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Grand Committee

Volume 716: debated on Tuesday 26 January 2010

Grand Committee

Tuesday, 26 January 2010.

Arrangement of Business

Announcement

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 perhaps make it clear that the Motion to approve the statutory instrument will be moved in the Chamber in the usual way. If there is a Division in the Chamber, the Committee will adjourn for 10 minutes.

Representation of the People (Northern Ireland) (Amendment) Regulations 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Representation of the People (Northern Ireland) (Amendment) Regulations 2010.

My Lords, the Representation of the People (Northern Ireland) Regulations 2008 make provision relating to elections in Northern Ireland, including electoral registration, absent voting and accessing the electoral register. Last year, the Government conducted a full consultation exercise on improving electoral registration and absent voting procedures in Northern Ireland.

Although many of the changes proposed in the consultation will require primary legislation, other changes can be made by amending the 2008 regulations. Those changes are the subject of the draft regulations before us today. It may assist noble Lords if I summarise the key provisions of the draft regulations. I will first deal with those concerning absent voting procedures at parliamentary elections in Northern Ireland.

Noble Lords may be aware that, due to the perceived increased risk of electoral fraud in Northern Ireland, the law relating to absent voting in Northern Ireland differs from the rest of the United Kingdom. The Government remain committed to both preserving the integrity of the absent vote process in Northern Ireland and bringing legislation before this House where necessary to further protect against the risk of electoral fraud.

Regulation 5 accordingly requires those applying for an absent vote to provide reasons when requesting that their ballot paper be sent to an address other than the one at which they are registered. This will allow the Chief Electoral Officer for Northern Ireland to monitor any attempt to divert ballot papers to certain addresses without good reason and for potentially fraudulent purposes.

The chief electoral officer has recently expressed concern that some absent vote applications requiring attestation by healthcare professionals and others may have been falsely attested. For this reason, Regulations 6 and 7 require those attesting absent vote applications to be on the electoral register themselves. This will enable the chief electoral officer to verify whether an absent vote attestation corresponds with information that he already holds.

Protection against potential abuse of the absent voting procedure remains a key priority for the Government. But we will nevertheless also continue to seek ways to maximise the participation of those who rely on absent voting in the electoral process. Regulation 6 extends the list of those able to attest an absent vote application on the grounds of blindness or other disability to include registered social workers. At present, those able to attest such applications are primarily individuals providing medical or residential care. Adding registered social workers to the list allows those providing social care in the community to attest applications. Provision is also made in Regulation 6 to exempt those in receipt of the higher rate of attendance allowance or the highest rate care component of disability living allowance from the attestation requirement. This will further assist those with severe disabilities to exercise their right to vote.

As a means of protecting against electoral fraud, the 2008 regulations provide that an individual may attest only one absent vote application at any election. Regulation 7 of the draft regulations amends this provision to allow individuals to attest up to two applications per election. This will prevent otherwise valid applications being rejected where, for example, one person has attested the applications of a neighbouring couple. I hope that this summary of the absent voting provisions contained in the draft regulations has been helpful.

I turn now to the remaining provisions before us, which deal mainly with electoral registration. The 2008 regulations allow the chief electoral officer summarily to remove individuals from the electoral register when informed of their death by the registrar of births and deaths in Northern Ireland. However, if the chief electoral officer is informed by registrars of births and deaths elsewhere in the UK or Ireland of a person’s death, he must conduct a formal review of their entitlement to be on the register. This, as noble Lords can imagine, can cause distress to the family of the deceased at an already difficult time. Regulation 3 therefore extends the chief electoral officer’s ability summarily to remove a person from the register if he is notified of their death by a registrar of births and deaths in England, Wales, Scotland or Ireland.

Regulation 4 adds further education colleges to the list of authorities from whom the chief electoral officer may request information for the purposes of registration. Noble Lords may be aware that the chief electoral officer currently undertakes a very successful schools initiative, visiting post-primary schools throughout Northern Ireland to encourage young people to register to vote. Allowing the chief electoral officer to access information relating to the number of potential electors at FE colleges will assist him to extend this excellent initiative to students at FE colleges. This will, in turn, help him to further facilitate and encourage the registration of young people in Northern Ireland, which I am sure noble Lords will agree remains an important objective.

On that point, I was very taken with the figures that I was given and which have resulted from the efforts in Northern Ireland to increase the number of young people registering to vote. More than 18,000 young people under the age of 18 were on the register on 4 January 2010. That compares with only 244 following the annual canvass in 2006, which is an extraordinary increase.

The full Northern Ireland register has a high level of accuracy. Medical practitioners believe that it would be very useful to have access to it in certain circumstances—for example, where an incorrect prescription or test result had been issued but the patient cannot be contacted because the address held by the medical authorities is out of date. Regulation 10 therefore extends the list of those able to access information contained in the full electoral register to include registered medical practitioners. They may, however, only receive information from the register that is necessary for medical purposes and in respect of one person.

Regulation 12 amends the parliamentary elections rules and extends the list of documentation which may be used as proof of identity at polling stations in Northern Ireland to include 60-plus SmartPasses, provisional driving licences and European Community driving licences. Both we and the chief electoral officer are satisfied that this extension will make it easier for individuals to meet the necessary identification requirements for voting, without increasing the risk of electoral fraud.

In summary, although the provisions contained in these draft regulations make relatively minor changes, they nevertheless contribute to achieving the Government’s key objectives of minimising electoral fraud and maximising electoral registration and participation in Northern Ireland. I hope that noble Lords will therefore support the changes proposed. I beg to move.

My Lords, I thank the Minister for that very clear explanation of what the statutory instrument is all about. I support it wholeheartedly. It is another step forward in the process of making the electoral process in Northern Ireland certainly the best in these islands and probably one of the best in the democratic world. We have had many debates in your Lordships’ House as this has progressed; I remember one or two arguments well, but overall we have come out with an excellent result. This is a very good example of the Government looking into the detail of an important process and finding ways to improve it yet further. I support the order wholeheartedly.

My Lords, I thank the Minister for introducing the regulations which we, too, support. It is important for the chief electoral officer to know whether anyone has died, and so having a registrar in the UK or Ireland informing that office is very sensible. It is also sensible to allow registered social workers to attest certain applications from people with disabilities to enable them to have an absent vote.

The regulations make improvements to access to the register, particularly for doctors, as the Minister advised us, and widen the provision for polling station identification. We supported the provisions of the Electoral Fraud (Northern Ireland) Act 2002, which ensured that any photographic form of identification was recognised at polling stations. When any new forms of identification are issued, I hope that they will also be recognised as legitimate forms of ID for the purpose of voting. Can the noble Baroness assure me on that point?

Finally, the integrity of the register, as the noble Lord, Lord Glentoran, said, is vitally important in combating electoral fraud in Northern Ireland. These provisions, as we have heard, strike the right balance between ensuring that the vote is properly secure and assisting those who genuinely need help to vote but are unable to get to a polling station. We wholeheartedly support these recommendations.

My Lords, I thank the Minister for introducing these draft regulations which, for the most part, are benign and uncontroversial. I particularly thank her for her clarification of the circumstances in which medical practitioners will have access to the register. We have always been careful on the issue, but the circumstances she has outlined are sufficiently controlled as to give confidence to the general public.

I have two questions for the noble Baroness. The tightening of regulations on absent voting seems to have resulted from issues of fraud in the European elections in June. The Explanatory Memorandum that comes with the draft statutory instrument does not make clear whether we are talking about the European elections in the United Kingdom as a whole or simply in Northern Ireland, and I should like to probe the issue a little further. My colleague, Dr Sydney Elliott, of Queen’s University Belfast, has suggested that the thinking on this subject derives from the Electoral Commission study published in 2010, Analysis of Allegations of Electoral Malpractice at the June 2009 Elections. That study records, but does not include, 10 cases involving 48 allegations reported in Northern Ireland; in Great Britain there were 48 cases involving 107 allegations. A glance at those figures would indicate that the allegations or concerns were significantly higher in Northern Ireland than they were in Great Britain as a whole. My question for the Minister is this: does the concern arise from the UK as a whole, or was there a particular pressing concern in Northern Ireland which led to the tightening of these regulations?

On my second question, in her introduction the noble Baroness said that there were a number of items in the consultation document which require primary legislation but for which we do not have a vehicle at the moment. We live in a context where, even if there is devolution of policing and justice, responsibility for electoral matters will remain at Westminster for some considerable time—indeed, the Minister in the other place, Mr Paul Goggins, said for all time—and it is an issue for this Parliament whether the Government have any intention of bringing forward primary legislation to deal with some of the questions and items which arose in the consultation document. If it is possible for the Minister to give any clue regarding the Government’s future intentions, I should be very grateful.

I join colleagues in thanking the noble Baroness, Lady Crawley, for the presentation of this order. It is obvious that with the improvement of the electoral and registration systems in Northern Ireland in recent years, Northern Ireland has the best organised elections in the United Kingdom and the old joke about voting early and often in Northern Ireland is no longer topical, although it should apply to electoral practices in some other parts of the United Kingdom. We now set the best standards of electoral practice in the United Kingdom and should not hesitate to say that. Any English colleagues who try to make jokes about Northern Ireland electoral procedures should think twice.

My first question relates to consultation, which I raised a few months ago on a similar subject. The consultation Improving Electoral Registration Procedures in Northern Ireland was advertised and there were responses from political parties and organisations. How many responses were there from individuals? What was their reaction to the document? Secondly, in relation to the registrar of births and deaths in Ireland, under United Kingdom law, the term “Ireland” means the Republic of Ireland. We should not get away from that.

I should like to make that point clearer and support the noble Lord, Lord Kilclooney. Ireland is the 26 counties and Northern Ireland is the six counties.

The Republic of Ireland is defined in the law of the United Kingdom as the 26 countries, but that is by the way. The authorities in Northern Ireland will get advice from the registrar of births and deaths in the Republic of Ireland. How will that information be made available? Is every birth and death in the Republic of Ireland going to be advised to the Northern Ireland authorities on a daily basis, or will they have to ask Dublin how many people were born or died yesterday? How will it work in practice?

I thank all noble Lords who have spoken for their support for these regulations, for which I am most grateful. They are a step forward in clamping down on the remaining fraud. I take the point made by the noble Lord, Lord Kilclooney, that the anti-fraud system in the electoral system in Northern Ireland is the model for the rest of the United Kingdom to follow. We say that without any reservation.

The noble Baroness, Lady Harris of Richmond, supported the regulations and asked whether new forms of identification could be used in future. As long as the chief electoral officer is content, that will be the case.

The noble Lord, Lord Bew, asked about allegations around the European elections in Northern Ireland and compared two sets of figures about cases. The checking is very strict in Northern Ireland, as he knows, and when we talk about the 49 incidents—I am looking to the Box—those were indeed in Northern Ireland during the European elections. The noble Lord, Lord Bew, also asked about the remaining issues needing primary legislation that are not being dealt with today, and when they would be brought forward. We plan to bring legislation forward as soon as an opportunity arrives.

The noble Lord, Lord Kilclooney, asked about individuals responding to the consultation. I am now looking at the list of respondents to the consultation, and the individuals on it are the Chief Electoral Officer for Northern Ireland and Margaret Ritchie, MLA, the Minister for Social Development. Those individuals responded, as did Disability Action, the Electoral Commission, the Green Party of Northern Ireland, Include Youth and many organisations.

I am afraid that the Minister’s reply is exactly as I feared and underlines the point that I made several months ago. It is important that the people in Northern Ireland know what is happening in the electoral procedures, and the way in which they are being advertised means that the people generally have no clue what has happened. The Minister has not been able to name or identify any individual who responded; Margaret Ritchie is a politician, but I was talking about ordinary individuals in Northern Ireland. It is astounding that there has not been one response from the general public in Northern Ireland.

I fear that the whole advertising of electoral procedures is disastrous; I declare an interest yet again in being involved in the media in Northern Ireland. Following the last debate in Grand Committee, I got a reply from the chief electoral officer saying that they advertised in the News of the World, the Sunday Mirror and the Sunday World, or some papers like that. Those papers are not widely read in Northern Ireland. He also mentioned the News Letter, which sells 25,000 papers. One paper, the Impartial Reporter—with which I have no connection—sells 14,000 in Fermanagh alone. Likewise, they advertised on classic radio in Northern Ireland, which is not widely listened to, but ignored the Northern Media Group, which has a much larger listenership in Northern Ireland. The advertising of the electoral procedures in Northern Ireland is abysmal at the moment. The people have no idea, and the fact that there has been no response from any individuals makes my point.

I take the noble Lord’s point; I remember that we had quite a discussion on this, well before Christmas, in this very Room. During that meeting of your Lordships, I think that I said it was very important to get as much information out as possible prior to consultations and to get a reflection of the population back in consultations. To be fair, there is the work being done by the chief electoral officer and his team, which I mentioned in the introduction, of going out to schools, FE colleges and universities. There is a lot of outreach work going on in the community, as well as wanting the optimum return to consultations. However, I am aware of the point that the noble Lord makes.

The noble Lord, Lord Kilclooney, also asked about the sharing of information on deaths. I had better write to him on that, because I think that he will probably need a little more detail. This is an operational matter for the chief electoral officer; I am not aware of the detail, but of course the chief electoral officer has arrangements with his counterpart in the Republic of Ireland. I am happy to pass on the noble Lord’s request for information.

