Monday, 8 March 2010.
Arrangement of Business
My Lords, before the Minister moves that the first statutory instrument be considered, I remind noble Lords that, in the case of each statutory instrument, the Motion before the Committee will be that the Committee do consider the statutory instrument in question. Motions to approve the statutory instruments will be moved in the Chamber in the usual way. I am sure that there will be Divisions today. If that is the case, the Committee will adjourn for 10 minutes.
Child Trust Funds (Amendment) Regulations 2010
Considered in Grand Committee
My Lords, these draft regulations introduce new government payments to the child trust fund accounts of all disabled and severely disabled eligible children. As noble Lords will know, the child trust fund is a long-term savings and investment account for children born on or after 1 September 2002. Children are eligible if they live in the UK, child benefit has been awarded to them and they are not subject to any immigration restrictions.
The child trust fund is an important part of the Government’s savings strategy. It is an ambitious initiative that will ensure that every child, regardless of their background, has a financial asset at the age of 18. It promotes positive attitudes towards saving and will help to strengthen the financial education of both children and adults by bringing financial education to life.
When parents are awarded child benefit for a child, they are automatically sent a child trust fund voucher which they can use to open the account of their choice. Almost three-quarters of parents have so far chosen to open an account on behalf of their child. However, if, for whatever reason, parents do not use the voucher within 12 months, the Government open a stakeholder account with a financial provider on behalf of the child. That ensures that no eligible child misses out on a child trust fund.
The Government contribute £250 into the child trust fund accounts of all eligible children when it is first opened and again when the child is aged seven. Children from lower income families receive a further £250, both initially and again at the age of seven. There are also special arrangements in place to ensure that children in care, who may not be in a child benefit award, do not miss out on an account.
The Child Trust Funds Act contains powers to allow the Treasury to make regulations that provide for further government payments to be made into accounts of eligible children, such as those that we are debating today. These powers have been used before, for example to introduce government contributions at the age of seven. Recognising that children with disabilities may need extra support to make the best of their potential on entering adulthood, the Chancellor announced in the 2009 Budget that the Government would contribute an additional £100 into the child trust funds of disabled children every year, with severely disabled children receiving a total of £200 each year.
Children entitled to any rate of disability living allowance at any point within a tax year will receive £100 into their child trust fund, and children entitled to the highest weekly rate of care component of disability living allowance at any point in the year will receive £200 into their child trust fund. That is in line with the definition of severe disability used elsewhere in the tax system.
These new payments will start to be made in April 2010 for children who were entitled to disability living allowance in 2009-10. The Government intend to make these payments to disabled children throughout the life of their child trust fund. This secondary legislation provides for payments until 2018, when the first eligible children turn 16 years of age, because that is what is achievable under the current powers.
The Government intend to make an amendment to the child trust fund primary legislation before 2018 to enable payments to be made to the child trust fund accounts of all eligible disabled children, including those aged 16 and 17. Payments will be made into the accounts of disabled children using the same process used for other government contributions, such as payments at age seven. Child trust fund providers are already familiar with that process and will not have to make any changes to their IT infrastructure to cope. Therefore, the impact on business will be minimal.
Her Majesty’s Revenue and Customs will extend the existing data feeds from the Department for Work and Pensions to get information about which children are entitled to disability living allowances and thus entitled to these new child trust fund payments. Those payments will be made automatically and no claim will be required on behalf of the child.
Noble Lords may be aware that these regulations have already been debated in the other place, where both main parties offered no objection to their introduction. The Government recognise that children with disabilities often have greater financial needs on entering adulthood and therefore need extra support to make the most of their potential. The regulations provide for the Government to make annual contributions of £100 into the child trust funds of eligible disabled children and £200 into the accounts of severely disabled children starting this April. I beg to move.
My Lords, I thank the Minister for introducing the order. He will be aware that our policy is to cease child trust funds except for those who are eligible for additional payments. On that basis, we will not object to the order. That said, I am not convinced that this extra £100 or £200 a year for disabled children is necessarily the right way to spend taxpayers' money on such children. It is highly likely that there are greater priorities for them than a bit more money in their child trust fund account which matures when they reach 18.
We are a party committed to saving, and so we support the least-advantaged in our society being able to start adult life with a small amount of capital behind them if that improves their ability to manage their long-term finances. However, the Minister will be aware that, when introduced, this was an evidence-free policy. A few moments ago, he said that the policy promotes positive attitudes to saving, but that is far from proven. We shall find out whether the existence of a modest capital sum will result in an adult saving habit some way into the future. We will not know for at least another dozen or so years whether the money is used wisely or, as many of us feared when the Bill was considered in your Lordships’ House, to fund a large party or other forms of frivolous consumer expenditure. The lack of evidence taints the policy not only for the better-off but also for those who are in receipt of additional payments—that is, largely those whose parents are on benefits, and disabled children of course. However, lack of evidence has never stopped this Government from legislating or spending taxpayers’ money.
One of the alleged benefits of the policy was that it would encourage additional savings for children by parents and others associated with the children. The latest HMRC statistics show that only 24 per cent of all accounts have attracted any additional savings, and only 1 per cent had the maximum of £1,200 added last year. The average was less than £300 for those who did save extra, but that is only £70 per child overall.
I do not believe that there is any proper evidence—as opposed to the opinion of certain child trust fund providers who have an interest in the continuance of the product—on whether the extra contributions are additional to other savings or whether they merely substitute for savings which would otherwise have been made in another form.
We are clear that an evidence-free policy which has an annual price ticket of some £500 million is not the best use of scarce resources. But, as I said earlier, we are content for this order to proceed.
Opposing any payment to disabled or severely disabled children seems churlish and heartless. However, we have consistently opposed the child trust funds. The fact that more money is being poured into an initiative that we have never supported does not mean that we support it, however worthy the recipients.
The Minister talked about the debate in the Commons. Unless I misread Hansard—and it is possible that I have—I do not think that there was a debate in the Commons. The statutory instrument was agreed without debate. Therefore, it is wrong for him to say that we supported this in the Commons.
I agree with almost everything that the noble Baroness said except about the lack of evidence. It would be very difficult to have evidence in a case such as this one, where one is putting money into a pot that cannot be realised for a significant number of years. Our opposition to child trust funds is based on experience rather than evidence, and on what we know from our own experience about the consumption patterns of teenagers. It has been our view from the start that this is not an effective way of spending government money; that the incentive for additional payments would inevitably benefit those with above-average incomes; and, therefore, that the distribution effects of the programme are not what we would want to see.
