in the 16th and 17th centuries there were no referendums and no prolonged consultations. The noble Lord, Lord Livsey, said that the Welsh Not was a terrible thing, and he has an insight into our social and cultural history when he says that. I thank the Minister for his masterly opening. He trod carefully and had his brief at his side.
Here is history in the formal and simple words of the order: “Constitutional Law”, “Devolution”, “Wales” and “2009”. Those words are in the context of the speeches that have been made before my own humble words. With regard to context, as a humble Minister in the Wilson and Callaghan Administrations from 1974 to 1979, I had responsibility for the Welsh language in what was the original Welsh Office formed by Prime Minister Harold Wilson. When it was established in 1964, the Welsh Office was led by the first Secretary of State, the bilingual James Griffiths, who in the Attlee Government initiated the National Insurance Act. My reaction is to say that from little acorns do great oaks grow.
For a Minister 35 years ago, it was a difficult brief. The Government of the day, with no or very little majority, were harassed politically by Welsh nationalists and others, and the language and road signs were often in the front line of political skirmish and battle. Astonishingly, today in the 21st century the Welsh Assembly Government are a coalition of Labour and nationalists. I think that they are because today there is to be a new leader of the Welsh Assembly Government and, one anticipates, a new Government, perhaps with different personnel.
My summary is that one can only wish the order well and acknowledge that it is historic—the story of the language of our nation in modern times. Perhaps the Minister will write to me with a considered reply if he cannot give detailed responses today to my brief questions.
First, what was in the Wales-wide consultations? What was the stance of the Wales CBI? Is there, according to the CBI, a consequence for the small and medium enterprises where the order is concerned? It looks to be positive in paragraph 7.15 of the Explanatory Memorandum. Secondly, as a consequence, will there be a further impact on our universities? I should declare my interest as a university chancellor.
Paragraph 7.1 is more than interesting. It states:
“The Welsh language is one of the defining characteristics of the UK’s cultural heritage and an essential component of the everyday lives of”,
580,000 Welsh speakers in Wales. That is very bold and very truthful. Paragraph 7.2 is equally interesting. It refers to ensuring,
“that the language can continue to be a prominent and vibrant part of people’s everyday lives”.
Surely, it must be that. These are powerful statements. On reading paragraph 7.10, I conclude that in later years more legislation will be required. I wish to be brief, but I say again that I wish the order well.
My Lords, I am grateful to all noble Lords who have spoken in this debate, although there is a somewhat obvious diversity of contribution between the eloquence we would expect from those whose natural language is Welsh but who were speaking in English and some more prosaic questions to which I have to address myself. I pay tribute to not just the emotion but the love of language, and of the Welsh language, that has been expressed in this Committee. We all appreciate those who have spoken with such passion. Of course, my noble friend Lord Prys-Davies has done so much with regard to the language since he has been at Westminster. We very much appreciate that he is able to make his contribution today.
I shall address myself in a moment to the caveats, but, first, I pay tribute to the work that has been done and to others. In that context, the progenitor of the 1993 Act is here. The noble Lord, Lord Roberts, has seen the development of the legislation which he introduced and then piloted through, and we pay tribute to that.
As to the prosaic questions, the noble Lord, Lord Glentoran, will never let me get away with just rhetoric, so I shall address myself to his question. Let me emphasise that I do not think that costly bureaucracy will be set up by the Assembly of Wales, to which we devolved this issue. As was rightly said by the noble Lord, Lord Elystan-Morgan, this is an enabling measure. It is for the Assembly to decide what must be developed in law. I assure the Committee that it is for the Assembly to address itself to any attendant costs of the legislation that it puts forward, but I do not anticipate huge costs. It is already making plans and, if this measure goes through, knows what it wants to do. It knows that it wants the establishment of a commissioner and an enforcement regime to accompany any imposition of duties, but these do not need to be costly. There has to be some enforcement regime, not because we think that the development of the language will depend on legal enforcement, but because there is no point at all in passing a law that regulates if one cannot enforce its prescriptions. There is an element of cost, but that is a matter for the Assembly to decide.