Motion agreed.

State Pension Credit (Disclosure of Information) (Electricity Suppliers) Regulations 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the State Pension Credit (Disclosure of Information) (Electricity Suppliers) Regulations 2010.

My Lords, the regulations will enable us to bring into being the energy rebate scheme, which both delivers real help this year to pensioners and acts as a pilot for the future scheme announced in the Department of Energy and Climate Change’s White Paper, The UK Low Carbon Transition Plan. This represents a new way of working with energy suppliers, bringing together the information that we hold to deliver help with fuel bills to the poorest of pensioners.

Fuel costs can have a big impact on household budgets, particularly in cold winters such as this, which is why we want to be able to identify, and target support effectively to, those households which need most help. The energy rebate scheme builds on the current voluntary agreement between government and energy suppliers. Under this agreement, made in 2008, energy suppliers agreed to increase the assistance offered to vulnerable customers through social programmes. The energy rebate scheme will be an important part of this programme.

The voluntary agreement with energy suppliers comes to an end in March 2011. The Government have proposed that a mandated social price support scheme should follow. As I have just mentioned, this was first proposed in DECC’s White Paper. Legislation to facilitate this has been brought forward in the Energy Bill currently before Parliament.

The regulations before your Lordships are made under Section 142 of the Pensions Act 2008. They facilitate data-sharing between the Government and energy suppliers.

The energy rebate scheme will be funded by the electricity suppliers under the voluntary agreement with the Government. It will provide pensioners aged 70 years and over who receive only the guarantee credit element of pension credit a one-off rebate worth £80 on their electricity bill. This represents a significant additional contribution towards fuel costs for recipients, and it will be paid in addition to the winter fuel payment and cold weather payments in periods of very cold weather.

To determine who will receive the rebate, certain data will be shared between the DWP and the energy suppliers. This will be done through a data-matching exercise carried out by a third party, HP Enterprise Services, the DWP’s recognised and authorised IT provider. The draft regulations specify the information that can be shared, the purposes for which that information can be used and an offences regime for unlawful disclosure of information.

First, on the information that can be shared, the draft regulations permit the DWP to share the names and addresses of people who on 26 March 2010 are aged 70 and over. In the case of couples, the regulations also allow DWP to share the same details of any spouse or partner where one of them is in receipt of the guarantee credit element only of pension credit on the qualifying date of 26 March 2010.

Secondly, the regulations cover the purposes for which the shared data can be used. The main purpose is to establish whether a person qualifies for the rebate. The draft regulations allow energy suppliers to share details of their domestic electricity customers, indicating whether they are on a discounted tariff. Energy suppliers may also contact customers who have received the rebate to offer energy efficiency measures and offer to place them on the priority register.

Finally, the draft regulations set out an offences regime for unlawful disclosure of information. They set out offences for improper use as well as the penalties. This is aimed at strengthening the security of data handled and transferred. We have ensured that the regime complies with the Data Protection Act.

Details about the scheme and how it will work in practice can be found in the scheme policy document, which is available in the Library. We will publish a final version of this document before the scheme comes into operation.

It may be helpful if I give a quick summary of how the scheme will operate. The DWP and the energy suppliers will pass the relevant data to the data-matching organisation to perform the match. Where there is a match between the two sets of information, the energy supplier will be notified and will automatically award a rebate of £80 to that customer’s electricity account. We expect most people to receive the rebate without needing to do anything. The rebate will appear as a credit on their electricity bill.

Is the Minister able to give an estimate of the number of people that we are looking at regarding the guarantee credit element of the state pension credit?

I shall be very happy to supply that information but perhaps I may formally complete my introduction to the regulations and deal with my noble friend’s question in my winding-up speech. However, it is a very pertinent question and one with which I hope I can help.

There will be cases where we believe that people should qualify but their data have not matched. This might be because they do not have an electricity account, or because of weaknesses in either the data presented for matching or the matching process itself. In these cases, we will do our best to ensure that those who qualify still receive the rebate. We will write to them advising what they need to do to get their rebate, and a dedicated helpline will be available to deal with those calls.

Matching and sharing data in this way is a new frontier for government and for energy suppliers; it has not been done before. Although we have done our best to estimate what the outcome will be, so far as concerns the number of people who might receive the rebate, for example, we cannot be precise.

Before the full data-matching exercise is conducted, we will undertake a test phase using live data. This will enable us to test the data-matching process and make any technical adjustments that might improve the match rate. The test phase will also help us to make decisions on who exactly should qualify for the rebate. We want to reach people who are responsible for paying their own fuel bills and who do not already receive help, through a discounted tariff, with their electricity bills. It is our intention therefore to exclude people who receive a discounted tariff from this scheme, but this may depend on the numbers involved.

The DWP and energy suppliers are working together to set up a communications strategy to ensure that people who might qualify are aware of the scheme and its benefits. After the matching exercise, the DWP will write to people whose details have automatically matched to tell them about the rebate and when they can expect the rebate to appear on their electricity bill. Information will be made available on the internet and to customer representative groups before the scheme comes into operation.

The energy rebate scheme will last for one year only. It is a pilot. The lessons that we learn from this scheme will be invaluable in helping us to design the mandated scheme from 2011.

My honourable friend the Minister of State for pensions and the ageing society has made a statement in the Explanatory Memorandum to the regulations that, in her view, the statutory instrument is compatible with the European Convention on Human Rights. I confirm that that is my view too. I commend the regulations to the Committee. I beg to move.

My Lords, we welcome these regulations. They set up what will helpfully be a small, cheap and effective scheme to target support towards those who need it most. I thank the Minister for his helpful draft scheme policy document, which sets out the Government’s intentions in considerably more detail than it is possible to glean from the regulations themselves.

We have all felt the cold in the past few weeks. This winter has been particularly harsh and it will add a significant amount to the energy bills of those least able to afford it. The Government have missed many opportunities on fuel poverty. They have missed all their targets and are likely to miss the next one, but this is a small step in the right direction, so that is something.

Despite the explanatory document, I still have a few questions about the scheme. Paragraph 16 of the draft scheme sets out that the Government’s current intention is to exclude from the scheme those customers who are already receiving a discounted tariff for their electricity supply. This seems sensible and would avoid giving some people a double discount. However, the paragraph goes on to say that if the overlap is very large, the Government will ignore this policy intention and continue to offer a rebate in order to ensure,

“that the number of people assisted by the scheme is not so small as to make the administrative cost and effort required disproportionate to the benefits”.

That seems a very strange way to offer support; to say that they have taken so much time and money to establish that you do not need help that they are going to give you some more money anyway does not seem the best use of public funds. Of course administrative costs should be kept as low as possible, but the way to achieve that should not be to expand the overall budget so that the proportion falls.

Speaking of costs, can the Minister confirm how much he expects this system to cost? Ignoring the final sum of the rebate offered by the energy suppliers, which will depend on the number of matches found, how much will HP Enterprise Services charge for this year’s work? Who will bear the cost? Will it be the Government or the energy suppliers? The Minister in another place identified HP Enterprise Services as,

“the recognised and authorised information technology provider for the Department for Work and Pensions”.—[Official Report, Commons, Ninth Delegated Legislation Committee, 13/1/10; col. 4.]

That unfortunately does not inspire as much confidence as it should. Can we be assured that we will not, once again, be presented with an example of the Civil Service’s inability to negotiate rigorous contracts with the private sector? What measures of success are being demanded to deliver this system accurately and cheaply?

I am glad to see the criminal offence around unlawfully disclosing data in these regulations, but I would like to confirm that at the end of the year HP Enterprise Services will also be required to wipe its systems of any data. At the moment, the explanatory document confirms only that energy suppliers and DWP have to purge their systems of the information shared between them.

I should like to address other areas that the Government should be looking at to help those suffering from fuel poverty. I do not expect the Minister to perform a U-turn today and accept the Conservative policy of providing a loan to home owners to upgrade the energy efficiency of their homes by simple means such as loft insulation and so on. However, does he not accept that many of those suffering from unaffordable fuel poverty would benefit enormously from such measures?

Finally, I should like to push the Minister on what his department is doing to improve the worryingly low uptake rate of pension credits. In another place, the Minister claimed that the uptake rate was better at the lower levels of income, which is something, but unless the Minister thinks that pension credits are being offered to those who do not need them, it surely is not the point.

Despite my wider concerns about the Government’s approach to fuel poverty, I welcome the regulations and I very much hope that they achieve the matching that they are intended to.

My Lords, we on these Benches share the general support that the noble Lord, Lord Freud, has given for these measures, as far as they go. Like him, I have a number of mainly factual questions.

Some 3.25 million households are estimated to be in fuel poverty and 2.25 million of them, according to Age Concern, are older households. How many pension credit recipients just of the guaranteed credit covered by the regulations do the Government believe are over 70? What is the total pool of people among whom help could be distributed? How many people are excluded—people over 70 who would otherwise be eligible—by the exclusion of people on the savings credit? There is obviously a problem of limited resources, but it seems very hard to give no help at all to a pensioner over 70 who is perhaps receiving only a few pence or a few pounds of savings credit or is benefiting from it.

Why does the scheme cover only electricity and not gas bills? The question is fairly obvious. How was the qualifying date of 26 March 2010 chosen and, given the considerable problems with take-up of pension credit and the delays in processing claims, will that lead to many pensioners who would otherwise be eligible missing out? Citizens Advice, which knows more about these matters than anyone, states:

“Problems in relation to Pension Credit are now a leading social policy issue … The most common problem continues to be the length of time it takes to process claims, and in some cases this is being exacerbated by the loss of papers relating to individual claims”;

with delays of more than a year in some cases. That is obviously shocking, not only in relation to this particular additional help but also in relation to qualifying for desperately needed pension credit generally.

Those are our main questions. However, even after the Minister’s generally full and helpful introduction and studying the background papers, which I found helpful, I am still not sure of what is the best estimate of the number of people who will benefit. My honourable friend in the Commons, Steve Webb, said that he estimated that only about one-tenth of pensioners on pension credit would be helped. Perhaps the Minister will comment on that.

We thank the Minister for the time and trouble he has taken to explain the regulations, and we would welcome detailed answers to our questions.

My Lords, I apologise to the noble Lord, Lord Oakeshott of Seagrove Bay, because I sought to intervene before I should have. I hope that he will recognise that it was an honest mistake.

The Minister has explained the purposes of this order very clearly and, like my noble friend Lord Freud, I welcome it. It is the first tangible, visible effort by the Government to solve a problem to which I drew the attention of the Grand Committee, and later that of the House, two years ago in January 2008—that is, the flaws in the CERT scheme, the carbon emissions reduction target scheme. I have alerted the noble Lord to the fact that I am going to refer back, very briefly, to those debates. I asked the Minister yesterday whether a DECC Minister would be supporting him, but he has got the best thing available with some extremely able DECC officials sitting behind him, whom I know well.

The point of my argument in 2008—which is entirely relevant to this order, as the Minister explained, under paragraph 5—is that 40 per cent of the savings under the carbon emissions reduction target have to come from what is called the “Priority Group”—which, essentially, is a large number of different categories of people claiming benefits—which, under that order, included for the first time all pensioners. I immediately declare an interest as a pensioner. However, nothing was done at that stage to help the energy suppliers to identify the households that would be eligible for the various benefits available, notably the insulation of their homes. At the time, the noble Lord, Lord Rooker, who dealt with the order, firmly announced that if they did not meet their target of getting 40 per cent of their savings from the priority group, the suppliers would be liable to fines up to one-tenth of their total turnover. It was no small matter.

The noble Lord, Lord Rooker, freely acknowledged that the problem of identifying the priority group households was a serious one. He said that it was being addressed through what I have to say were extremely small pilot schemes, to which I shall come in a minute. But we are grateful for this order, because it is the first tangible expression of being able to allow the energy suppliers to identify the people who should benefit. I understand that most of this order is dealing with the energy rebate scheme, and I listened with interest to the Minister’s remarks on that. Of course, we shall return to this issue on the Energy Bill, when we discuss what he called the social price support scheme. There are enabling provisions in that Bill to be supported later by regulations, which I am told are likely to be consulted on during the summer.

I declared an interest a moment ago. I have had my house very recently insulated with loft insulation and cavity wall filling under the CERT scheme. It was perfectly clear that I was part of the priority group. I have to say that it has been a truly horrendous experience. The day when the firm turned up and did the work was not a problem, but I had to go through months of hassle to get this working at all. I tried to do it first through the Energy Saving Trust, having had a circular, which I was asked to fill in, on the nature of my house and what the current insulation was. The trust wrote back and said that I needed more loft insulation and more cavity wall filling; then it referred me to another government body called “Coldbusters”, which then referred me to a firm of insulation contractors. When I heard nothing more from the contractors, I rang them up and eventually a surveyor came. Then I heard nothing more after that and rang them up again, and they said that they were very sorry but they had run out of money and could not do any more.

At that point, I got in touch with the noble Baroness who deals with this in Defra. I asked her what was going on and how someone could run out of money for a scheme of this sort. She wrote me a very apologetic letter and said that it was perfectly clear that all the people that I dealt with in the Energy Saving Trust and Coldbusters did not understand the scheme. At that point, I washed my hands of it and started again and went back to my energy supplier, British Gas. Here, again, I had a very considerable problem, which I eventually had to resolve with the help of Ofgem, which was extremely helpful; it is responsible for administering the scheme.