The Minister said that 75 per cent of parents are exercising discretion about where the funds go, but what proportion of parents in the poorest constituencies are exercising this discretion? The evidence in the past has been that the poorest families have not taken up the opportunity to invest the funds and that they may almost be unaware of the funds’ existence.
We simply do not believe that the child trust fund is the most effective use of government money. To spend more money on it seems, at this point, perverse, and I am pretty confident that whichever Government are in power during the next Parliament, the scope of child trust funds will be severely restricted if the scheme is not abolished in total.
My Lords, my noble friend mentioned a figure of £500 million. Is that the cost of the existing scheme or the anticipated cost of these additions? I would like to know both those figures. As we are now in much more stringent economic conditions, can we know where the savings are coming from to meet the additional cost?
My Lords, the noble Lord, Lord Newby, questioned whether there had been a debate in the other place. I was referring to the Eighth Delegated Legislation Committee, which debated this issue on Wednesday, 10 February. The report I have is headed Parliamentary Debates, and I read with confidence what is put in front of me.
The positions expressed by the noble Baroness, Lady Noakes, and the noble Lord, Lord Newby, are consistent with the stance that their parties have taken on child trust funds. I understand the point that the noble Baroness makes about evidence on whether a savings habit is established, but the nature of such an intervention is that conclusive evidence can be available only once we have experience. We are pleased, from the research we have been doing and the uptake of child trust funds, that there is real interest in child trust funds, and we continue to work to promote awareness of them among eligible members of society.
The noble Lord, Lord Hamilton, asked about the cost of the scheme. I have a note here somewhere which I think corroborates the figure that the noble Baroness gave as the absolute cost of the scheme. I believe that the incremental cost of this proposal is of the order of £35 million or so a year. The overall cost of the child trust fund will be £520 million in 2010-11. That includes the disability payment, which will be £30 million in the current year, in addition to the £490 million cost of the birth and age 7 payments. The financing of that will come from Exchequer resources, raised through taxation, and is already factored into the Chancellor’s Budget. The noble Lord, Lord Newby, asked about the take-up in constituencies. I am not sure whether we have data on that but I will investigate; if we do, I shall of course write to all Members participating in the debate.
It is clear, given that we have child trust funds, that although there may be different attitudes between the different parties on these funds, nobody today wants to stand in the way of a proposal to make additional contributions in respect of children suffering from disability or severe disability. That is appropriately and correctly noted, and with that I commend the regulations to the Committee.
Health and Social Care Act 2008 (Regulated Activities) Regulations 2010
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010.
Relevant documents: 8th Report from the Joint Committee on Statutory Instruments and 11th Report from the Merits Committee.
My Lords, there is one set of regulations and one order in front of the Committee. The regulations deal with the new registration system for health and adult social care providers of regulated activities. The order makes consequential amendments required when the existing system under the Care Standards Act 2000 is replaced by the new registration system. The Committee will recall that the Health and Social Care Act 2008 put in place provision for a new system of regulation of healthcare and adult social care to be operated by the Care Quality Commission.
I shall set out briefly what the regulations do. Part 1—Regulations 1 and 2—deals with the definitions in relation to the regulations. Part 2—Regulation 3, along with Schedules 1 and 2—then sets out the detailed scope of the new registration system; that is, the delivery of those activities which will require a provider to be registered with the Care Quality Commission. The activities cover both health and social care. Part 2 sets out the stages at which different providers will be brought into the new registration system.
On 1 April 2010, NHS providers of healthcare-regulated activities will be brought into the new system, followed by private and voluntary healthcare and adult social care providers of regulated activities on 1 October 2010. The regulations then bring in primary dental care and private ambulance providers on 1 April 2011 and, finally, primary medical care providers on 1 April 2012. Noble Lords will recognise that this is an enormous workload for the Care Quality Commission; by April 2012, around 50,000 providers will have been registered. By phasing in the introduction of different providers in this way, the Care Quality Commission will be able to manage the workload effectively and give applications for registration the scrutiny that they require.
Part 3 of the regulations—Regulations 4 to 7—deals with requirements relating to the person carrying on or managing the regulated activity. These regulations set out requirements such as the requirement for the registered person and registered manager to have the necessary skills, qualifications and experience to carry on or manage the regulated activity. Part 4—Regulations 8 to 24—then sets out the 16 essential safety and quality requirements with which registered providers must comply. These cover areas such as meeting nutritional needs, and respecting and involving people who use services.
Part 5 of the regulations—Regulations 25 to 27—creates the offence of failing to comply with any of the requirements set out in Part 4, with a penalty, on summary conviction. of up to £50,000. The actual level of the fine in individual cases is decided by the courts. Under Regulation 27, the Care Quality Commission must issue a warning notice in respect of a breach of regulations prior to bringing prosecution proceedings. Part 5 also makes provision for the guidance and code of practice that registered providers and managers must have regard to for the purposes of compliance with the regulations.
Part 6—Regulation 28—deals with fixed penalty notices that may be issued by the Care Quality Commission in lieu of prosecution. Schedule 4 sets out the offences that are fixed penalty offences, including failure to comply with registration requirements, and the penalty notice amounts ranging from £300 to £4,000 depending on the offence. Regulation 28 sets out various administrative matters in relation to the issuing of penalty notices, such as the timescale for payment.
In addition to the regulations, we are also considering the Health and Social Care Act (Consequential Amendments No. 2) Order 2010. This technical order makes amendments to a number of Acts that cross-refer to various kinds of establishments defined by the Care Standards Act 2000. As these provisions in the Care Standards Act will be repealed on introduction of the new registration system, the amendments are necessary to ensure that the various Acts continue to cover those same types of establishments by replacing the references as required.
The Care Quality Commission took over the regulation of health and adult social care in April last year. Since then, it has already put in place a new registration system for NHS providers of healthcare; they are currently required to comply with a single requirement in relation to healthcare-associated infections. For private and voluntary healthcare and adult social care providers, the commission has continued to operate the registration system under the Care Standards Act 2000. The regulations that we are considering now are the next step in strengthening the regulatory system and bringing together the regulation of health and adult social care into a single integrated system. This new regulatory system will make a number of improvements to the current systems, bringing together providers of health and adult social care from all sectors into a single regulatory system for the first time. The enhanced range of enforcement powers under the Health and Social Care Act will mean that the Care Quality Commission can take swift and effective action to ensure that those using regulated services are protected from unsafe care and treatment. The system will provide the public with assurance that the essential safety and quality are being met.