The other matter on which the noble Lord, Lord Glentoran, expressed anxiety was the CBI. The CBI has expressed its enthusiasm and commitment to this measure. It clearly identified the obvious issues that the Assembly should not inhibit business, particularly in these circumstances where we want to encourage business in Wales. That would be the judgment of the Welsh Assembly with regard to the issue. Who better to make those judgments? All that I can testify to the Committee today is that the Welsh CBI has looked at the matter and welcomed it, knowing that the Assembly will ensure that the measure will not inhibit the development of business.
As to whether £400,000 was a figure pulled out of the hat, it is a figure that indicates that the organisations have to be in receipt of a significant amount of public money to come within the scope of the order. Otherwise, the great danger would be that we would be making regulations for organisations of the most modest kind. No, this is an issue for large and significant organisations. Public bodies come within its scope and bodies that receive £400,000 per annum. In a sense, any figure is drawn out of a hat, which I think is the phrase used by the noble Lord, Lord Glentoran. It is bound to be, but it is the question of judgment about the size of the organisation that needs to be considered. That is the basis of that figure.
Post offices are already subject to the Welsh language scheme under the 1993 Act, as the noble Lord, Lord Roberts, would remind us. If anybody considered the imposition of duties on them unreasonable or disproportionate they could certainly challenge that, including individual post offices or entire organisations. The whole Post Office could do the challenging. The noble Lord, Lord Glentoran, can rest assured on the particular point that he identified about those who take up their retirement serving in Welsh post offices. I thought that our greatest concern was the persistence and survival of Welsh post offices, rather than who ran them. However, he can accept reassurance on that.
On a general point, the Assembly must exercise its judgment on the impact of its legislation on private companies. The noble Lord, Lord Glentoran, asked about the Bank of England, which brought me up with a jolt as I had not briefed myself intensively on its role in this context. The Bank of England, like the Post Office, is subject to the Welsh language scheme under the 1993 Act. That is why we have to include it within the framework. I should have thought that the noble Lord would regard that as a source of rejoicing—that such an august institution has its role to play with regard to the Welsh language.
The noble Lord, Lord Roberts, in accurate terms—and who could be more accurate?—described the significance of the 1993 Act and developments subsequent to that. There is no doubt that this is an important order carrying on the work that the 1993 Act identified.
The noble Lord, Lord Livsey, indicated just how fragile language can be through his own family history. We all know that if language is not passed down from one generation to the next, by definition it atrophies and dies. It might have been the case that at one stage, in very substantive parts of Wales, there was a great danger that the Welsh language was declining into insignificance. Perhaps his family history reflects that decline and the resurgence that is a reflection of the developments over the past three decades. We should rejoice in the changes since then to which noble Lords have subsequently paid such testimony. I was grateful to the noble Lord, Lord Elystan-Morgan, for putting this order into context and for emphasising even more than I could the fact that it is for the Assembly to produce the necessary legislation if this enabling order goes through.
The noble Lord, Lord Prys-Davies, made a most eloquent speech about the necessity of ensuring that the language flourishes and develops, given its extraordinarily long history. I am not prepared to accept that the concept of “official” matters a great deal. English is not an official language; there is not a law in England that defines English as official. But if Welsh is equal with English, we have achieved the status that surely guarantees Welsh always to be a very significant part of all public utterances and all bodies in Wales subject to the law. The noble Lord also raised the issue of a right rather than a freedom. It may be a little late in the day for me to get too involved in such philosophical and constitutional matters. The term freedom makes it clear that a person would be free to speak the language and should be able to do so without interference other than in particular circumstances or specific limitations. A right, however, would enable an individual to call on the state or any other specified body to do something to support his or her right to speak Welsh. When we are talking about a language, surely guaranteeing the freedom is the issue that we are seeking to achieve rather than seeing rights insisted on. After all, that would introduce an element of legalism into the issue, which may not be necessary with regard to the language.
The noble Lord, Lord Jones, asked about the CBI. I hope that I have answered him on that. He asked whether I would write to him; well, I am not going to write to him—I am going to give him the answers now. I have already answered him on the CBI. He asked about education and the universities. Education is clearly in the scope of this legislation; the impact on the universities depends on the legislative Assembly and on the universities. After all, they enjoy considerable freedom in Wales as they do in England. It will be for those institutions to reach decisions, but if the Welsh Assembly does not have the interests of Welsh universities as a high priority, the Assembly would surely be neglectful of education in Wales beyond any conceivable measure.