Eventually we got the work done, but it took months—and it has totally vindicated my belief that the biggest single barrier that DECC faces in taking this scheme forward is the sheer hassle faced by householders. I was lucky, because I could write to a Minister and got the answer that the problem was total incompetence, and that the people in the government bodies running the scheme did not understand the scheme. I had to write to Ofgem to put a bomb under British Gas to get on with it. In the end, I got senior people involved. But, my Lords, that sort of thing is simply not open to the ordinary citizen, certainly not to the elderly people who are probably the most reluctant to embark on having their houses insulated. It has been a very sobering reflection on how one has to deal with officialdom in cases like this. I hope that perhaps DECC will take this back to see what can possibly be done to improve the ordinary citizen’s experience.

Most of this instrument, as the Minister said, deals with the voluntary energy rebate scheme, the details of which he set out very clearly. As I said, I welcome it because it means that for the first time energy suppliers are to be given the names and addresses of the people to whom they need to give this credit.

The details of the eventual scheme will, as I said, be set out in secondary legislation and there will be a consultation in due course. We can of course return to this matter on the Energy Bill, but I hope that the Minister will be able to tell us when the consultation on the new social price support scheme is going to happen. It is sometimes referred to as a “mandated” scheme, but that actually means a “compulsory” scheme. It is all part of dressing up the scheme with the right words in the hope that that will make it more acceptable.

At this stage, I say only that I will require some persuading that it is right to expect the energy suppliers, which are in competition with each other and are facing having to supply electricity in a competitive market, to subsidise some of their customers who may be fuel-poor. I say that merely because I think that we will need to discuss this issue. It may be the most effective way forward but, as the Minister said, we already have the winter fuel payment and the cold weather payment, which are social security benefits. They seem to be payable to everyone and mine goes straight to the Red Cross. It is a nice way of passing it on.

We come now to regulation 5 of this statutory instrument, which deals with the CERT scheme. Paragraph (3)(d) of that regulation indicates that the purpose of this data-matching is,

“to contact domestic customers who have received an automatic award with a view to … offering energy efficiency measures … delivering or helping to deliver energy efficiency measures”,

and, as the Minister said, to place their names on the priority list. That is all under the CERT order of 2008, which I do not think has always been immediately obvious. One person from whom I took advice on this said, “Oh no, you shouldn’t raise CERT under these regulations; it has nothing whatever to do with them”. So I wrote back to him saying that he was quite wrong; it does arise under these regulations, and there it is in regulation 5(3)(d). Indeed, the Minister has explained why that should be so.

I, too, have some questions but, unlike, I think, the noble Lord, Lord Jones, I gave the Minister notice of them. My first question is similar to his: how many consumers, or perhaps consumer households, will be covered by the regulations? I appreciate that the DWP cannot yet say how many will receive the automatic energy rebate because, as the Minister explained, many of them may already be getting a discount from their supplier. The intention is that that should not be duplicated but, as the Minister said, it may turn out that there is such a big overlap that that has to be the case. However, I am not asking how many people will get the rebate; I am asking how many consumers or consumer households are entitled to the guarantee pension credit and so come within the purview of these regulations.

My second question derives from that and was, I think, asked by the noble Lord, Oakeshott: what proportion does that number represent of the 11.2 million priority households that are eligible for insulation help under the CERT scheme? The noble Lord, Lord Oakeshott, said that he had been advised by his colleague in another place that it might be 10 per cent. My guess is that the figure may be substantially lower than that but I shall await the Minister’s answer.

I am sure the Minister will be briefed on my third question. Do the Government realise that electricity companies are still getting little or no help under any of these schemes to identify the rest of their consumers in the priority group who should be getting help with the insulation of their homes? What proposals do they have to deal with this problem? What progress has been made with the pilot schemes that I mentioned at the outset of my speech, which were referred to by the noble Lord, Lord Rooker?

I refer to a brief that I received from the Equality and Human Rights Commission. Like the rest of us, the commission rightly welcomes the scheme as a contribution to solving the problem but, under a heading “Use of Data”, it states:

“The Commission notes that the Regulations have been amended following consultation to allow suppliers to contact matched customers to seek consent for them to be added to the list for priority services - as the result of suggestions in the consultation”.

I am not in the least surprised that those suggestions emerged from the consultation because it is a sensible thing to do. It goes on:

“Although we recognise and welcome longer-term measures such as increasing energy efficiency, we believe that the data in this scheme should only be used in order to process and apply the specific credit from the energy supplier. We are keen to ensure that data should not be used by energy suppliers for other purposes, such as direct marketing, without individuals pro-actively opting in”.

How does the commission think that energy suppliers are going to reach these 11.2 million households unless they are given some information about which they are? I can tell noble Lords how they reach them at the moment. They have a variety of methods, some of which may be more effective than others. A lot depends on identifying an area of a town or city in which they might expect to find a higher than average proportion of these customers. They then knock from door to door, finding out who these customers are and whether they have had any help under Warm Front or whether they qualify for help under the CERT scheme. They have told me that it is still a very expensive operation because it is like finding a needle in a haystack. They knock on a large number of homes and find that they are not eligible for help under the CERT scheme for a variety of reasons.

Two years after the original CERT order, and after we have complained bitterly about threatening the companies with fines if they do not reach their 40 per cent target, we are still not telling them who their target households are. All we have is this first—and I say again, very welcome—effort to try to tell them to whom they should be giving the rebate and whom they should be telling that they are entitled to help under the CERT scheme. What is happening to these pilot schemes? When can we hear something else coming out of that?

Finally, I note that there has been a significant change in the scheme as a result of an amendment order passed last July. Among other things, the amendment order states that they were:

“to remove direct mail high efficiency light bulbs (CFLs)”.

I had to ask what CFLs means: it means compact fluorescent lamps. Why can they not be called “high-efficiency light bulbs” or “low-energy light bulbs”? Why do they have to be given this fancy name? It is nothing to do with the Minister, but it is how these things sometimes get tangled up in jargon invented in Whitehall, which nobody understands. The main point I want to make about them is that in the last update of the carbon emissions programme, dated 6 November, very nearly 30 per cent of the savings achieved by then had come from lighting. Now those are illegal—they are not now allowed to be promoted by direct mail, as that has been banned, but can be through retail outlets.

There is a clear recognition that there will be a very substantial fall-off in the proportion of the savings coming from lighting—the CERT makes that clear—and that that will have to be made up by increasing the savings got from other sources. I do not expect an answer to this at the moment, and certainly not from the noble Lord, Lord McKenzie, but how on earth are they to do that? They are working as hard as they can on everything else. This order will help them to a small extent with the credit pensioners, who get the guaranteed credit, but they are still left with that huge balance of the 11.2 million people from whom they have to try and get the savings.

This whole scheme, worthy though it is in intent—to judge by the figures produced by Ofgem, it is certainly making some progress—is still making relatively little progress compared with the need of trying to get millions of older houses properly insulated and protected against the cold. We will no doubt wish to explore this point further when the Energy Bill reaches this House but my question, which is the same as that put by other noble Lords, is: how many are covered by this scheme? It is not about who will get the automatic rebate, but about the individuals or households covered by it. Also, what proportion does that represent of the 11.2 million?

My Lords, I thank all noble Lords for what I believe is their support for this order, even though it comes with quite a few questions which I will try to address. In so far as I miss any of those, I will be very happy to write to noble Lords. I think that all noble Lords focused on the numbers of those who will be helped here; the noble Lords, Lord Oakeshott, Lord Freud and Lord Jenkin of Roding, and my noble friend Lord Jones did that. I want to stress that people are eligible if they are on the guaranteed element of pension credit only and aged 70 or over. We believe that something like 0.6 million people are on savings credit only and that 2.7 million people are on some form of pension credit. Of those 2.7 million, we believe that something like 333,000 are eligible under this scheme.

When we go on to assess how many people will benefit from the scheme, we currently estimate that around 250,000 pensioner households will benefit from the rebate. The precise number will obviously depend on the quality that is achieved and the number in the target group already receiving a discounted tariff. Although that number is a relatively small proportion of the total of 11 million in the priority group—

I stress that this is a pilot that is seeking, I suppose, to do two things: to reach and support people with a credit to their electricity bills, while testing what data-matching of this nature can do. There is the prospect of that progressing once we come on to the mandated or compulsory scheme in due course. There is that benefit to flow from it as well, and I suggest that we should focus strongly on that.

The noble Lords, Lord Oakeshott and Lord Freud, talked about take-up of pension credit. The Government have done much to make sure that there is full and improved take-up of pension credit. It is a challenge, but we know that take-up of the guarantee credit element of pension credit is higher. We think it is of the order of 72 to 81 per cent. It is the savings component of pension credit which tends to have less take-up.

I thank my noble friend for those details. I suggest that, since what he has proposed is more than helpful, the Government might consider promulgating a good policy.

I thank the noble Lord. If the Minister is talking about 250,000 people who are expected to take it and the rebate is £80, we are looking at a budget of £20 million. So, when the Minister says that there is not much uptake, in practice there is a capped budget of £20 million and that is the amount the Government will put into this sector. Have I understood that correctly?

The £20 million figure is correct if 250,000 households are supported, but this will be paid for by the energy companies. It is not a government budget. It is part of the energy companies’ commitment under the voluntary agreement.

I thank the Minister for those figures. I apologise if I did not ask my question clearly enough, but what I was trying to ask about eligibility was: how many people aged over 70 do the Government estimate to be eligible for the guarantee element of pension credit? That is not the same as how many are getting it and are therefore eligible for this benefit. If the Minister does not have the figures specifically for people aged over 70 now, I would be delighted if he could write to me with the Government’s best estimate.

I apologise to the noble Lord; I did not cover the point he raised. I do not have any data to hand about pensioners aged 70 or over who might be entitled to pension credit. If we have those details, I will certainly write to the noble Lord.

My Lords, following the point of the noble Lord, Lord Oakeshott, if the department knows who the people are over 70 who would be eligible for the pension credit, why on earth is it not making sure that they get it?

With respect, that is a slightly different point. Everybody who is entitled to pension credit and has made a claim for it would get it. The gap is where people are theoretically entitled to pension credit but have not applied. Pension credit depends upon people’s income and personal circumstances. The DWP or HMRC would not necessarily possess all those details to be able to make a judgment. There has to be a claim. A lot of work has been undertaken by the DWP in helping people to claim a combination of benefits, including council tax benefit and housing benefit, as well as pension credit. However, it does need to be claimed.

I am most grateful. I will try to make this my last intervention. If people have not made the claim, and are therefore not getting the benefit of the guaranteed pension credit, there is no way that they will have their details disclosed to the energy supplier, is there? Therefore, they will not get the energy rebate.

The noble Lord is absolutely right. Under these arrangements for sharing with the energy suppliers the data of people who are in receipt of certain components, or a component, of pension credit and are aged 70 or more, that matching has to be done. If somebody is entitled to pension credit, has not made a claim, has not been assessed and is in receipt of pension credit, they could not possibly feature in this match. That is right. In a sense, that is just a consequence of the broader challenge of trying to make sure that there is improved take-up of pension credit. This data-matching route will not be a perfect solution. The purpose of the pilot is to see how effective it can be for the cohort that we have identified and are seeking to apply it to.

The noble Lord, Lord Freud, referred to data security and contractual arrangements. The department takes security of data very seriously and must deliver policies, procedures and controls to ensure that data are securely held, transferred and protected. Security is woven into everything that we do, driven in part by experience. We are deploying our existing IT service provider, HPES, to undertake the data-matching exercise, and it fully adheres to all departmental security protocols: creating contractual arrangements with the energy suppliers which specifically detail security arrangements and specify secure measures for handling, destroying and transferring data; encrypting all data in accordance with the DWP’s encryption methodology prior to transfer to protect personal data; identifying named security officers from both the department and each energy supplier; and introducing a stringent monitoring and reporting system to ensure that security is at the forefront of the data-matching exercise. Creating these regulations—specifically regulations 7 and 8—will strengthen the legal safeguards even further by creating an offence of unlawful disclosure, which is supported by the noble Lord.

The noble Lord asked what the scheme will cost. If, ultimately, it involves 250,000 people at £80 each, he is absolutely right that that will amount to £20 million, which will be met by the energy suppliers. The costs of setting up and running the data-matching exercise and the customer service follow-up action will also be met by the energy suppliers, and the total cost of that is not expected to exceed £1 million.

The noble Lord, Lord Freud, talked about poverty targets and the need to do more. Our fuel poverty targets are challenging but the Government’s policies in the UK fuel poverty strategy have centred on the three main drivers of fuel poverty: reducing the demand for energy through improving home energy efficiency; raising real incomes; and ensuring competitive energy prices through regulating the market and voluntary social pricing support schemes. Since 2000, we have spent £20 billion on benefits and programmes to tackle fuel poverty. This is a priority for the Government.

For example, this year we expect to spend around £2.7 billion on the winter fuel allowance, and we are currently committed to paying more than £250 million in cold weather payments. Warm Front has assisted more than 2 million households. The total funding for 2008-11 is £1.1 billion. Earlier this month, we launched the boiler scrappage scheme, which will provide a £400 incentive to help up to 125,000 households to upgrade their boilers. This scheme will cost something like £50 million. I suggest that these measures have a real impact. We estimate that without them the number of fuel-poor households in England would be around 400,000 to 800,000 higher.