Under the current registration system, the Care Quality Commission registers establishments and agencies. This approach has become inflexible, particularly as care has moved from the acute sector into community settings. Under the new system, as it is the activities that are regulated, it does not matter where the activity is carried out. When making decisions about what activities should be within the scope of the new registration system, we made use of the information available on the potential risks and suffering that might be associated with a type of care. We considered the vulnerability of people who were receiving care, and we looked for evidence that bringing this care into registration with the Care Quality Commission would reduce these risks. We have consulted widely and engaged with stakeholders in drawing up this list of regulated activities, but we are nevertheless committed to keeping it under review.
As noble Lords may be aware, the regulations replaced earlier draft regulations that we withdrew in order to address issues raised by the Joint Committee on Statutory Instruments in its report. To ensure that the revised set of regulations that noble Lords are now considering deal appropriately with the issues raised by the committee, we worked with the legal adviser at the JCSI and departmental lawyers.
The key feature of the regulations is the registration requirements set out in Part 4. These set the essential levels of safety and quality that all providers of regulated activities will have to meet. They also define the outcomes that patients and service users can and do expect from the services that they receive. Failure to meet the registration requirements will result in enforcement action by the Care Quality Commission.
The registration requirements are intended to be outcome-focused without being overly prescriptive. They set out the outcomes that people who use services should be able to expect, while giving the provider flexibility to decide how best to deliver the outcome. The Committee may recall that my department consulted on the topics that these requirements should cover while the Bill was being debated. The responses to the consultation informed the drafting of the regulations, and we subsequently consulted on the detailed wording of the requirements. During Committee debates on the Bill, the issues of nutrition and complaints came up a number of times. I am sure that the Committee will be pleased to see that Regulation 14 covers “Meeting nutritional needs” and that Regulation 19 covers “Complaints”.
As set out in the 2008 Act, the Care Quality Commission must issue guidance that sets out how it will judge providers’ compliance with registration, and take this guidance into account in making its decisions. Final drafts of the Care Quality Commission’s Guidance about Compliance, together with the department’s code of practice on healthcare-associated infections, have already been made available to providers to support their preparations for the move to the new system.
The commission’s Guidance about Compliance provides further clarity about how providers can meet the registration requirements. However, we recognise that when it comes to bringing prosecutions, absolute clarity is essential. Regulation 27 therefore puts in place a compulsory mechanism requiring the commission to issue a warning notice prior to commencing prosecution proceedings. This will ensure that a registered person is informed of the conduct that the commission considers constitutes a failure to comply with the regulations. It will also give the registered person the opportunity to remedy the breach within a specified time. If they fail to take such remedial action, the commission will be able to bring a prosecution. I hope the Committee will agree that this achieves the right balance between focusing on the outcomes that matter to service users and providing clarity to providers before prosecution proceedings are taken.
I know that some concerns have been expressed about the size of fine attached to these offences. Failure to comply with any of the safety and quality registration requirements can result in harm to individual patients and service users. Preventing such harm has to be the central purpose of this system of registration. As such, it is right that the maximum fine—I stress, maximum—available to the courts is set at a high level of £50,000. In setting any fines, magistrates will follow current sentencing guidelines and consider, among other things, the seriousness of the offence and the ability of the registered person to pay.
The £50,000 fine applies only to the most serious offences. A further set of regulations subject to the negative parliamentary procedure—the Care Quality Commission (Registration) Regulations 2009—were laid before Parliament in November last year. These set out other requirements that providers of regulated activities must meet, such as statutory notifications of adverse events, and deal with other matters, such as provisions relating to the publication of information on enforcement action. Failure to comply with the requirements in these other regulations is also an offence, with a maximum penalty of level 4 on the standard scale, currently £2,500. The higher maximum penalty of £50,000 applies only to the 16 essential safety and quality requirements in the regulations that we are considering today.
Moreover, noble Lords should note that the Act also gives the commission a range of other enforcement powers to use where providers are not complying with registration requirements. These include the power to suspend or cancel registration, the power to issue a warning notice, the power to issue a fixed penalty notice in lieu of prosecution and the power to attach conditions to a provider’s registration.
These enforcement powers enable the commission to take a flexible and proportionate approach to breaches of registration requirements and mean that people who use services will see prompt and effective regulatory action where providers are failing to comply with the requirements. The Care Quality Commission’s enforcement policy, which has been published, sets out how it intends to use these powers. The new registration system will give the commission a stronger role than under the current regulatory system to ensure that all providers of regulated activities, including the NHS, are providing services that meet central safety and quality requirements. Their tough enforcement powers will enable the commission to take prompt action when providers are not delivering the outcomes that people can rightly expect. I commend the regulations and the order to the Committee.
My Lords, the Committee will be grateful to the Minister for her explanation of these regulations, which, as she said, take us to the next stage of the journey for the Care Quality Commission in setting out the full range of its statutory functions as a regulator of health and social care services. In reading the regulations, as I have, I am struck immediately by the length of the list of regulated activities and, hence, the sheer size of the task that the commission faces. The commission has within it a lot of dedicated and hard-working people, and not all of the activities listed have to be tackled immediately. Dentists and GPs are not to be registered until 2011 or 2012. Nevertheless, I feel that I should start by asking the Minister the simple question of whether the CQC's programme of work to register all relevant providers by 1 April this year or, as the case may be, 1 October, is on track. Is she aware of any hint from the CQC that the commission may find the timetable difficult to meet?
It is a slight pity that the regulations are so difficult to interpret. Perhaps it is just me but, if we look at Schedule 2, we find a list of general exceptions to the regulated activities named in the earlier part of the order. However, paragraph 5 of Schedule 2 sets out a list of exceptions to the exceptions listed in paragraph 4. Paragraph 5(e) even has an exception to the exception to the foregoing exception. I had to think about that one quite hard. But that is not all, because we then have to remember that paragraphs 3, 6, 7, 9 and 11 of Schedule 2 are only exceptions for a limited length of time, as is made clear in Regulation 3 at the beginning of Part 2. I am still unclear whether hyperbaric therapy, which is excepted in Regulation 5 and then de-excepted from the exceptions in Schedule 2, is, or is not to be, a regulated activity.
On a more substantive level, will the Minister explain for the record why defence medical and dental services are not to come under the wing of the CQC and why medical services provided by employers or government departments are not covered?
One of the criteria which the CQC is to use when deciding whether or not to register an individual or a partnership as a registered provider of regulated services is whether the person or persons concerned are of good character and physically and mentally fit to carry on the regulated activity. There are similar requirements in relation to managers and those in charge of organisations other than partnerships. What tests will be used to determine whether someone is of good character, and how do you prove that you are? It does not seem to me that an absence of criminal convictions is sufficient to meet that test. How does a person show that he or she is physically and mentally fit? Unless the guidance on these things is crystal clear, we may be in danger of creating hurdles that are not simply bureaucratic but also highly subjective. That surely cannot be the way to go.