This has been an inspiring debate, as I thought it would be, about an order which is not a modest order but has a wonderful logic to it, derivative from the 1993 position, the Act and the work that has gone on ever since. Therefore, I am pleased to have been able to participate in such an inspiring debate and commend the order to the Committee.
Health Professions (Hearing Aid Dispensers) Order 2009
Considered in Grand Committee
My Lords, the order being debated today makes provision for the transfer of the register of hearing aid dispensers from the Hearing Aid Council to the Health Professions Council and makes provision connected with the abolition of the Hearing Aid Council after it has completed its affairs. The primary benefit of this legislation is to enhance public safety and we believe that it will bring real benefits to hearing-impaired people.
I am sure noble Lords will join me in thanking the Hearing Aid Council for the work it has done in regulating the private hearing aid profession for over 40 years, but now is the time for change. The framework legislation that sets out the powers and duties of the Hearing Aid Council in respect of the regulation of private hearing aid dispensers is outdated. To deliver high-quality services, change is needed and modernisation will prevent gaps in patient safety from occurring.
Noble Lords will be very aware that the background to the proposed transfer of functions stems from the Hampton report in 2005 on regulatory inspections and enforcement. This report called for the merger of the Hearing Aid Council into a new body. After considering the Hampton report’s recommendations, the Government reached the view that, in fact, the Health Professions Council was best placed to regulate private hearing aid dispensers.
The Health Professions Council, established in 2001, has a modern legislative framework. It already successfully regulates 14 other health professions. It has more comprehensive powers and duties than the Hearing Aid Council, which will enhance protection to patients and the public.
The transfer of the register of private hearing aid dispensers to the Health Professions Council will deliver real benefits for everyone concerned. Private hearing aid dispensers will benefit from a considerable reduction in their annual registration fee, from £695 to £76. Employers of private hearing aid dispensers will no longer need to register, as they currently do with the Hearing Aid Council. This will reduce the regulatory burden on businesses and bring them into line with other employers that are regulated under consumer protection legislation, such as the Unfair Trading Regulations 2008. Employers will also make savings as they will no longer have to pay an annual registration fee. The Health Professions Council has significant economies of scale, with over 200,000 registrants, compared with only 1,700 on the Hearing Aid Council’s register.
The abolition of the Hearing Aid Council will also achieve the Hampton report’s aim of reducing the overall number of regulators. This will result in a small reduction in public expenditure as we will no longer need to support the Hearing Aid Council’s running costs. Most importantly, hearing-impaired people will be better protected by a well organised and highly respected regulator with enhanced powers.
At present, the Hearing Aid Council can take action against a practitioner only once harm has actually occurred. However, the Health Professions Council will have the power to remove a practitioner from the register before any harm takes place, on the grounds that a person is likely to present a risk to the public.
The Health Professions Council sets standards of education and training, performance and conduct and is overseen by the Council for Healthcare Regulatory Excellence. The Council for Healthcare Regulatory Excellence provides external assurance that the Health Professions Council is undertaking its duties effectively through its annual performance review process. In its most recent report, the Council for Healthcare Regulatory Excellence described the Health Professions Council as a transparent, well organised, efficient and cost-effective regulator.
The content of the draft order itself transfers the register of private hearing aid dispensers held by the Hearing Aid Council to the register held by the Health Professions Council; it creates a new offence relating to the dispensing of hearing aids by unregistered persons; it makes provision connected with the abolition of the Hearing Aid Council and the cessation of its functions; and it makes transitional arrangements in respect of uncleared Hearing Aid Council casework at the point of transfer.
The Health Professions Council will, for the first time, protect function as well as title. The title “hearing aid dispenser” will be protected, as is currently the case, but in future, any person not registered with the Health Professions Council who performs the functions of a hearing aid dispenser will also commit an offence. The protected functions will be assessing or testing an individual’s hearing, or prescribing a hearing aid for an individual, with a view to supplying a hearing aid for retail, sale or hire to, or for the use of, that individual.