The noble Lord, Lord Oakeshott, asked about processing delays in pension credit and what that would mean. Unfortunately, someone whose claim is settled late will not qualify under this pilot. We recognise that some customers will obviously be disappointed, but, for reasons of simplicity and cost, we are not planning a further DWP scan to identify cases where a pension credit is subsequently awarded for the qualifying claim. Doing so would add enormously to the cost and the timeframe for delivery.

The noble Lord, Lord Freud, asked how long the electricity suppliers will retain the shared data. We are expecting suppliers to be in a position to delete files sent to them shortly after they have received them. However, the exact timing will depend on how the data will be loaded on to supplier systems and when the payment will be made, and this is still under discussion.

The noble Lord, Lord Freud, asked about success measures. We will be evaluating the scheme against a number of criteria, including how many pensioners are matched automatically, how many we reach through manual sweep-up through letters to those who do not match automatically and whether those who match get their credit with their next energy bill. Of course, we will learn lessons for the future as to the effectiveness of data-matching.

The noble Lord, Lord Jenkin, asked how suppliers had found vulnerable households to date. It is a theme that he has spoken about previously. We believe that suppliers have been very successful in delivering against their CER targets, which is why we had the confidence to increase the level of the target by 20 per cent in 2009. For instance, by the end of the first 18 months of the three-year scheme, suppliers had achieved 63 per cent of their increased CER target. In the absence of any means of sharing government data with suppliers, they found it difficult to meet their priority group targets in the energy-efficient commitment that preceded CERT, which comprises households claiming particular benefits. In response, the Government took the opportunity to add all the over-70s to the group. So it is not all pensioners—it is those over 70, which increases the level of opportunities. Certainly, that helps suppliers make further progress on their priority group targets at the CERT halfway point, with less than one-third of savings left to be achieved.

The figures from April 2002 to September 2009 show that 3.4 million cavity wall insulations have been done, as well as 3.6 million professional loft insulations. Close to 2 million households have benefited from subsidised DIY loft insulation. In total, that means that around 7 million households have benefited from some form of insulation measures during this period. I should say to the noble Lord, Lord Jenkin, that we are sorry to hear of his direct experience of the scheme. I shall share with DECC colleagues the lessons from that experience, to ensure that they are aware of it. As for monitoring the scheme, at the moment lead-times are monitored closely, although practically they tend to vary through the year. However, we recognise that in some cases the work is not done as quickly as the Government would like, let along the consumer.

The Energy Saving Trust recently commissioned a review of how its advice network refers into carbon emission reduction target schemes. The aim of the review is to improve the customer experience offered by the EST and the advice centres for customers wishing to install a CERT-funded measure. Most suppliers operate their own independent auditing procedures for insulation work and impose fines, suspensions and contract cancellations on installers who fail to meet standards of service and customer care. Suppliers work hard to ensure that customers do not have to wait longer than is reasonable and take action in cases in which that fails.

The noble Lord referred to the hassle factor and its impact on customer service and the success or potential success of the scheme. The primary aim is to deliver carbon reductions in households; the scheme has been very effective, and I have just outlined some of the achievements to date. This is about awarding the rebate, so people do not have to take action themselves. The noble Lord asked about the consultation on the mandated social price support scheme; we hope that that will take place in the summer of this year.

The noble Lord, Lord Jenkin, talked, too, about the difficulty to date of suppliers finding vulnerable households. We believe that they have been successful in that; it has been helped in part by adding the over-70s to the group. One can understand the challenge—and I think that the noble Lord himself said that sometimes there was a process of focusing on particular areas. “Blitzing” is the term that might be applied to that. Part of the challenge is to reach these customers and to do it on a basis that has regard to costs. One can understand the challenges of that, which is why the data-matching—if we can make it work—provides a significant opportunity.

The noble Lord, Lord Jenkin, asked what proportion of the priority group is represented by the 330,000 eligible people. It would be about 2 per cent. to 3 per cent. What we learn from the process is important. If we can make it work, the possibility of expanding it could be significant.

The noble Lord asked when payments would start. The Government will consider the success of the scheme and assess whether it provides a secure and effective means of targeting assistance to poorer pensioners. We expect payments to start from late spring, and evaluation will begin as soon as the first payments are made. The noble Lord asked about progress on the pilot schemes. I do not have much detail on that. Perhaps I might write to him.

The noble Lord, Lord Freud, tempted me to comment on Conservative Party proposals. I am sure that he will forgive me if I do not stray into that. He referred to the discounted tariff and asked whether the overlap is large. The purpose of a trial run to evaluate the overlap is to see whether the exercise is going to be meaningful. If we found that there was a 90 per cent overlap and that only 10 per cent of the potential customer base was going to be within a matching exercise, it would be doubtful whether such a small exercise could be justified on cost/benefit terms—hence the proposal that, if there is a large overlap, rowing back from the principle of excluding people if they get a discounted tariff would broaden the scope of people who would be within the exercise and make it potentially more meaningful. It is proposed, although I am not sure that it has been finally agreed yet, that for those who are in receipt of a discounted tariff the payment would not be £80 but £40, which would not be the full amount.

I fear that I have not covered all the points that noble Lords made. If anybody wishes to press me on a particular matter, I shall try again. If not, I shall look at the record and write to noble Lords further.

Fuel costs can have a big impact on household budgets. We want to be able to identify and target support effectively to those households which need most help. The regulations facilitate data-sharing between government and energy suppliers, and enable the Government to pilot their energy rebate scheme. The Government are proud of their record on reducing fuel poverty and our aim through this scheme is to provide pensioners over the age of 70 with a fuel rebate worth £80.

Most people should receive the rebate this spring, without needing to do anything, in time to impact on the last quarter’s energy bills. We are working with energy suppliers to set up a communications strategy to ensure that people who might be affected are aware of the scheme and its benefits. The energy rebate scheme will last for one year only. However, the lessons that we learn should be invaluable when it comes to designing the mandated scheme from 2011. I commend the regulations to noble Lords.

Motion agreed.

Criminal Justice Act 2003 (Mandatory Life Sentence, Determination of Minimum Term) Order 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010.

My Lords, the Committee will not, I hope, need reminding of the public concern about murders committed using knives. It is incumbent on us to respond to those concerns to maintain confidence in the criminal justice system, and it is crucial that sentencing should properly reflect the seriousness with which this type of murder is treated. I pay tribute to all those who have campaigned on this issue and I am sure that the Committee will join me in expressing my heartfelt sympathy to those bereaved relatives and friends who lost a loved one in such appalling circumstances.

Public concern has focused particularly on the disparity between the 30-year adult starting point for murder using a firearm and the 15-year starting point for murder using a knife. The Government responded to the concerns expressed last year by conducting a review over the summer of murder using a knife. We also consulted the Sentencing Guidelines Council, as required under statute. Guidance to the courts on determining the appropriate minimum term for murder cases is set out in statute, which ensures that there is an element of democratic accountability in the sentencing of this most serious of crimes. Schedule 21 to the Criminal Justice Act 2003 provides for three starting points for those offenders aged over 21: a whole life term, 30 years and 15 years. A court may adopt a 30-year or 15-year starting point for an offender who is aged 18, 19 or 20. There is a separate starting point of 12 years for all murders for offenders aged under 18 at the time the offence was committed. The legislation provides examples of the type of case which would attract the higher starting points, with all other cases attracting a 15-year starting point.

We propose to introduce a new adult starting point of 25 years for murder where an offender aged 18 or over takes a knife or other weapon to the scene of the crime with the intention of using it to commit any offence, or to use it as a weapon, and uses it in committing the murder. The emphasis is on the intention of the offender, since it is the circumstances surrounding the offence which reflect seriousness and distinguish between separate cases. It is these specific aggravating circumstances which would attract the proposed higher starting point. They have been framed to capture the type of case which gives rise to most concern in relation to knife crime. While the focus has, rightly, been on the use of knives, we have included any weapon carried to the scene because there should be no difference in the starting point if the weapon carried was a knife, a screwdriver, a baseball bat or any other weapon. It is not the method of killing that is most important but the intention to carry and use any weapon to kill.

Some issues were raised in the other place about the potential meaning of “knife or other weapon” and there was a discussion around various possible scenarios. I can clarify that under this draft order, “weapon” has its ordinary meaning. Other legislation provides various definitions of knives and offensive weapons for different purposes. However, here it is the intention of the offender which gives the character of the offence, not the character of the knife or other weapon. Ultimately, it will be for the court to determine what constitutes a weapon, as it does in other cases of assault. We predict that it would be unlikely to take the view that the use of hands and feet would be considered a weapon for these purposes unless, for example, a knuckle-duster was used, particularly as the order is drafted in terms of a weapon taken to the scene. However, these provisions may apply where the weapon is a folding pocket knife with a blade of less than three inches. Such a knife may be legitimately carried in public, but if the offender took such a knife to the scene with the intention of use and then used it to kill, the proposed new starting point would apply.

We think it is right that we have maintained the distinction between the starting points for murder using a firearm and murder using other weapons. Knives and many other weapons are legally available in every domestic setting and are most commonly used in the heat of the moment where they are readily to hand. Firearms are subject to much more restrictive legislation and there can never be a legitimate reason for carrying a loaded weapon in public. The reality is that firearms are most often used in serious and organised crime and they have much greater potential to give rise to multiple victims. We consider it right, therefore, to retain a higher starting point for murder using a firearm than that for use of a knife.

We must also bear in mind that the Court of Appeal has ruled that a 30-year starting point for murder using a firearm is usually merited only where there is premeditation. Our proposals considerably reduce the gap where there is premeditated use of a knife or other weapon. The proposed new starting point applies to adult offenders. We are making no change to the starting point for juveniles, which is 12 years for all murders. There are good reasons for this. Sentencing for juveniles is extremely complex and encompasses wider considerations than those which pertain in relation to adults, including considerations of the welfare of the child. If we were to amend the starting point for this kind of case for juveniles, we would have to consider the whole structure of Schedule 21 in relation to juveniles. This is because there is currently only one starting point for juveniles rather than the three for adults. If we were to differentiate for them, we would have to put in place a similar structure to that for adults, and consideration of any such change would take time to do properly and would need primary legislation. However, the court will reflect the age, emotional maturity and culpability of the offender when sentencing a juvenile. For these reasons, where the offender is a mature 17 year-old who committed a murder with a weapon taken to the scene with intent to use it, the minimum term imposed is likely to be closer to that applying to an adult in the same aggravating circumstances.

Our proposals are intended to provide for more transparency and a greater degree of consistency in sentencing; they are not intended to impose a straitjacket on the courts, nor do we wish to do so. The court must be free to impose the appropriate sentence in each case and reflect all aggravating and mitigating circumstances. Schedule 21 provides for that flexibility and the court may arrive at any final minimum term from any starting point; it will be what the court determines proper in the circumstances. Nevertheless, it is important that Parliament should establish what it considers should usually be the starting point in this type of case—public confidence demands no less. These proposals are based on proper reflection of the issues and are specifically targeted on murders where the offender deliberately arms himself with a weapon with every intention of using it to kill. The public have every right to expect that sentencing in such cases should reflect the severity of such a crime. That is why our proposals have been structured as I have just described.

I know there were concerns about the difference between the costs promulgated by the Government and those referred to by the Sentencing Guidelines Council. The council estimated that between 500 and 1,500 additional prison places would be required if a new starting point was set at either 20 or 30 years; we have estimated between 1,000 and 2,000 additional prison places based on the proposed new 25-year starting point. There will be no initial cost and the provision will have no cost for 15 years from the point of implementation, but will increase each subsequent year over a period of about 45 years, which is when the provision will have reached its maximum impact.

In its calculations, the council has simply estimated that the additional 500 places would cost £19 million each year. We have taken the average cost over the 45 years it takes for the numbers to build up to the maximum impact. We have also used the average discounted cost per year, whereas the council has estimated costs at today’s prices. The average discounted cost per year over 45 years is estimated to be between £8.7 million and £13.2 million. On the face of it there appears to be a difference, but that is only because the figures are calculated in a slightly different way. I do not criticise the council for doing that, but we suggest that the Government have calculated the figures in an accurate way.

I hope I have covered all the issues which concerned Members in the other place. I beg to move.

My Lords, I thank the noble and learned Baroness the Attorney-General for introducing the order. I join with her comments about the public concern over knife crime, particularly following the murder of Ben Kinsella and many others over the past few years. It is a growing problem and it is right that we should look at it and address it. I, too, offer our condolences to the families who have lost relations as a result of this growing problem.

As the noble and learned Baroness is aware, my honourable friend David Burrowes in another place expressed his general support for this measure when it was debated there on 12 January. I therefore need not repeat everything he said on that occasion. However, I wish to deal with a number of concerns that have since arisen.