I do not intend to spend time discussing each and every regulated activity. However, there is one activity which perhaps merits special attention, as it is one to which the Minister referred, which we have debated on several occasions in the past—the one listed in Regulation 14, meeting nutritional needs. The regulation is framed in a way that I cannot fault. It speaks of the need to ensure that service users are protected from the risks of inadequate nutrition and dehydration by means of the provision of a choice of suitable and nutritious food and hydration in sufficient quantities to meet service users' needs. My question relates to the standards that the CQC will take as its benchmark for this purpose. There is an initiative in train, which the Minister will know about, called the Healthier Food Mark, to be promoted in public sector organisations. This potentially has a lot going for it, but, unfortunately, in my view, it is flawed.
There are three levels of Healthier Food Marks: bronze, silver and gold. If the idea is to raise the quality of nutrition in hospitals to the highest standard, it is questionable whether having three levels of attainment will serve to achieve that. The CQC is concerned, above all, with upholding minimum standards of quality. It might be thought that a bronze certificate under this initiative served to define what those minimum standards should be. However, the bronze Healthier Food Mark sets standards that, frankly, could be achieved by an organisation that was not doing a great deal. For example, the need to cut down on salt is emphasised only in relation to cooking vegetables without added salt, but there is nothing about making sure that salt levels in other food are reduced. Nor is there any detailed prescription about keeping the level of saturated fat to an acceptable level. There is nothing about portion sizes or offering a choice of drinks without added sugar.
The problem is that anyone seeing a bronze certificate on the wall of a hospital may well conclude that that hospital was achieving a level that was only a rung or two below excellent. What incentive would the hospital have to improve its performance in those circumstances? It would surprise me if the Healthier Food Mark initiative did not in some measure act as a guide or benchmark to the CQC. I should be grateful if the Minister could say something to indicate how the CQC will be approaching its functions in this area.
I would, however, like to move on to a larger set of issues. The Merits Committee of your Lordships' House drew attention to a number of concerns relating to the way in which these regulations have been framed. The first of these is what it saw as a lack of sufficient clarity in the wording to enable someone to decide whether they are or are not in breach of the regulations. To the extent that this criticism is justified, which I believe it may be, it is a serious concern bearing in mind that the maximum penalty for breaching the regulations is set at £50,000, which is a large sum of money. Despite the Minister’s remarks just now, it is not clear why it has been thought appropriate that all breaches of the regulations should potentially attract a penalty of that order. I would like to ask the Minister why it was felt right to set the maximum figure at that level for offences that are not directly to do with harm to patients.
What all this opens up, of course, is the potential for highly subjective judgments to be made by inspectors, which then rebound on service providers. We are told that the regulations have been deliberately framed so as to focus on outcomes rather than process. As a principle, I am all for outcome-based measures; but the problem is that inspectors are powerful people, and if they decide that they wish to be prescriptive in pursuit of a particular outcome, it is likely that few service providers will feel brave enough to argue with them. The Merits Committee has therefore raised the question of how inspectors will be trained and how it will be possible to achieve consistency of assessment around the country. What we cannot have is marked differences of approach being taken, depending on geographical location. This really has to be a concern that the CQC takes seriously, and I should be glad to hear what the Minister has to say about it.
Nor is this a theoretical concern. I have spoken to several people who have already been on the receiving end of the CQC's ministrations. Apart from the rudeness and officiousness encountered in inspectors—which I confess dismayed me—they report something even more serious, which is an overzealous quest for information which has little or no bearing on the quality of care given to patients and service users.
The proprietors of a small outpatient clinic, in order to be registered, had to complete a voluminous form, some of which was barely comprehensible to them, and much of which demonstrated, if proof were needed, that the tick-box, process-driven approach to regulation is alive and kicking. Questions about gas meters and the positioning of electric sockets are not obviously to do with patient outcomes. One doctor who sought advice from a CQC inspector on how to complete a form was told quite candidly that the CQC was collecting a great deal of information that no one there really knew how to interpret.
It is as if questions had been included in the registration form simply to preserve the appearance of thoroughness against the remote risk of a rare adverse event. We can never legislate against the rare event; rare events will happen. They are rare because most professionals are competent. However, in the eyes of the CQC, most professionals are slapdash and need checking up on to make sure that they are achieving basic levels of patient care. One doctor told me that he was almost on his knees with exhaustion after the paperwork between him and the CQC had gone backwards and forwards several times long after his registration had been agreed.
I am afraid that we may have unwittingly created a monster. We are in danger of losing sight of what is common sense. If we are not careful, the result will be that we will land up with a bureaucracy that is effectively out of control. I recount this feedback from service providers only because the stories they have told me are so consistent. The questions with which I leave the Minister are these: will she make it her business to look at first hand at the registration processes employed by the CQC, and will she bring the comments that I have made to the attention of the chief executive?
My Lords, I echo the remarks of the noble Earl in his appreciation of the Minister, who is trying to take us through the regulations. Like him, I have a degree of sympathy for her because of the complexity of the task that she faces. These regulations are by no means straightforward, and the complexity is to be seen not in the number of pages but in the way that they are approached.
I start positively by saying that I am very supportive of and sympathetic to the requirements for professional regulation and the regulation of activities of this kind. In fact, I have spent a good deal of time trying to promote and develop further regulation—for example, in psychological therapies—to which I will return. My colleagues and I are not instinctively against the notion of regulation. I am very supportive of the way that health and social care are being brought together in a relatively integrated way, at least in principle, as far as the regulatory approach is concerned. The integration of health and social care has been a fact in my part of the United Kingdom for many decades, and it has been largely positive for those receiving the care and for the various professionals working together to provide it.
However, from then on, I become rather concerned about the way in which the regulation and the integration are being brought forward. Although it is appropriate to integrate health and social care, it may not necessarily be appropriate to provide precisely the same approach to the regulation of a large National Health Service acute hospital as to that of a small individual practitioner or group of practitioners in a rural area, for example. As the noble Earl has pointed out, the difficulty with this rather monolithic body, the CQC, is that it tends to try to produce an approach to regulation that will fit the large, almost industrial, bodies that are many of our acute hospitals, and then apply it to much smaller entities, for which it is not appropriate.
Paragraphs G48 to G77 on pages 83 to 88 of the impact assessment—no minor document—look at the impact on small providers but there seems to be no appreciation at all that a small provider may often be much better than a larger one. It is all couched in terms of whether the smaller ones can match up to the gold standard of the large NHS provider. From recent events, including situations where the CQC has given a positive report, it is absolutely clear that the fact that it is a large NHS acute hospital which has the CQC check of approval does not necessarily mean high-quality service at all. Sometimes it can be covering something quite different.