The proposed transfer of the register of private hearing aid dispensers from the Hearing Aid Council to the Health Professions Council will take effect on 1 April 2010. All private hearing aid dispensers on the Hearing Aid Council’s register on that date will automatically transfer to the register held by the Health Professions Council. Both the Hearing Aid Council and the Health Professions Council fully support this transfer and are working closely together already to ensure a smooth transition. The Health Professions Council has worked with the Hearing Aid Council to develop standards of proficiency that the dispensers will be required to meet after the transfer.
The Department of Health has undertaken a full public consultation exercise on the draft order as required by the Health Act 1999. There were 32 respondents to the consultation and the responses were, in general, overwhelmingly supportive of the proposal. In particular, 97 per cent of respondents—noble Lords can work out how many that is—supported the proposal to transfer the functions of the Hearing Aid Council to another body and supported the Health Professions Council as being the most appropriate regulator.
During the debate on this order in another place there was widespread consensus that the policy of the Health Professions Council regulating private hearing aid dispensers was entirely appropriate. A question was raised about the position of retailers of hearing aids who were not traditionally performing the functions of a health professional. This group of people will not be regulated by the Health Professions Council but are covered by normal consumer protection regulation.
We are grateful for the support given to these proposals by the councils, the professions and all the bodies which have an interest in supporting hearing-impaired people, including the voluntary organisations. These changes bring benefits to everyone and, in particular, the measures will provide improved protection for the hearing-impaired. I commend the order to the Committee.
My Lords, the Committee will be grateful to the Minister for introducing the order, which is politically uncontroversial. Indeed, my understanding is—and she has just confirmed this—that it has the full support of all principal stakeholders, including the main voluntary organisations representing deaf people. I am not, therefore, going to spend time talking about it at any length except to welcome its provisions in the round and, more especially, the consequences which will automatically flow from the transfer of regulatory powers from the HAC to the HPC, such as improved public protection, the introduction of fitness-to-practise procedures and the significantly lower retention fees for practitioners. The HPC has proved its worth and its quality as a regulator and the transfer we are approving today has been the subject of considerable thought and consultation.
Besides bringing the regulation of hearing aid dispensers up to date, the order also opens up over the medium term the prospect of regulatory simplification in that it should one day be possible to bring both public and private dispensers on to the same professional register, which they are not at the moment. Indeed, I understand that some NHS audiologists are not regulated at all and that those who are are subject to a mix of statutory and voluntary regulation. That situation cannot be anything other than confusing to the general public. It would be helpful to have the Minister’s confirmation that unification of regulation in the sense I have described is, indeed, the Government’s intention. I should also be grateful if the Minister would comment on how the Government plan in the future to regulate hearing aid assistance.
Finally, I join the Minister in paying tribute to the Hearing Aid Council for its diligent and conscientious work over the years.
My Lords, I, too, thank the noble Baroness for introducing the order to the Committee in such a clear and comprehensive way. Like the noble Earl, Lord Howe, I do not intend to trouble your Lordships for long. That said, I have indicated on previous occasions that I have a personal interest in this subject, being the child of someone who has been reliant on National Health Service hearing aids for approximately 70 years. Consequently, it has long been my concern that people who are losing their hearing have sometimes gone to the private sector in desperation. There has always been concern about the level of service; by that I do not mean just issuing a prescription but the service provided to people in that situation.
There is real pressure in this area. That pressure may be unique to the field of hearing aids; it does not apply to, for example, optical services. That pressure arises because much of the innovation occurs in the private sector. New technology comes to the private sector long before it comes to the NHS. Therefore, there is a commercial interest behind that. I do not for a moment want Members of your Lordships' Committee to think that I consider private dispensers do not have the interests of their clients at heart, as that is not the case. However, in view of what I have just said, I welcome this measure. I also pay tribute to the Hearing Aid Council for the work that it has done. It is commendable that a body should work so assiduously towards its own demise; that is very generous of it. It is right that the Hearing Aid Council, which did not have fitness to practise powers, should transfer its functions to the Health Professions Council. I noted what the noble Baroness, Lady Thornton, said about the challenge that this presents to the Health Professions Council. It has previously protected titles, not functions. The functions that it will have to regulate in future were listed by the noble Baroness: assess, test and prescribe hearing aids. Does that definition include screening? Screening for the hearing impairment of children and adults is carried out in a large number of places and I want to be absolutely sure that those who carry it out are properly regulated. However, I am not clear whether that falls within this definition.