The first concern, which the noble and learned Baroness quite rightly addressed, is the question of the definition of a knife or other weapon. As she put it, it is the intention that makes an object a weapon rather than its intrinsic nature. We all know what a knife is; the other weapon becomes a weapon if there is an intention to use it as such. Therefore a baseball bat—even a cricket bat, dare I say it, in England—or a screwdriver could become a weapon if there was an intention to use it as such. Similarly, although a knife is quite obviously a weapon, there are many legitimate occasions when people can carry knives. As often as not there is a small Swiss Army knife in my briefcase. In the old days it would be there to take stones out of horses’ shoes—we all had knives with a long implement to take stones out of horses’ shoes—but nowadays there is not often that necessity. They normally also have a corkscrew attachment with which to open a bottle of wine, and a host of other things. However, if there is no intention to use such a knife as a weapon, again I take it that it is perfectly legitimate to carry it. I am now happy that I understand what a knife or other weapon means. It would be a matter for the courts because they would have to consider the question of intention when a prosecution takes place.

I also accept that the position with firearms—which has a 30-year minimum rather than a 25-year minimum—is very different. Again, as the noble and learned Baroness put it, it is quite difficult to go out accidentally with a firearm. The noble and learned Baroness referred to the need for premeditation: one could argue that there is premeditation merely in having a firearm on one’s presence, or there is at least a certain recklessness that gets quite close to premeditation in carrying a weapon. I am satisfied with what she has said about that.

My honourable friend’s second question was about increasing the figure to 25 years for those aged 18 and upwards and leaving the figure for those under 18 at 12 years. We are beginning to get something of a discrepancy: it was 12 years and 15 years; it is now 12 years and 25 years with the break at 18, whereas, if I understand the noble and learned Baroness correctly—she will tell me if I am wrong—it used to be at 21. I shall be grateful for her comments on that. That will create a big discrepancy and the Government might want to look in future at whether it might not be appropriate to raise that figure for the under-18s. There will be occasions when two people—one just under 18 and one just over 18—will offend together and very different sentences will be prescribed as a result of this discrepancy.

The third point on which I would like further comment relates to the concerns of the Lord Chief Justice. When he was speaking on behalf of the Sentencing Guidelines Council he thought that there were other ways in which this matter could be addressed rather than by simply increasing the minimum. Having said that, we on these Benches are satisfied that this is the right way ahead. I would be grateful if the noble and learned Baroness will address those points when she replies.

My Lords, I, too, thank the noble and learned Baroness the Attorney-General for introducing the order and for indicating the underlying thinking behind the Government’s intention. It is widely recognised that murder is one of the most heinous of crimes, and nothing I say in the debate will detract from that, nor from the sympathy that is due to the families of victims. I concur with both the noble and learned Baroness and the noble Lord in expressing our deepest sympathy to them. This order can perhaps be traced back to the senseless and brutal murder of Ben Kinsella, whose family’s loss continues, as does our sympathy for them.

I also share with the noble and learned Baroness her expression that the courts should ultimately be free to determine the minimum sentence by taking into account all the factors and that we are debating today where the starting point is. Nevertheless, I wish to strike a note of scepticism in relation to the order. This is born out of a concern that what we have here has come from the school of thought of “something must be seen to be done”, rather than from taking a step backwards and working out what is the right thing to do. To support that view I shall quote what the Justice Secretary said when he and the Home Secretary made the announcement that this order was to be brought forward. Mr Straw said in his press statement,

“I am clear that we will not stop in our efforts to stop kids killing with knives”:

However, as is clear from the order and as the noble and learned Baroness has said, the order does not affect kids because the starting point for those under 18 will still be 12 years even after the order comes into force. It will do nothing for kids.

If, as the Attorney-General said, a mature 17 year-old uses a knife with premeditation, the circumstances may be such that the end point could be the court determining a sentence which is not far distant from that for an adult. However, that could happen at the present time without the need for the order, which does not affect anyone who is 17 years of age.

I sometimes fear that there is a gulf between the kind of rhetoric that the Justice Secretary used in announcing this order and the reality—that it will not have the impact that he claimed—which may be what leads to public cynicism about our political process. I am also sceptical about whether it achieves what the Government claim that it will achieve. Will it indeed be effective in tackling knife crime or, more specifically, murders involving knives? As we have heard, the Government were required to consult both the Sentencing Guidelines Council and the senior judiciary. Responses from those two sources show that that scepticism is somewhat shared. In its response, the Sentencing Guidelines Council made the point that I have already made: that this measure will not deal with public concern about kids carrying knives, and that the need to increase the severity of sentences is well recognised by the courts where the,

“use of a knife appears already to be accepted as an aggravating factor when imposing sentence for murder”.

The use of a weapon to frighten or injure is already an aggravating factor in the council’s guidelines and is deemed highly culpable when the weapon is taken with that intent.

The noble Lord, Lord Henley, talked about the use of a knife and definition of a knife—a point raised specifically by the SGC—and the word “weapon”. It may be too easy for the Government to say, as they do in the Explanatory Memorandum, that the ordinary English usage will determine it, because there could be circumstances when a screwdriver is not deemed to be a weapon. I think that carrying a baseball bat would certainly involve that, but what about a pair of nail scissors, which could be turned into a weapon? Then you get occasions, which by all accounts are relatively common in violent situations involving gangs of youths, when a bottle which has been used with the intention primarily of drinking from it suddenly gets smashed and is then turned into a weapon. The bottle is not brought to the scene of the crime with the intention of using it as a weapon but, as so often happens in cases like this, drink is another factor that leads to the crime.

My concern would be that you could reach the stage, which the Sentencing Guidelines Council warns against, where there is inconsistency, with some cases being considered to fall within the ambit of this order and others not. It is the inconsistency and lack of clarity that the Government have said that they want to try to get away from, but it might actually be made worse or imported by this order.

Also, at paragraph 8.3 of the Explanatory Memorandum, we are advised that the,

“Lord Chief Justice responded on behalf of the senior judiciary and representations were also received from the Judges of the Central Criminal Court”.

However, we are not given any indication as to what the Lord Chief Justice said in his response. As my colleague Paul Holmes said in Committee in another place, the office of the Lord Chief Justice was approached to try and ascertain what kind of response he made. It is only fair to say that the information that we got suggested that there was scepticism on his part and the part of the senior judiciary about the merit and efficacy of this measure. Gun and knife crime cannot be directly compared, because guns are often associated with multiple killings and serious organised crime, whereas knives can be available in many ordinary domestic settings. There is little deterrent effect from the proposed change—that was another view expressed—and judges already take the use of a knife into account as an aggravating factor when coming to a decision as to the appropriate starting point.

If both the Sentencing Guidelines Council and the Lord Chief Justice have cast doubt on whether the measure will have the effect intended and claimed by the Government, it might be useful for the noble and learned Baroness to indicate what the Government heard from the Lord Chief Justice and how they respond to the specific concerns that he appears to have raised.

I apologise for bringing up what may seem to be legal niceties, but that is what we are here to do. The Minister made things clear in her introduction, and the Explanatory Memorandum refers to an offender aged 18 or over who takes a knife or other weapon to the scene of the crime, with the intention of using it to commit any offence. However, sub-paragraph (2) of new paragraph 5A, which is to be added to Schedule 21 to the Criminal Justice Act 2003, states:

“The offence falls within this sub-paragraph if the offender took a knife or other weapon to the scene intending to … commit any offence”.

It does not state, “intending to commit any offence with that knife”. As I interpret it—I may be totally wrong, and I welcome assurance that I have got it wrong—the offender could have taken a knife to the scene of a crime intending to commit a crime of a non-violent nature. At it stands, if something happened and the knife was used, that would bring the offender within the ambit of this provision. Is that what is intended? If the element of premeditation is essential, as I think the noble and learned Baroness said it is, that is not clear from the way in which the sub-paragraph is phrased. If that is not clear, we could get into a situation. The Court of Appeal has indicated that a 30-year starting point would not be appropriate in cases of gun crime where there was no premeditation. If premeditation is not a requirement, knife crime could end up with a higher starting point than unpremeditated use of a gun. I know that that is not what is intended, but I welcome reassurance that that is clear.

I thank the noble and learned Baroness for her explanation of the costs given by the Government’s estimate and by the Sentencing Guidelines Council. It is helpful to have that on the record. The government figure used in the Explanatory Memorandum—about £11 million—is an annual average over a 45-year period, but we should be talking about a 30-year period, because none of it will kick in until the first 15 years have expired. The figure of £11 million will probably be closer to £16.5 million after the first 15 years.

Given the objective of this order, one of the most important points is that the Government accept that the important issue in trying to tackle knife crime and murders involving knifes is the fear of being caught. I believe that is the greater deterrent. Paragraph 3.9 of the evidence base attached to the Explanatory Memorandum states:

“A key factor for the prospective offender is the probability of detection. Knives are relatively easy to conceal and dispose of. Given the detection of gun crime is higher than knife crime, the incentive to use a knife rather than a firearm may be significant. Similarly, where the costs of acquiring weapons may have a significant impact, the ready availability of knives and other sharp objects means that acquiring these is relatively easy compared to other weapons e.g. guns”.

I do not dispute the factual nature of that, but it indicates that the Government accept that the fear of being caught is a key factor. You cannot punish unless you catch, so perhaps the focus is wrong. The focus should be on detection because only then can punishment come into effect. I am somewhat sceptical that the young thugs who commit these crimes do the cost-benefit analysis suggested by the Explanatory Memorandum.

I have far more experience north of the border than south of it. Knife crime is a serious problem in Scotland and is usually combined with drink. The usual explanation, which by no means mitigates the crime, is that young people—young men in particular—take knives with them because they know that others are out with knives, and it might be that they will need a knife for self-defence. That is not a cost-benefit analysis; it is a culture that we have to tackle. The important thing is trying to find ways in which detection can be more effective.

I conclude by drawing attention, as did my colleague Paul Holmes in another place, to the so-called Cardiff model, based on the work of Professor Jonathan Shepherd, who is chairman of the violent crime task group of the Cardiff Community Safety Partnership. He took casework from the accident and emergency unit in a hospital in Cardiff, because he found out that many of the cases that he was dealing with never came to the notice of the police. He regularly had to repair people who were the victims of knife crime. He succeeded in anonymising the data with regard to the location of the violence, the type of weapon used, the number of assailants, the day of the week that the incident occurred and the time of the incident. Engaging in intelligent policing then allowed the police to deal with that information. If X nightclub was a spot where there was regular violence on a Friday at 11.30 pm, that is where the police focused their attention. It might be outside another nightclub on a Saturday or in the early hours of Sunday morning. Getting that information was a rolling programme. It could be updated if there was some displacement of the crime because the police were effective in one area. Clearly, that information would come through as well.

Interestingly, in Cardiff since 2002, when I understand this project started, overall accident and emergency violence-related attendances have been reduced by 40 per cent. Cardiff moved from mid-table to being the safest city in a Home Office list of 15 similar cities. The Home Secretary, Mr Alan Johnson, asked for a report on this in October 2007. What has been done to disseminate what would appear, on the surface, to be the good and effective practice that was covered in that report? I acknowledge that the Government have deployed several measures, engaging with the police in more visible policing, but there would appear to be something worthwhile there.

My colleague Chris Huhne made several freedom of information requests to hospital trusts. In an article in the Times on 30 March 2009, Mr Huhne wrote:

“There are 150 hospital trusts with emergency departments in England. Of the 123 that have replied, just 20 per cent are co-operating with their local police force in providing Cardiff-style data. Nearly four out of five are not helping the police”.

However, the Crime and Disorder Act 1998 imposes a responsibility on health, local government and police authorities to work together.

My final plea to the Minister would be for some assurance that that kind of effective policing can be taken forward. It is a far more effective way of tackling the outrage of knife crime and murder by knives than the provisions that we have in this order.

I join noble Lords in congratulating the Minister on this initiative and the clarity with which she explained its content. I also join in the condolences to those who have suffered in consequence of murder.

I regard the 2003 Act, brought about by the decision of the House of Lords in Anderson v Home Secretary, as one of the wisest developments of the past decade in the law of murder. I regard it as a failure that we have not somehow been able to partition the punishment for murder into those areas which require proper partitioning, rather than having a blanket overall punishment. This is not levelled at this Government alone. I am not the first nor, I am sure, the last to make those comments. It is entirely proper that one should set a high penalty, at a starting point of 25 years, for the use of a knife in bringing about murder.

Having said that, I am somewhat intrigued by the wording—which is, I think, the same as that quoted by the noble and learned Baroness—that appears at paragraph 7.1 of the Explanatory Memorandum and explains the scope of this measure,

“25 years for adults who murder using a knife or other weapon taken to the scene with the intention to commit an offence or of having it available for use as a weapon”.

The scope of that can be considerable. If the intention is to deal with a situation where a person uses a knife intending to cause grievous bodily harm or to kill, I can well understand it. Those are the two areas of mens rea relevant to murder. I could also well understand it if with “knife” one said ejusdem generis, that is, “or similar weapon”. However, the trouble with using just the word “weapon” is that a person might have a relatively innocuous weapon that is intended to be used for a relatively innocuous purpose—for example, for no more than joining in an affray. If some of the wording is left as wide as that, it seems to me that there will be difficulties. Having said that, I have little doubt that the discretion of a wise and sensible judge would cure practically all these difficulties.

I tender my apologies to the noble and learned Baroness and the Committee in that I am already late for an urgent appointment and will therefore beat a hasty retreat.

My Lords, I support the order and thank my noble and learned friend the Attorney-General for her exposition. In the context of this debate, are figures available for, say, 2008, if not for 2009, regarding the level of knife crime? If such figures are available, would it be possible to know how many people over the age of 21 committed such crimes, as well as those in the age brackets 18 to 20 and 12 to 18? That might help us better understand the context of the debate.