I am extremely concerned that a perverse incentive is actively at work, which makes it increasingly difficult for the small provider to survive. The only way in which some of them can survive is by coming together into a larger group, which makes it impossible for them to provide the very personal care that is necessary in some circumstances. Indeed, the level of bureaucracy required is quite extraordinary.
I take one example. Many of these matters are predicated on a large acute NHS hospital because that is where the pressure comes from. Another area mentioned in the regulations is the provision of care for those with alcohol or drug addictions. We spoke about this last week in your Lordships’ House. Increasingly, the NHS is not able to provide the services required and there are many such people for whom the NHS is not necessarily an appropriate facility. There are alcohol-free and drug-free therapeutic communities where people provide care and treatment in quite a different therapeutic community context.
Healthcare workers and providers may not fall under any of the titles in this relatively long list; they may be counsellors or psychotherapists who are not currently registered. The kind of care which they provide can be quite different. For example—I reflect back to when I spent some time working in one of these situations myself—in order for the patients to connect with the real world and take responsibility for themselves, they are required to participate in the preparation of food for themselves and others. Although that is clearly an important and beneficial part of the treatment programme in a therapeutic community, it is made completely impossible by regulations which require them to undergo training in food preparation in order to operate in the kind of facilities appropriate for cooks in a large NHS acute hospital. Those required to undergo various training programmes under supervision are members of professions which are not currently statutorily regulated anyway.
I am very sympathetic to ensuring that there are appropriate standards but I fear that we have now come to a counterproductive point in this process of regulation. The process goes something like this: we add on regulations; inevitably there is a problem somewhere; an inquiry brings forward more regulations; and so the amount of bureaucracy increases. When bureaucracy gets beyond a certain point, those involved feel less sense of responsibility and attend more to ticking the boxes and ensuring that the forms are filled out rather than taking responsibility for themselves. The increasing bureaucracy of regulation leads not to increased responsibility but to a reduction in a sense of responsibility, and therefore problems arise. The more bureaucracy there is, the less attention people give to providing care and the more they attend to feeding the machine. I think that we are very much at this point in the NHS.
The question of fees and money also comes into this matter. The result of the organs inquiry, for example, was that the Government had to completely abandon their requirement for 10 per cent of all deaths in hospital to be audited by way of a post-mortem because no one would give permission for post-mortems after that. However, an organisation had been put into being in order to approve, monitor and regulate all mortuaries, so now mortuaries are having to pay thousands and thousands of pounds every year to be regulated and inspected with smaller and smaller numbers of post-mortems being carried out in them. The point has now been reached where some pathologists will end up qualifying without having done very many post-mortems at all. Therefore, the whole process of regulation and bureaucracy is adversely affecting the work.
Those are the kinds of concerns to which I believe the noble Earl was pointing, and in general terms—and, indeed, in some very specific terms—I share them. One body does not have to mean one approach to regulation; one body could have a number of different approaches if it got into thinking in a different fashion and began to understand that a very different approach was necessary for the small provider in community non-acute services compared with the large provider, such as an NHS hospital providing acute services in surgery, obstetrics and gynaecology or medicine. There would be a question of fees and the problem of fines, and there would be the burden of the increased number of administrative staff that small practices—not necessarily medical practices; others as well—would have to take on in order to service this machine. I think that that presents a real danger.
The one reassurance that I found in this process was when looking at the summary sheet of the impact assessment. The noble Baroness’s right honourable friend in another place, the Minister, Mike O’Brien, says almost as his final comment that within three years there will be a review to monitor how proportionate the burden of regulation is to the mitigation of risks outlined in the impact assessment. Whether it is the noble Baroness, her colleague the Minister, another colleague or another party that ends up supervising that monitoring is of course an open question. However, at least there is an assurance that some review will be undertaken at that point. I mention that specifically because I think it will be important for us to review the whole matter after three years.
My Lords, I think that it would have been enormously helpful to have had the input of the noble Lord, Lord Alderdice, during the passage of the legislation. I can see why at this point this measure might seem more complex than I suspect it is. It is complex because it needs to deal with every different type of provider from the very small to the very large and because it deals with health and social care together. However, it is not complex in that it involves one body which is outcomes-focused. I shall come back to that during the course of answering several of the questions because it is very important to bear that in mind.
During the passage of the legislation, we were aware that the diversity of establishments that came under this regulatory framework meant that you would have to look at what the establishments did rather than their size—you would need to address the outcomes of the services that they were providing.
On the specific questions, the noble Earl, Lord Howe, asked why defence medical services were excluded from the regulations. The reason is that defence medical services are primarily primary care services and so would not come under regulation until further down the road. We have, however, asked the CQC to work with the defence medical services to give an independent assurance of safety, although at the moment that would happen outside registration. It is not that they were forgotten but that their interests are slightly different. I suspect that they may be caught as we move forward towards primary care regulation.
Both the noble Lord and the noble Earl raised the question of fines and asked how the sanctions would work. We believe it is right that a significant maximum fine is available to the courts where providers fail to meet the essential requirements and expose service users to the risk of harm. Of course, as we discussed during the passage of the Bill, £50,000 is a great deal of money for a very small provider. However, £50,000 is not necessarily a great deal of money for a very large health provider, so it is important to have the scale that we need. That is why we have set that maximum.
The noble Earl asked about using the term “fit” in the regulations to allow a provider to be a fit person to deliver that service. The term “fitness” comes from the Health and Social Care Act 2008, under which the requirement regulations are being made. It has been used in regulations for consistency with primary legislation. Reference to fitness in the regulations should be read in conjunction with, and implemented with, all the disability discrimination legislation and, indeed, other legislation relating to that. My understanding is that the references to fitness and the tests which are already in place are not only about a criminal record but are to do with people’s qualifications, background, history and a variety of other data which need to be considered.
The noble Earl also asked how prepared the CQC is and whether it will be overwhelmed—I think that was the expression used. It has of course been preparing for this for some time, as, indeed, have the bodies that came in to form the CQC. This month, the commission will write to all providers moving from the current registration system under the Care Standards Act 2000 to the new system in October 2010, informing them how to apply for registration. The intention is to register people in batches from April to August. For each batch, there will be a four-week application window. The commission will write to all providers before their application window to give them time to prepare. In April, the commission plans to launch an online learning module to guide providers through the application process. Hard copies of How to… guides will also be made available to providers, who will be able to contact the commission’s assessors and national contact centre for advice.