Like the noble Earl, Lord Howe, I noted that there is an intention that private and public dispensers will be registered on a single register with a single set of standards. In my view that day cannot come soon enough. Everybody who suffers a hearing loss deserves the very best and consistent treatment. When do the Government envisage that that unification of registration will happen? I understand from the Hearing Aid Council that it is unlikely to happen until 2011, at least, even though the transfer will occur in 2010. I wish to see that development occur speedily. Like all the bodies and voluntary organisations that have worked on the unification, I think this is a very good measure and I wish it good speed.
My Lords, I am chair of the Council for Healthcare Regulatory Excellence, which is keen to ensure that public protection issues are properly dealt with. The CHRE seeks an assurance from the Government that the HPC will be required to address, through its appropriate committees, the case of any HAC registrant who currently has a sanction imposed on them. It is important that the HPC committees have the full range of sanctions available to deal with the case appropriately and are not bound to follow the HAC’s decisions. This is vital if a new system of regulation for hearing aid dispensers is to offer improved levels of public protection. I therefore want to put a very specific question to the Minister: can she confirm that it is Parliament’s view that when professionals transfer from the Hearing Aid Council register to the Health Professions Council register—or, indeed, in any similar situation in the future because I think we are talking about a principle here—it expects the HPC to exercise its judgment in reviewing whether sanctions imposed by the Hearing Aid Council on an individual are adequate for public protection? I also offer my congratulations to the Minister for her speedy, but clear, exposition and to the Hearing Aid Council and the HPC for their work on this.
I thank noble Lords for their comments and the fact that there is such a welcome for the order. I have had one of the most comprehensive briefs ever—and all excellent stuff. I think that we have been able to find an answer for virtually every question.
The noble Earl asked whether there were plans to regulate any more professions. Indeed, the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 introduced a statutory regulation saying that we would be looking to bring them under the Health Professions Council. A number of groups of healthcare workers are currently not regulated, and we are considering the need to regulate them, and when regulation is justified, identifying an appropriate model of regulation in the light of the recommendations of the extending professional regulation group. That includes hearing aid assistance. The noble Earl also asked about how audiologists could be regulated as a priority. We are consulting on the proposals for healthcare scientists, and we expect to publish the response at the turn of this year. We published a White Paper in February stating the Government’s intention to introduce statutory regulations for healthcare scientists as a priority, and that is what we are pushing forward.
The noble Baroness, Lady Barker, asked about screening, which was a perfectly sensible question. I think that I touched on that in my opening remarks. The legislation addresses the functions performed by the registry as assessing hearing, testing and prescribing a hearing aid, so it includes screening. Provided that the screener is not carrying out these functions with a view to the sale, retail or hiring of hearing aids, there will be no need for them to register. We would expect the screening to be carried out in the manner in which it is being done.
On the merging of private hearing aid dispensers, and NHS-associated practitioners undertaking a hearing aid practitioner role being regulated as one professional group, the role is just emerging within the NHS and requires further development, including ensuring that it fits within the overall career framework for healthcare scientists. The new arrangements are being proposed as part of modernising scientific careers, so I do not expect that the timetable will be any faster than the one that the noble Baroness mentioned.
I can confirm to my noble friend Lady Pitkeathley that Article 6(7) of the hearing aid dispensers order will allow the HPC to deal with cases where the HAC has imposed a penalty in any way that it considers fit, and indeed, there will be a complete review of cases to do whatever it considers appropriate. When the functions transfer from one regulatory body to another, it makes sense to have a review process on the sanctions imposed by that transfer. The HPC has confirmed that it will review outstanding cases and those with sanctions internally in the first instance, with the outstanding cases then likely to be reviewed by a panel. It is not anticipating problems. It is meeting the HAC to discuss outstanding cases on a two-weekly basis. We expect the number of cases to be very small indeed.
I hope that that answers most of the questions. I commend the order to the Committee.
Committee adjourned at 8.05 pm.