My Lords, I shall deal with my noble friend’s last point first. I do not have those figures with me today, and I am not sure whether we have the precise data. My noble friend asks for a breakdown according to age, but I am not confident that we have those figures. However, I certainly take his point and undertake to ensure that he receives them if they are available.

I turn to the issue that the noble Lords, Lord Wallace and Lord Henley, raised in relation to the court’s position. I understand that, on the face of it, there appears to be some minor difference, but I do not think that the views of the Sentencing Guidelines Council or, indeed, the judiciary depart very much from those of the Government. The council and the Government share the view that has been expressed in this Room; namely, that knife crime is a very serious offence and it needs to be dealt with robustly. As noble Lords will know, the courts have not hesitated to do so, particularly where it is clear that an individual has used a knife with the intention of causing harm. Therefore, agreement in relation to those matters appears to be solidly based.

The Sentencing Guidelines Council’s response highlighted a number of issues. With regard to the law on murder using a knife, it highlighted that seriousness is normally related to the circumstances of the offence; for example, premeditation rather than simply the method used is important. We listened very carefully to that point. We also took on board the view that the council expressed about intention. Your Lordships will see that the provision that we have brought forward is focused on the intent of the individual, because that is what will determine whether the higher starting point is merited. Someone may take a knife, a bat or a weapon of some sort with them to commit a burglary. If they took that weapon with them to commit a criminal offence—they did not find it there, they did not just come across it and it was not used in the heat of the moment—and they then used it to kill, then the judge, exercising his or her discretion would be entitled to start at the higher starting point. Your Lordships know that it does not stop there because the court is entitled to take into account mitigating features that might cause it to reduce it significantly or aggravating features that might cause it to go higher. We have created clarity that when you commit a premeditated offence and where there is the intention to take a weapon with you for use in the commission of a criminal offence, the court is entitled to make a judgment on whether that is appropriate.

The noble Lord, Lord Wallace, and, I think, the noble Lord, Lord Henley, asked about the discrepancy between the 17 year-old and the 18 year-old. We come right back to intention, circumstances and consequence because the court can take into account the maturity of the 17 year-old and is entitled to take into account the maturity of the 18 year-old. Noble Lords will know that age is not always the determining factor of maturity. My right honourable friend the Secretary of State for Justice talked about “kids”. Your Lordships will know that many of us who have reached a certain age still talk of anyone under 30 as a kid. One can be forgiven a certain looseness of tongue that may not necessarily detract from the maturity that some individuals have at 18.

It is important for us to look at it in the round and say that Parliament is putting down a marker or a starting point, but no more. I absolutely agree with the noble Lord, Lord Wallace, about the wonderful work that has been done by Professor Shepherd in Cardiff. Not only has Professor Shepherd looked at knives, he has also done a huge amount of work on domestic violence and has been instrumental in helping us to collate information across health, so that we are now making an appreciable difference. I agree that one cannot look simply at this legislative provision. We must look at what we are doing on family intervention projects, safer school partnerships, neighbourhood policing teams, community prosecutors, the triaging that we are now—I hope—giving to victims and offenders to identify what risks there are for them and how we can intervene in their behaviour, and the work done on domestic violence. That work has made a significant impact. If we look at the causes why some of the young people that the noble Lord, Lord Wallace, talked about take knives with them and the fears that they have, many of them come from dysfunctional families, so we are helping those families.

The Committee should know that we have, together, done a great deal; I am talking about statutory, non-statutory and not-for-profit agencies and individuals. On domestic violence, Sylvia Walby’s research, which was used in part by Professor Shepherd, said that it cost us £23 billion in 2003. Her most recent research shows a reduction of £7.5 billion, so I take on board everything that the noble Lord, Lord Wallace, said about that and assure him that Professor Shepherd’s work is being used extensively. He has participated in the Tackling Knives Action Programme that encompasses a range of police forces across England and Wales. Fifteen force areas, plus the British Transport Police, are now targeting over £5 million this year on tackling teenage crime.

We are focusing very hard on prevention; we are working with retailers nationwide to prevent the sale of knives to under-18s and have given teachers new powers to search for knives at school. That goes hand in hand with educational work to convince teenagers that carrying a knife does not make them safer and actually puts them in more danger. South Wales is part of the Tackling Knives Action Programme and probably has the best practice. It has been identified by the Home Office under that programme. I hope that I have said enough to reassure the noble Lord that we are right alongside him when it comes to that issue.

Will this make a difference? We believe that it will, and that it will be one of the issues that contribute to long-term delivery. On the point made by the noble Lord, Lord Henley, the Lord Chief Justice believes that murder in these aggravating circumstances should attract a severe sentence, as I have indicated. He has also recognised the public concern about it. I hope that I have said enough to reassure noble Lords that the provision is needed and that it can be safely left to the courts to apply it with the necessary sensitivity, differentiating in every case between the nature and quality of the act complained of, so that the sentence really fits the crime.

I still have some anxiety about the wording. The provision refers to the offender taking,

“a knife or other weapon to the scene intending to … commit any offence”.

It does not necessarily mean intending to commit any offence using that knife. He might be using the knife to slash some tyres which, however reprehensible, is not on the same level as murder. Would that bring the accused or convicted person—we have come to the sentence—to the starting point of 25 years, albeit that after that some mitigating factors could possibly be taken into account? Is there not a concern that as it is drafted the measure may be too wide?

My Lords, we would say not. We are looking at intent and at someone who takes a knife or other weapon with them with the intent of committing a criminal offence. We say that if they have done that and they kill someone the court is entitled to start at 25 years. I give the example of someone taking a knife with them to commit a burglary. Perhaps they take the knife with them to use it for a criminal offence. Let us say that the householder apprehends them and they then use that knife to kill that householder. They have taken the knife with them to the place where they are going to commit the offence in order to commit an offence, but then use the knife, which they took for the criminal offence of burglary, to kill. It was the fact that they took the knife with them to commit an offence that enabled them to use the knife to kill the householder.

In those circumstances, it must be right that the court is given the opportunity to say that it will start at its starting point. That does not mean that that is where it will stay, because it can take all factors into account, but it sends a very clear message that if someone goes out from their home or where they live and takes a weapon with them with the intent of using it to commit an offence, they are at risk of a 25-year starting point and will have to argue with the court about why in their particular circumstances that is not fair and should not apply because the intention was something else. It changes the balance from where we start. If someone takes a knife with them to commit an offence—does not pick it up or, in the heat of the moment, find an implement or weapon and use it—that should be marked by a higher sentence. That is how we think that it will be used.

Motion agreed.

Local Government (Wales) Measure 2009 (Consequential Modifications) Order 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Local Government (Wales) Measure 2009 (Consequential Modifications) Order 2010.

My Lords, we have brought this draft order forward at the request of the Welsh Assembly Government to make a few minor technical amendments to the Government of Wales Act 2006. The amendments relate to inspection and audit fees charged by the Auditor-General for Wales, and are consequential on the Local Government (Wales) Measure passed by the National Assembly for Wales last year. The amendments are needed to ensure that the measure operates as intended and that fees charged under the measure are treated in the same way as the fees that are charged under existing legislation.

The Local Government (Wales) Measure 2009 has several broad purposes. First, it replaced the system of “best value” in local government with a new “local government improvement” regime which introduces a broader set of duties and powers for service improvement by local authorities. Secondly, it reformed the process for producing community strategies and requires local authorities and other local service providers to collaborate in developing and implementing a long-term strategy for enhancing local well-being. Thirdly, it joined these two processes together, requiring local authorities to reflect strategic objectives in service improvement.

Local government in Wales has long been devolved, and these changes are all within the legislative competence of the National Assembly. However, one small element of the package of changes is outside it. It is that element which is addressed by the order before the Committee today.

In replacing the “best value” regime, created by the Local Government Act 1999, the measure also replaced the inspection and audit regime under the 1999 Act. Independent audit is of course vital to public accountability and can stimulate improvement. The measure reflected that principle. It also streamlined and simplified the role of the Auditor-General for Wales and the Wales Audit Office in inspecting and auditing local authority performance. In particular, it gave the Auditor-General greater flexibility to support performance improvement and to report clear findings which enhance local and national accountability.

The measure also sought to preserve the principle that public audit and inspection takes place on a quasi-contractual basis between auditors and the bodies that they audit, and is funded by fees levied on audited bodies rather than from central government. This is a widely accepted practice across the United Kingdom, for two main reasons. First, it maintains audited bodies’ responsibility for, and ownership of, the audits to which they are subjected and avoids a general charge on the public purse. Secondly, the extent and thus the cost of an audit generally reflect the level of risk within an organisation. Funding it via fees provides a further incentive to public bodies to improve their standards of corporate governance and performance management, leaving them liable to a lower fee.

The local government measure empowered the Auditor-General to levy fees for audits and inspections as previously, but it could not deal with the accounting treatment of those fees. Under Section 120(1)(c) of the Government of Wales Act 2006, the default position is that the Auditor-General must surrender any income that he or she receives to the Welsh Consolidated Fund. The Act also makes exceptions to that rule to allow the Auditor-General to retain income from specified sources, including fees charged under the Local Government Act 1999. This means that best-value audit and inspection is funded from fees and preserves the general principles which I described earlier.

The local government measure made no equivalent provision for fees charged under the new improvement regime because it had no power to do so. In general, the Assembly is prohibited from passing a measure which amends the Government of Wales Act 2006. There are obvious constitutional reasons for that general rule, but in this case it creates a problem. This order is designed to solve it. The Auditor-General would have to surrender fee income to the Welsh Consolidated Fund, and audit and inspection work under the measure would have to be financed centrally from that fund. That would be contrary to established practice across the United Kingdom, which I have already outlined, and would diminish the local ownership and effectiveness of such work. The draft order is designed to correct that situation and allow the Auditor-General to retain fees charged under the measure. It would also ensure that the Assembly’s audit committee could not examine estimates of the Auditor-General’s fee income under the measure, just as it cannot currently examine fee income under the Local Government Act 1999. This reflects the fact that the Committee’s remit does not extend to the Auditor-General’s work in relation to local government performance.

In making these changes, the draft order seeks to maintain long-established principles and practices which exist for sound reasons of public management and accountability. The Wales Audit Office strongly supports the draft order and, indeed, believes that it is vital to make the draft order before the start of the 2010-11 financial year, when audit work under the measure will begin. I commend the draft order to the House. I beg to move.

My Lords, some Members of the Committee may be surprised to find me here—and, indeed, I am surprising myself. The reason for my presence is that my noble friend Lord Glentoran has been delayed in a meeting to deal with the somewhat fraught situation in Northern Ireland. He forewarned me that that might happen and asked me to stand in his place.

As the Explanatory Memorandum notes, this is the first order under Section 50 of the Government of Wales Act 2006, which provides for changes necessary in consequence of an Assembly measure being passed. This is yet another historic first in Welsh devolution, and a fairly significant one, because what is provided for here is a change in the content of Schedule 8 of the original 2006 Act as a result of an Assembly measure. It is a curious boomerang effect, which some of us may think more curious as we consider the possible unintended consequences.

Am I right in thinking—I believe that I am—that out goes the “best value” principle of the Local Government Act 1999 and that its place is taken by an “improvement” criterion, which is very much looser and is not confined to “economy, efficiency and effectiveness”? This is clearly the case, and it is confirmed by paragraph 7.1 of the Explanatory Memorandum accompanying the order. I have not seen a copy of the Assembly measure, so I must ask whether improvement is defined there, and how. Without definition, improvement can mean all sorts of different things to different people and authorities. Definition is necessary to achieve a measure of consistency between authorities of the same kind. I would have thought that that was desirable.

I shall be very brief in my comments on article 2, amending the 2006 Act so that the Auditor-General retains income from fees and does not have to pay them into the Welsh Consolidated Fund. How will the use and expenditure of these fees be accounted for? It is a fair and an important question. Auditing systems are just as fallible as any other, and financial integrity and accountability must have a very high priority, at all times and in all organisations, especially those supported by taxpayers’ money.

The same article 2 amends the Act,

“so as to prohibit the Audit Committee of the National Assembly … from examining any … of the annual estimate of the income and expenses of the …. Auditor General”,

to quote the Explanatory Memorandum. Why should this prohibition be required? I am mystified, and surprised that the Wales Audit Office appears to have agreed to this restriction on its powers because it is content that the order be made. We ought to have a clear answer about why the exclusion of the Wales Audit Office is included because unless we do, people will read between the lines with suspicion in their hearts, and I shall not blame them.

I have looked at this measure and the consequential modifications that it addresses. This order is relatively simple, because the modifications are consequential upon changes made to the relationship between the Auditor-General for Wales and the local government improvement scheme, which allows fees charged under the previous best value scheme to be retained by the Auditor-General for Wales rather than being paid into the Welsh Consolidated Fund. The noble Lord, Lord Roberts of Conwy, asked some persistent questions with his usual incisiveness, and I shall be interested in the answers.