The commission’s guidance about compliance will give providers more detail on how it will judge their compliance with the registration requirements. Following on from the remarks about transition, the Care Quality Commission is also responsible for the content of applications for registration under the 2008 Act, so it is making the registration process as easy as possible for providers. However, there will be no automatic passporting through to the new system.
Returning to the question of penalties, the penalty amounts have been set to correspond with the potential impact of any offence on people who use the services. The 16 safety and quality registration requirements set out the essential levels of safety and quality of care that people have a right to expect. Therefore, as I have already said, significant fines are available where providers fail to meet essential requirements.
The noble Earl raised the issue of nutritional needs and made very useful comments about the Healthier Food Mark and the various levels of quality and so on. We will, of course, be assessing registration providers against essential levels of safety and quality. We will be encouraging all providers to provide high-quality services that go well beyond registration requirements. In the case of the NHS, this could be achieved through performance management rather than registration against levels of safety and quality. Therefore, we will be looking for basic levels of safety and quality and then for further activity and progress through levels of bronze, silver and gold.
Both noble Lords raised the issue of bureaucracy. That is an important point, because we would not want this to be an over bureaucratic process. There is always a danger that that can happen, but we are not in the business of creating enormous burdens, particularly on small providers. I hope that, because the system is focused on outcomes and not processes, it will allow providers to meet the requirements in a way that is suitable for their size and the complexity of their services. We anticipate that over a period of time this will reduce the burden on providers, who are already regulated, including small businesses. I take on board the point that the noble Earl made. I undertake to raise with the Care Quality Commission chief executive the points that he made about bureaucracy and to have a look at the forms myself. I have not looked at them in recent times since we did the consultation, but I shall look at them and talk to people and see how they are working. That is a reasonable expectation to place on me.
I believe that I have covered the point about why we want a single set of requirements and why that is a good idea. We hope that the guidance relating to compliance will set out how the commission will judge compliance with registration requirements. It will also set out how we would expect the regulations to be interpreted consistently but how people could ensure that they were being treated fairly and in a consistent fashion. We have to see how that guidance works out, but that is a very important point.
The new registration system’s focus on outcomes is essential to ensuring that providers deliver the care and treatment that people want rather than focusing on processes. We have already discussed that. Under these regulations, if the commission feels that enforcement powers need to be taken in the most serious cases, it must always issue a warning notice under Section 29 of the 2008 Act before prosecuting a provider for breached registration requirements. This is laid out in complete clarity in these orders.
The noble Lord, Lord Alderdice, raised the question of drug and alcohol addiction therapies being provided in small, non-NHS environments. A wide range of services can be described as psychotherapy, as the noble Lord understands. Our analysis of those services shows that the level of risk varies enormously, but the lack of clarity around the definition of the services means that it is difficult to distinguish between them. Proposed changes to professional regulation in this area are expected to bring more clarity to the definition of psychotherapy services provided by people who are not currently in one of the registered healthcare professions. We are keeping those services under review.
I hope that I have answered most of the points raised by noble Lords. If I have not, I shall write.
Health and Social Care Act 2008 (Consequential Amendments No. 2) Order 2010
Considered in Grand Committee
Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010
Considered in Grand Committee
My Lords, I shall speak also to the Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2010. The overall purpose of the orders is to allow the new regulatory framework for social housing regulation to be brought into effect on 1 April 2010.
These regulatory reforms were originally proposed in Professor Martin Cave’s report, Every Tenant Matters, published in June 2007. It recommended that a new independent social housing regulator be established to regulate all social housing landlords. The Government implemented Professor Cave’s recommendations through the Housing and Regeneration Act 2008, which provided for the establishment of a new independent regulator and for the creation of a new, cross-domain regulatory framework.
The new regulator, the Tenant Services Authority, came into being on December 2008, but it has continued to regulate housing associations using the regulatory powers previously exercised by the Housing Corporation. This transitional period has allowed time for the TSA to develop new performance standards in consultation with tenants and landlords. We now seek Parliament’s approval to bring into effect the new regulatory framework provided by the 2008 Act. That is the overall aim of the two orders before us today. I shall speak to each in turn.
The Housing and Regeneration Act 2008 (Registration of Local Authorities) Order would enable the TSA to register council landlords in order that they are subject to regulation. The Housing and Regeneration Act dealt only with the regulation of housing associations. We made it clear during the passage of the Housing and Regeneration Act that we would later legislate to apply the regulator’s powers in the Act, as appropriate, to council landlords. Section 114 was included in the Act to facilitate this, following cross-party support. The principle of having a single regulator for all social housing has received widespread support from both councils and tenants.
Our shared goal is to raise the standard of services for tenants no matter who their landlord is. The needs and experiences of tenants will be central to the new regulatory framework led by the TSA. Social tenants have limited leverage in the “market”: they cannot choose to move into another home or choose to rent from another landlord. It is important to ensure that tenants are offered opportunities to be involved in decisions that affect them and that they should have the protection that regulation provides where they receive an unacceptable level of service.
The policy intent underpinning the order is that the TSA be provided with the powers necessary to enable it to apply a common regulatory framework across all providers of social housing. We have also been clear from the outset that any new regulatory framework operating under the powers should support local delivery and accountability through the local performance framework. The TSA has made it clear that it shares our aims to reduce unnecessary burdens on local authorities.
Where differences arise between governance of local authority landlords and wider performance management, our aim has been that they should be addressed by the regulator through application of its regulatory framework rather than by seeking to add complicated provisions to the statutory framework. However, some tailoring of the Act and amendment of other legislation is necessary in connection with the registration of local authorities. The new regulatory framework, which would apply across all providers of social housing, has standards at its core. The TSA consulted on its proposed standards between December 2009 and February 2010. It described the outcomes that the regulator will want to see delivered, as well as any specific requirements it is expected to meet.
The TSA has made clear that it wants to place the main emphasis on the relationship between landlord and tenant, a relationship within which tenants help to shape, influence and monitor the service provided. A key element of that approach is that housing providers should agree local standards with their tenants. The regulator may require information of a provider, order an inquiry or commission an inspection. Where the regulator has established that there has been a breach of standards or general mismanagement, it would have a range of enforcement powers to help to ensure that tenants receive an acceptable level of service.
The regulations are relatively straightforward in that they largely amend provisions in the Housing and Regeneration Act as necessary for the registration of council landlords. The order provides that council landlords who currently retain ownership of social housing stock will be registered with the regulator from the outset. Existing council landlords would not therefore need to apply to be placed on the register. The order inserts a new duty on the regulator so that it will co-operate with the Audit Commission and, in particular, consult with the commission on matters relating to council landlords.