I have not looked into this document in the detail that the noble Lord, Lord Roberts, has, but on the surface, it seems to be an eminently sensible arrangement. It connects the accountability of the Auditor-General for Wales and local government in Wales. In evaluating the performance of local government, the fees going directly to the Auditor-General for Wales rather than into the Welsh Consolidated Fund should result in improved administration. The new scheme reflects community needs in Wales over a longer term. Communities in Wales are often small and isolated, so to secure long-term development, they require sustained schemes to secure success. A one-size-fits-all best value scheme may not provide conclusive, constructive solutions in local government in Wales. I have seen the downside of that on a number of occasions.

This order goes in the right direction and is necessary. The fact that the Wales Audit Office strongly supports it is a good reason for supporting it, albeit that the barriers to examining the detail, which were highlighted by the noble Lord, Lord Roberts, require explanation.

I rise not to debate the content of the order but because, like the noble Lord, Lord Roberts of Conwy, I am rather intrigued by the procedures and processes by which this order has arrived here. Am I right in believing that my noble friend told us that a legislative competence order for local government allowed the Welsh Assembly Government to create the Local Government (Wales) Measure 2009? Will he tell us when and how? I presume that, during the passage of that measure, someone discovered that the original order did not allow the provisions in this order to be put into the measure. I think my noble friend said that this was outside the original legislative competence order. We are being asked to repair an omission that occurred when the original LCO was brought forward to cover the situation.

I find that interesting and intriguing. Although the 2006 Act clearly anticipated that possibility, and the order is being proposed under that Act, would it not have been possible, and perhaps more consistent with the whole process, for a new LCO to have been brought forward empowering the Assembly to amend its legislation in the proper manner and therefore adopt what is included in this order? Am I right in believing that that option was available to the Assembly Government? It would have been more consistent with the way in which the original competence was achieved.

One consequence of this process is that the order has not been scrutinised by the Welsh Affairs Select Committee. As we will see when we come to the next order, the role of that Select Committee, and indeed of the Assembly committee, has been very important. Legislative competence orders have been drafted, and in many cases redrafted, as a result of very good scrutiny by both the Welsh Affairs Select Committee and the committee in the Assembly, and, as I know from having recently been a member of the Constitution Committee, by this House’s Constitution Committee. There have been a number of examples where, as a result of our scrutiny, changes and amendments have been made, and in the next order we will be looking at where that clearly happened.

However, as I understand it, this order has not been the subject of any form of scrutiny by the Select Committee. I went to find out what it had said about the order because I have very much admired the work that it has done on legislative competence orders. I was informed that it had not done anything because this is a parliamentary statutory instrument and therefore does not fall within the committee’s scrutiny remit in the context of LCOs.

If, in order to achieve the purpose of this order, the Assembly Government had come forward with an LCO to acquire such a power, they could have proceeded by amending their own measure in that way. I hope that I have not got hold of the wrong end of the stick.

If I have not, then I think that there is an issue here. If it had been in the form of an LCO, proper scrutiny by the Welsh Affairs Select Committee would have taken place, but that has not happened. Therefore, I assume that the Statutory Instruments Committee has scrutinised it, although I have not had the chance to check the trail of events leading to the order. I am very grateful that my noble friend has assured me on that point. It was originally a draft order, which, I am glad to say, required affirmative approval. I hope that at least the Statutory Instruments Committee has scrutinised it but I rather regret that an order of this kind has not been the subject of Select Committee scrutiny. I certainly value such scrutiny and it has been invaluable to the deliberations of this House and the other place.

My Lords, I am grateful for the scrutiny that has been vouchsafed on this order by the Committee today. If there is any suggestion that it has not been scrutinised enough in the past, we have certainly made up for it over the past 20 minutes or so. I assure my noble friend Lord Rowlands that the Joint Committee on Statutory Instruments has scrutinised the order, so he can rest assured that the House has done its job in those terms.

The noble Lord, Lord Livsey, indicated that he thought that the noble Lord, Lord Roberts, had been pertinent in his questions. I did not. I thought he was extremely pertinent in one question but extremely impertinent in another. He said that we would be surprised to see him in his place but I am absolutely delighted to see him in that position. As we all know, he has graced that position for many years and has served in a ministerial role in the past.

However, the noble Lord, Lord Roberts, believes that today is the occasion when we can scrutinise and challenge the principles of the measure passed by the Assembly—not this order, but the principles of the measure. The legislative Assembly thinks that the narrow concept of best value ought to be replaced, as the noble Lord, Lord Livsey, indicated, by a concept more appropriate to a strategic approach to local government in Wales. If the Assembly reaches that judgment in the age of devolution, I am not going to have the noble Lord, Lord Roberts, come to this Committee and say, “But I disagree with the principles on which the legislative Assembly is working”. That is its rightful power.

I described the order as being largely technical and I will come to the points that have been appropriately raised. The noble Lord, Lord Roberts, raised some entirely appropriate points but his main point was not appropriate. It strays too far and I am not prepared to accept it.

My noble friend Lord Rowlands never strayed from accuracy in his analysis of the issue, save in one respect. This is not a mistake; there is no oversight; this is not covering up a slip. It covers up, over a minor and technical area, for the fact that the settlement does not include this minor, technical aspect but covers the broad issues. That is why I am in dispute with the noble Lord, Lord Roberts, on whether the broad issues should have been the subject of any controversy within the Committee.

It could have been dealt with in another way. We could have had a new legislative competence order to deal with this minor matter which involves no new principle. Everything to do with the order follows principles which obtain across the rest of the United Kingdom and have already been in practice over a long period. Nothing new is suggested here but it was outside the competence of the Assembly to establish this.

Consequently, the Assembly has this principle in its new make-up. I am not prepared to countenance the noble Lord’s point except in general terms. I am always grateful for his views in general terms, but not if he is going to knock over the measure on an issue of principle of that kind. The Assembly does not have the competence for this technical aspect. It was not thought that a major legislative competence was necessary for this, but rather that it could be dealt with through a relatively minor order that was restrictive, specific and dealt with well established practice. I hope my noble friend Lord Rowlands will accept that answer.

I am going to accept it, obviously, but I would like clarification. Is my noble friend saying that it would not have been possible to have included these rights and this content in the original legislative competence order? In other words, if the order had been drafted to include the provisions that are now in this order, could they have been included in the original LCO?

My noble friend will accept that when one is dealing with major issues in legislative competence, one concentrates on the major issues and that, from time to time, a small, technical dimension may not be included. I would not accept that what is being covered up here is an error or a mistake. It is, rather, that in dealing with the measure and the competence, the measure was concerned with the principles obtaining with regard to local government and this is an aspect of audit. My noble friend will appreciate that this is a distinct and small dimension which is separate from the process of government in the obvious sense. Audit is about scrutiny and holding to account. Within that framework, what is and was being done and obtained is exactly the same as in audits of all devolved Assemblies and of the United Kingdom Government as a whole.

If my noble friend will forgive me, I shall shy away on this occasion. I am more than prepared to own up to the very infrequent mistakes that Her Majesty’s Government—this Administration—make; one or two over the past decade come to mind. This one is less an issue of mistake: it is a recognition that something needed to be done because the legislature said that it did not have the competence to do it without an order.

Motion agreed.

National Assembly for Wales (Legislative Competence) (Environment) Order 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the National Assembly for Wales (Legislative Competence) (Environment) Order 2010

My Lords, the order has been approved by the National Assembly for Wales and was debated in the other place last week. It has had the advantage of pre-legislative scrutiny by the Constitution Committee of this House, by the Welsh Affairs Committee in the other place and by a committee of the National Assembly for Wales. Therefore, whatever anxieties were harboured about the previous order, I can certainly give this one a clean bill of health in terms of effective scrutiny. It deserved such scrutiny because it is an order of obvious importance, and the draft order has been improved as a result of that scrutiny. I shall return to the changes in a few moments when I have established a number of other matters.

In the debate in the other place, Members noted that although the order has been simplified to an extent as a result of scrutiny, it remains complex. Indeed, the Government are obliged to accept that the order is complex. This is not surprising given the wide-ranging nature of its subject. After all, it encompasses many aspects of environmental policy and touches on a large number of policy areas, including energy, transport and defence. I notice that, in the environmental policy, it touches upon aspects of the treatment of waste. The last time I appeared in this Committee Room to deal with a waste order—admittedly for England—I had an extremely difficult time. Such was the complexity of the order and the questions addressed to me, I can vouch that this area of environmental policy produces issues that are complex to deal with.

Environmental challenges such as air pollution, litter and waste management affect us all. The Welsh Ministers currently have a wide range of executive powers related to the environment but these powers are somewhat piecemeal, with gaps preventing the Assembly Government delivering specific policies and restricting reforms to particular areas of environmental regulation. For example, in the area of waste management, Welsh Ministers do not have the power to ensure that high priority waste materials are prioritised for collection, or to prevent key recyclable materials being sent to landfill. Every Member of the Committee will know about the drive across the whole of government to reduce the use of landfill and to ensure that that which can be recycled is recycled.

The order would give the National Assembly for Wales a power to make its own laws—assembly measures—to protect and improve the environment, and to legislate to help the Assembly Government implement its environmental strategies and create a more sustainable Wales. The democratic process would also be enhanced by enabling the Assembly to decide on legislation over the environment, an area where Welsh Ministers currently have powers and the Assembly none. The order will provide competence to legislate to protect and improve the environment in three main areas—waste, pollution and nuisances—which affect the quality of the local environment.

Matter 6.1 relates to:

“Preventing, reducing, collecting, managing, treating or disposing of waste”.

Matter 6.2 relates to:

“Disposal of waste in the sea where the waste has been collected, managed or treated on land”.

Matter 6.3 relates to:

“Protecting or improving the environment in relation to pollution”.

Matter 6.4 relates to,

“Protecting or improving the environment in relation to nuisances”,

which are further defined in the order.

The order includes a number of fixed, or specific, exceptions to each of these matters, and general, or floating, exceptions which apply to all matters in Schedule 5 to the Government of Wales Act 2006. These reflect the need to specify the often quite complex boundary between devolved and non-devolved areas of policy relating to the environment. Every Member of the Committee will be only too well aware of the difficulties attendant upon that.

The committees which scrutinised the proposed order made a number of recommendations which were largely concerned with making the order easier to understand, providing clarity about what is within and outside the Assembly’s competence and avoiding unnecessary duplication. We made a number of changes to the order following that level of scrutiny, which was extremely helpful to us, and they are reflected in the final draft before the Committee today. The changes are the result of careful consideration of all the recommendations by both the Government and the Welsh Assembly Government.

The first change is to create two matters dealing with waste, rather than having the single waste matter contained in the proposed LCO. Matter 6.1 now deals primarily with waste on land and Matter 6.2 deals with waste on land which is disposed of in the sea. The change has been made to help to clarify the scope of the Assembly’s competence over waste. It has also enabled the definition of “Wales” to be rationalised so that it is the same as that which has applied in other LCOs. Scrutiny of the proposals both in the other place and in Cardiff Bay highlighted this as an area of concern. We think that we have now addressed it.

Secondly, a number of exceptions and definitions have been removed from the legislative competence order, and others have been clarified to sharpen up their meaning. This reflects the concern of the scrutiny committees that the order should not be so technical and complex as to become unintelligible and inaccessible to the lay reader. I am all too conscious of the fact that orders present a challenge to all noble Lords when they address them in debate; we must have even more sympathy for the lay reader who has an interest in these matters. If ever I saw a number of representations from members of the general public, they related to the difficulty of understanding regulations around waste management, and of course some of it reflected a clear interest on the part of those who earned their living from the field. If we are to engage the general public in constructive action on the environment, we must make absolutely certain that they understand just what we are driving at and what they are meant to do. No area is more important in these terms than waste management.

I assure the Committee that the legislative competence order includes only those exceptions and definitions that we consider to be absolutely necessary; that is, necessary to ensure that the legislative competence being conferred is accurately described and that the boundaries between devolved and non-devolved areas of competence are quite clear.

I am pleased to note that the Welsh Assembly Government have recently published a short guide to the order, which is available on their website. A key recommendation arising from the scrutiny of this LCO was that easily readable guidance be prepared for the lay reader to understand it better.

Concerns were also expressed during scrutiny about the general, or floating, exceptions that the LCO inserts into Schedule 5. The Government and the Welsh Assembly Government believe that it is necessary to include the exceptions in the order. They would apply to all matters in Schedule 5 to the Government of Wales Act 2006 but have a particularly strong relationship to environment policy, especially to pollution. Assembly measures which may be passed using the powers conferred by this LCO may have a direct bearing on electricity generation, nuclear power, road transport, shipping, aviation and water policy. Including these general exceptions clearly delineates the respective roles of the Government and the Welsh Assembly Government in areas of policy that impact on the environment. This will enable us to work together in a co-operative and co-ordinated way, as we take the work forward.

The majority of exceptions fall within three key areas of national policy interest—energy, transport and defence. The exceptions in a fourth policy area, the marine environment, reflect the fact that the legislative regime for managing the waters around the United Kingdom—including important new roles for Welsh Ministers, which we debated during the passage of the Marine and Coastal Access Act 2009—has been set out recently in that Act.

The Committee will appreciate that, although the order remains relatively complex, the changes that we have made simplify it and make it easier to understand. Importantly, none of the changes significantly affects the scope of the proposed competence being conferred on the National Assembly. Further detail on the rationale for the effect of each exception is provided by the Explanatory Memorandum. Pre-legislative scrutiny has helped us to refine and improve the draft order now before us. It is wholly appropriate that the National Assembly would be able to legislate on waste management and environmental protection improvement. Accordingly, I commend the order to the Committee.