The order does not apply the power in the Act that enables the regulator to set financial management standards for housing associations. The financial governance of councils is already subject to regulation by the Audit Commission. The intervention powers granted to the regulator in the Act provide powers that it could use to address poor performance in the housing association sector. It is our intention that the same powers should apply to councils, but only where they repeat those powers that the Government hold in order to intervene in serious cases of local authority underperformance. In accordance with that principle, the order provides that powers to impose fines on providers and order a landlord to pay compensation to tenants should not be applicable with regard to councils. The order would also not extend to local authorities the powers to suspend and remove officers.
Finally, the order transfers from the Secretary of State to the regulator the powers in the Housing Act 1985 to give consent for the transfer of the management of a council’s housing stock to another provider. It makes sense for the regulator to take on this function as it will hold the relevant information about the performance of the landlord.
The consequential provisions order makes consequential amendments to primary legislation arising from Part 2 of the 2008 Act, which provided a new regulatory framework for social housing. These amendments are a matter of technical necessity, and most fall into one of two categories—that is, the replacement in England of the term “registered social landlord” with “registered provider of social housing”, and the transfer of the Housing Corporation’s regulatory functions to the TSA.
First, on registration, the TSA currently regulates registered social landlords, commonly known as housing associations. RSLs are non-profit, private-sector bodies that are independent of government. As part of the new regulatory framework that is due to be in place from April 2010 onwards, profit-making bodies will also be able to register with the TSA—a change that was recommended by the Cave review.
All registered social landlords are required to be non-profit-making. Given that profit-making bodies will be able to register after 1 April as well, the 2008 Act introduced the term “registered provider of social housing”—registered provider, for short—to denote bodies that are registered with the TSA. In order to protect the existing non-profit status of RSLs, the TSA will register non-profit and profit-making providers separately, and slightly different rules will apply in some circumstances. Therefore, we need to be able to differentiate between types of registered provider. The term “private registered providers of social housing” will refer to all bodies registered with the TSA that are not local authorities. The term “non-profit registered provider of social housing” will refer to those private registered providers that are non-profit.
In amending existing references in primary legislation to “RSLs”, we have had to consider whether in future these legislative provisions should apply to non-profit registered providers only, by which I mean only existing RSLs and any similar non-profit bodies that register with the TSA from April, or to all private registered providers—that is, non-profit and profit-making bodies. Our general approach in the order has been to apply these provisions to all private registered providers of social housing. Our aim, as far as possible, is for there to be a level playing field between providers, and that social tenants should not be any worse off due to the status of their landlord.
However, in specific cases there are technical or policy reasons to apply the existing references to RSLs to non-profit providers only—for example, in relation to charities legislation, where referring to profit-making bodies would not be meaningful, or in relation to RSLs’ existing anti-social behaviour powers, where we do not believe that it would be appropriate for profit-making providers to exercise these powers without proper consideration and consultation.
The second category of consequential amendments is much more straightforward. It reflects the transfer of the Housing Corporation’s regulatory functions to the TSA, or the Regulator of Social Housing, as it is referred to in the legislation.
The orders are concerned with making sure that all landlords who provide social housing, whether housing associations or councils, deliver high standards, and I commend them to the Committee.
My Lords, we on these Benches do not intend to vote against the orders but we have some issues with their practicalities. First, we agree that the TSA should cover local authorities. However, we are cautious about its ability to be an effective asset to the housing system, given what we know so far about its past financial management. We know that the Department for Communities and Local Government spent a total of some £230,000 appointing board members for the new Homes and Communities Agency and the Tenant Services Authority, despite 10 of the 22 appointees coming from the two organisations’ predecessors, the Housing Corporation and English Partnerships.
We also know that a typical council has to spend £2.6 million a year reporting performance information to central government. What a waste of money. Could it not be spent better on front-line services? The cost of the Audit Commission soared from £93 million in 1996-97 to £205 million in 2008-09. It is clear that the TSA is going to create more red tape and inspection, if only to justify its existence. This is neither helpful to, nor necessary for, an already struggling housing market. We do not see why more power could not be given to the Local Government Ombudsman to tackle individual complaints. What assurances can the Minister give us that bureaucracy will be kept to a minimum and that the work of the TSA will not become entrenched in a culture of duplication involving the Audit Commission?
Secondly, we understand that the reason behind renaming registered social landlords as registered providers of social housing is that RSLs are not-for-profit and that the Housing and Regeneration Act allows for profit providers to register with the TSA too, thereby needing to rename them all. However, it seems that in reality this may be unlikely to be hugely necessary. Why cannot different types of RSL simply register as either profit-making or non-profit-making? Can the Minister tell the Committee what the overriding justification is for the complete overhaul?
The orders amend the Housing and Regeneration Act 2008, so I am surprised that the Government do not use this opportunity to amend their new homes building target. At Second Reading of the Bill, the then Minister, the noble Baroness, Lady Andrews, said that the Prime Minister had announced that they would,
“deliver 3 million additional new homes by 2020 … a national target of delivering 240,000 new homes a year”.—[Official Report, 28/4/08; col. 41.]
If only. At the time, this wild and over-optimistic target was challenged. My noble friend Lord Patten said:
“I predict that the maximum number of new homes built in 2008 will be no more than between 100,000 and 110,000. That will not meet demand. The number in 2009 is unlikely to be much higher”.—[Official Report, 28/4/08; col. 76.]
Sadly, even those figures of my noble friend seem generous. Let us not forget that these warnings were made after the housing and building market had started to decline.
At Second Reading, I said of the Government:
“Sadly, during their 11 years, they have built only a pitiful 145,000 houses per annum … This is yet another example of the Government failing to meet their own targets”.—[Official Report, 28/4/08; col. 110.]
Would not today be a good opportunity for the Government to come up with a more realistic target? They want us to believe that, because they talk about more and better housing and regeneration, they will deliver it. This is quite clearly not the case.
Measures have to be introduced that make the taxpayer’s money go further and not go to waste. Given the vast amount already wasted on setting up the TSA, what assurances can the Government give that these orders will improve the housing system, provide real benefits and provide taxpayers with real value for money?
My Lords, first, I thank the Minister and his team for the very clear explanation of the draft statutory instruments. He will know that we supported the Housing and Regeneration Act in principle. The new regulations on the Tenant Services Authority are very much in line with our position. When we look at the issue of social housing, it would be appropriate to pay tribute to the organisation Shelter, which, since the days when my good friend Des Wilson was in charge of it, has done much to campaign for the cause of the homeless and decent housing for those who otherwise might not have it. Shelter says that it strongly welcomes the approach of bringing together the standards for service delivery to local authority and housing association tenants into a single regulatory framework. This is based on Professor Cave’s excellent work, and it must be the right approach.