My Lords, the Minister is absolutely right to say that this complex-looking order was thoroughly discussed and considered in a committee of the other place as recently as last Tuesday. It also featured as a case study in the Welsh Affairs Committee report of 15 January entitled, Review of the LCO Process. The order is closely related to the committee’s key finding that LCOs must be more user-friendly and that a more straightforward approach to drafting is required. Those who have studied this document will readily agree. The Minister implied that he also agreed.

Incidentally, the chairman of the Welsh Affairs Committee, Dr Hywel Francis MP, and its Members are to be highly commended—if that is not out of place—for their scrutiny and development work to improve the quality of LCOs over recent years. Similarly, our own Constitution Committee, which until recently included the noble Lord, Lord Rowlands, has done sterling work in the same field and we are all indebted to it.

On the content of the order, all I have to say is that the National Assembly and the Welsh Assembly Government must be aware of the havoc that the recession is causing to our industrial landscape in Wales. We can no longer take great companies and employers such as Bosch at Miskin and Rio Tinto at Holyhead as semi-permanent features of that landscape. Nor can they be replaced in a hurry—and who knows what further damage is yet to come? Today’s announcement of 0.1 per cent growth in GDP in the last quarter of last year does not give us much clearance from the recession, although technically we are out of it. However, even now and later this year unemployment may well rise and companies continue to fail.

Many of the Assembly’s environmental policies and ambitions were formed in the decade of comparative prosperity and reflect those benign conditions which, alas, no longer prevail. For example, the Explanatory Memorandum talks about the environment strategy setting,

“the direction for the next 20 years”,

and establishing a,

“framework to achieve an environment which is clean, bio-diverse healthy, and valued by the people of Wales”.

I suggest that the havoc caused by the recession may well affect any such strategy with a 20-year perspective. In other words, much of the content of the environmental policies described in the policy background section of the Explanatory Memorandum attached to the order will almost certainly have to be adapted—and so will the mindsets behind these policies as the need to provide jobs, preferably in wealth-producing units, becomes ever more pressing. Those are my comments on this order. I shall not go into the detail of it; I accept the ample explanation that the Minister has given.

My Lords, this is an extremely complex LCO. Even after the massive scrutiny that has taken place on it, when contrasted with the previous LCO that we considered on modifications, this is a much more complex order. Witness the massive length of the Explanatory Memorandum document. It clearly affects the Welsh environment and waste disposal.

When looking at this LCO in the other place, my colleague the Member for Ceredigion said that,

“it will enable the Welsh Assembly Government to pursue with coherence, and with an holistic approach, the areas of prevention, reduction, collection management, the disposal of waste and the protection and improvement of the environment in relation to pollution and nuisance”.—[Official Report, Commons, 19/1/10; cols. 9-10.]

If we look at what is in front of us—for example, in describing its legislative context—I note that it covers no fewer than 10 Acts of Parliament and eight European Union orders. In the UK context, I note that it stretches from the Clean Air Act to the Anti-social Behaviour Act. Much of the legislation covers waste management, and the overall context is that of the One Wales programme of government. It also incorporates sustainable development—a commendable objective—and specifically addresses climate change, including carbon reduction objectives.

The LCO adds to exceptions already contained in the Government of Wales Act 2006 and takes amendments on carve-outs from existing exceptions that relate to listed matters. Although I can see why it has become necessary to do this, largely because of new matters introduced by the Assembly that impact on existing legislation, it still seems overcomplicated to me. Indeed, I also commend the work of the Welsh Affairs Select Committee in doing much of the spadework to make this LCO more understandable. In fact, that demonstrates the value of close scrutiny and amendment.

Issues such as pollution and environmental harm are clearly important. The need to define the meaning of the implications for the environment in this LCO’s contents is very detailed indeed. The noble Lord, Lord Roberts of Conwy, addressed the question of the downturn in the economy and its impact on Wales. All I can say is that there are not enough companies based in Wales with research and development capacity. We have an enormous mountain to climb in terms of entrepreneurial activity that is based in Wales. The noble Lord, Lord Roberts, referred to the departure of Bosch and other important matters. I remember an occasion when LG was welcomed to Newport, but it never took off.

We have to work very hard to ensure that we have our own industry, our own basis and our own employment opportunities in Wales. I can see, however, that under this LCO lawyers and inspectors will be scanning this legislation and its detail with a great deal of interest. Let us hope that, in the environmental and public interests of Wales, they reach the right conclusions. This legislation is required and I hope it will be interpreted rather more simply than it appears to be in these documents.

My Lords, anybody who reads the Explanatory Memorandum will realise—because it spells it out very well—that the transfer of environmental powers is long-standing, considerable and pre-dates the establishment of the Welsh Assembly by many years. Old Welsh Office Ministers started gaining such powers under the Control of Pollution Act 1974. Even before that, I had the privilege, in my ancient ministerial days of 1969 to 1970, and from 1974 to 1975, of leading the Derelict Land Unit. It was established in the wake of the terrible disaster at Aberfan to deal with both the justifiable fear of the dangers of tip waste and the scarring of the landscape. It was a remarkable success story of innovation and imagination, and pioneered much work in the technology of tip clearance and dealing with old coal waste.

We are not in new territory at all. First, Welsh Office Ministers before the establishment of the Assembly exercised considerable environmental powers, devolved to them by extensive legislation listed, as the noble Lord has explained, in the Explanatory Memorandum. Secondly, as the memorandum also explains, Welsh Office Ministers, and now the Welsh Assembly, have important roles in designating the designation orders under European Union law. Thirdly, Assembly Ministers have inherited an extensive range of powers in subordinate legislation to be able to use such legislation as a result of the earlier legislation. I utterly support and endorse the content of this LCO. All that the order will do is match the executive powers that have been transferred, and the transfer of functions of one kind or another over many years, giving a legislative competence that mirrors those executive orders and powers. Therefore, I wholeheartedly support the thrust and intention of the order.

Quite rightly, the Select Committee on Welsh Affairs and the Constitution Committee raised several concerns about the original draft order. If we can pass messages to those who will enjoy the power of legislation at the Assembly, I hope that when the Assembly Government come to draft a measure flowing from this order, they take particular note of paragraph 33 of the Select Committee’s report about cross-border issues. The report says:

“There is some potential for Measures brought forward on the basis of this LCO to give rise to cross-border issues in relation to business and with regard to possible perverse effects of differences in regulations for environmental problems, such as fly-tipping”.

Although it should not involve any amendment to the LCO, I hope that that particular concern will be expressed when the measure that flows from the order comes to be drafted. We do not want businesses worrying that the law across the border will be so different that they find it difficult to operate in any context, let alone that which the noble Lord, Lord Roberts of Conwy, noticed.

While I am a passionate supporter of transferring the powers, I was surprised that, for the second time at least, the original LCO dealing with the environment contained a whole host—a clutch—of exceptions in fields totally unrelated to the environment. The Constitution Committee had previously expressed considerable concern in relation to the carers order about dumping into orders which have well defined purposes a list of exceptions totally unrelated to them. In the original draft environment order, there were fields for economic development, highways and water and flood defences, all of which it has now been accepted are not relevant to the point and purpose of the order and have thankfully been removed.

As my noble friend rightly said, it is not our duty to get involved in drafting measures, but let us send a gentle but stringent message to drafters of future LCOs that we will be vigilant and liverish if we see draft orders, such as the carers order and with the original draft of the environment order, including things that are totally or virtually unrelated to their specific subject and content. We do not want another set of unrelated exceptions pushed into a future order that have no bearing on the main purpose. I hope that that important message will go to the Assembly.

Otherwise, as the noble Lord, Lord Roberts of Conwy, observed, and as the interesting review of the LCO process in the Select Committee’s report reveals, an amazing convergence and consensus have developed around the way in which we scrutinise orders. I support the positive comment in that report about all the committees involved in the scrutiny—I suppose that I am being boastful, because I had a minor part in the process—that:

“It is a matter of record that on every occasion so far the observations of these committees have been constructive, complementary and consensual, and the Welsh Assembly Government has responded positively. There is no doubt that almost all the LCOs so far passed into law have been improved as a result of the scrutiny process”.

That has been verified. I think back to the Welsh language competence order, which became a very different animal as a result of proper scrutiny. Here is another example of an order that has benefited considerably from the process of scrutiny that has been put in place. Therefore, I fully support the point and purpose of the order, but I also support the invaluable scrutiny that has amended the original order to make it much more palatable today.

My Lords, I am grateful to noble Lords who have indicated their broad support for the order while identifying some criticisms which need to be taken on board. In some cases, I would think that they have been taken on board. I very much appreciate the point made by the noble Lord, Lord Roberts, about the contribution of others to the committee’s deliberations to improve the order.

We owe the Welsh Affairs Committee a government response to its report, which we will provide in due course. I second the proposition put forward by the noble Lord that we should note the valuable work that it does, which is of great assistance as far as matters in Wales are concerned.

The noble Lord, Lord Roberts, was right to indicate that these are difficult economic times and that Wales, in the same way as the rest of the United Kingdom, must look towards to its enterprise laurels to ensure that it creates new jobs, new enterprises and new productive capacity, and recovers from what is after all the worst recession for more than a generation.

However, the environment and environmental challenges also produce opportunities. An awful lot of enterprises are going to be concerned with how we meet the challenges of climate change, and not least the whole question of how we generate energy. The important thing is that the United Kingdom, and Wales in particular in this case, should be at the forefront in grasping those opportunities, although I am only too conscious of the very serious effects of the withdrawal of a major employer such as Bosch from Wales, with a serious loss of jobs. The noble Lord, Lord Livsey, is right that it was a matter of regret that LG did not eventually invest in Newport. He has always been an extremely fair analyst of these situations. I was involved in politics in Newport at that time and he will know just how strenuously everyone concerned bent every sinew to try to land what would have been a very impressive investment in Newport and more widely in Wales. For a long time, we lived in serious expectation that we would be successful. I hasten to add that what caused LG to make a different decision had nothing to do with environmental considerations, or anything like that. However, it reflected the obvious fact that there is always some tension between investment and development and aspects of the environment.

I accept the point made by the noble Lord, Lord Roberts: we have to be aware that there is no legislation without cost, and environmental legislation also involves some costs. Of course, we will also reap the ferocious costs of failure to tackle environmental issues successfully, which is why we should applaud the fact that Assembly Members are eager to take on board the powers that will give them the opportunity to do their best for Wales in these very challenging circumstances.

The noble Lord, Lord Livsey, went on to identify that it is necessary to have a holistic approach towards environmental issues, and of course that means that matters become complex. The interrelationship between different factors can add to the complexity, and therefore the Government are bound to accept the anxieties expressed by every noble Lord who has spoken in the Committee about the complexity of this order and the challenges that it presents. We should be about ensuring that orders are eminently comprehensible by the ordinary man and woman in the street, as well as by those of us who spend a great deal of our time seeking to master the detail.

I was grateful to my noble friend Lord Rowlands for reminding us that 30 or 40 years ago, before the age of devolution, Ministers in Wales wrestled with these issues and had to meet these challenges. I think he would be the first to recognise that they are probably now more challenging. The whole environmental relationship to the age of climate change is more demanding. There is an impact on the economy and a necessity for change, and none of us pretends that change is easy. Change imposes burdens on people and presents difficulties. I very much bear in mind his vast experience of that period of time and thank him for reminding us that Welsh Ministers had to address these issues on behalf of the country, but these are particularly challenging times and it is good to see the Assembly seeking these powers to enable it to meet those challenges.

My noble friend Lord Rowlands raised an important cross-border issue. Of course, certain environmental issues know no borders—least of all the one between England and Wales—but he is absolutely right about the pernicious and gruesome social offence of fly-tipping. You cannot go any distance from a serious farmer’s farmhouse without him saying that one of the problems that he has got to face is people using his land for illegal fly-tipping and that the cost of clearing it up after it has been dumped is considerable. I appreciate the point my noble friend raised and I have no doubt that the Assembly will have to address that dimension.

My noble friend Lord Rowlands has vast experience on the matter of exceptions because he served on committees which scrutinised a range of these issues. The exceptions were included because they are relevant to the matters which the Assembly is taking on board. The original proposed LCO applied transport exceptions to the environment matter. The exception does not have to be in the same field. Of course it is more appropriate if it is related to the same field because it is easier to justify, but it does not have to be directly in the same field, and issues such as transport, energy and water interrelate very closely with the environment. It is not surprising, therefore, that it should have proved necessary to include exceptions in those areas. However, I take on board the point that he made. I have no doubt that the work of the committee on which he used to serve, together with the scrutiny that we are involved in when dealing with legislation at this stage and the constant pressure that we should exert to make our legislation intelligible, will impact on those doing the work in the Assembly and the draft legislation with which they are concerned.

We will not engage our communities unless our legislation is perceptive, comprehensible and fits the purpose for which it is intended. We all realise that in the real battle for the environment, education and understanding are almost the most important dimensions of all. We will not get conscious and effective public action unless the public are fully engaged, and getting the legislation right and comprehensible is very important in those terms. I thank noble Lords for their contributions.

Motion agreed.

Committee adjourned at 6.50 pm.