Shelter makes the point that having one regulator will make life simpler for tenants and prospective tenants in identifying what they can expect from their landlord and will ensure greater transparency and consistency in providing services. Can the Minister comment on the issue that Shelter raised in its response to the TSA discussion paper—that temporary accommodation should be included in the scope of the TSA’s new regulatory framework? We accept the need for stronger regulation of the private rented sector. I understand that private registered providers remain subject to regulation only if they voluntarily register with the TSA. Should not the TSA take on this regulatory function for all privately registered providers?
The Local Government Association has also welcomed the establishment of cross-domain regulation, but has expressed some concerns about the new regulatory framework under the TSA. Will the Minister comment on the LGA’s assertion that the length and complexity of the standards cast some doubt on whether they focus on meaningful outcomes and will be comprehensible to tenants.
I ask the Minister to say a little more about the relative roles of the TSA and the Audit Commission. We looked last week at the code of practice for the Audit Commission in relation to local government. Can the Minister assure us that the value-for-money standard for the TSA does not duplicate or significantly overlap with the use- of-resources judgment of the Audit Commission?
My Lords, I am grateful to the noble Lord and the noble Earl. They were both supportive of these provisions, although I understand that each, particularly the noble Earl, Lord Cathcart, had some particular inquiries to pursue. The noble Earl asked about the costs of the TSA and whether it effectively adds value. For every £1 that the TSA spends on regulating, it helps RSLs to save £15 in lower interest costs. That amounts to a saving of £250 a year, or 70p a day, for every housing association home. The TSA will cut its running costs by about 10 per cent next year, in 2010-11, while extending its remit to cover local authority landlords from 1 April. The TSA has already identified £2 million in savings during its first year by reducing information technology and legal costs, and by sharing office space with other government agencies.
The noble Earl referred to the recruitment of board members and executives. Three former Housing Corporation board members and one former English Partnerships board member transferred to the TSA board at its inception in December 2008 without additional costs being incurred. Costs were incurred solely for recruiting new board chairs and members for the TSA and HC boards and for the TSA chief executive. On value for money, the LGA’s quango report card focused on the TSA, which has broadly welcomed the LGA’s findings. They indicated a strong start, although there is clearly still some work to be done in certain areas. The TSA was given several green ratings on specific issues, such as complaints handling and the elected representatives on its board. The LGA also recognised the positive steps that the TSA is taking to develop its relationship with local authorities, so I would certainly not accept a suggestion that the TSA is not necessary or superfluous.
The noble Earl asked about the approach that we are taking on profit-making and non-profit-making providers. Prior to the Housing and Regeneration Act 2008, there was no definition of social housing on the statute book, so it is not possible to differentiate between social and non-social housing when referring to RSLs in earlier legislation. We want to preserve the status quo as far as possible, so it is right that, where legislation currently applies to all RSL stock, it should continue to do so after those bodies transfer on to the TSA’s new register as non-profit registered providers. The noble Lord, Lord Rennard, asked whether it was voluntary for profit-making providers to register. The answer is yes; there is perhaps a broader and separate issue about the general regulation of people in the private rented market, which is being addressed as a result of recent consultations.
The noble Earl also referred to the Government’s record on providing new homes. We recognise that the current market conditions have had an impact. Until recent rises, house prices had fallen by around 20 per cent. People are finding it harder to find a suitable mortgage and house builders are experiencing more challenging business conditions. That is why the Government have been proactive in responding to the challenges. We are restoring stability by rebuilding confidence and reassuring consumers that there is practical support where needed. We are focusing on the key priorities: help for homeowners in fear of repossession; support for construction jobs and skills; support for first-time buyers, mortgage lending and the wider market; and support for long-term goals of recovery and sustainability. The Government are now committed to investing £7.5 billion over two years to deliver up to 112,000 affordable homes and around 15,000 private homes. Notwithstanding the challenges of the market, the Government have been proactive in helping to address these matters with a stimulus that has still not had the full endorsement of the Conservative Party. We remain committed to our overall target of raising house building to 240,000 homes per annum by 2016 as the right long-term goal.
The noble Lord, Lord Rennard, asked about the TSA and the Audit Commission. We looked at a code for auditors, not the Audit Commission. The Audit Commission is involved in appointing auditors, but the code was for auditors of local authorities and health bodies. The relationship of the TSA to the Audit Commission is important, which is why I tried to set out in my presentation that we would not seek to override the existing engagement of the Audit Commission to build on that so far as local authorities are concerned. That is part of the provision in these regulations for how the TSA will act in relation to local authorities.
The noble Lord spoke about the good work of Shelter. Like him, I am very supportive of that organisation and I acknowledge the great work that it has done. I remember the name Des Wilson from times gone by. I have forgotten where he ended up, but I know he did great work with Shelter.
The noble Lord asked whether temporary accommodation in total should be included. I am not the landlord for temporary accommodation; it is up to local authorities to ensure that temporary accommodation standards are sufficient to meet their duties to homeless people. That is where the duty lies. We do not think that adding TSA regulation would improve standards of temporary accommodation, but that it could add to costs. He also referred to the length of the framework that we are looking at in relation to regulation. The regulation has been subject to extensive consultation, and I think we are due to publish the final results shortly. I think there have been three consultations and the term “a national conversation” was applied to it. We believe that what comes out of the process reflects significant engagement.
I hope that that has addressed the points that noble Lords made. If not, I am happy to have another go. I am grateful for their input into our discussion of these regulations, which are important in moving to a new regulatory framework that places the needs, views and aspirations of tenants at its heart. That framework will ensure that all tenants, regardless of their landlord, can expect high-quality services with opportunities to influence service delivery and policies.
Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2010
Considered in Grand Committee
Moved By Lord McKenzie of Luton
That the Grand Committee do report to the House that it has considered the Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2010.
Relevant documents: 8th Report from the Joint Committee on Statutory Instruments.
Arrangement of Business
My Lords, in order to avoid a clash between consideration in Grand Committee of the Service Voters’ Registration Period Order and the repeat of the Ministry of Justice Urgent Question in the Chamber, I propose that consideration in Grand Committee of the Service Voters’ Registration Period Order be postponed until the end of business in Grand Committee today, after the two tobacco regulations have been considered.
Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010
Considered in Grand Committee
My Lords, I am here today to move two sets of affirmative regulations on tobacco control. The first, the Protection from Tobacco (Sales from Vending Machines)(England) Regulations 2010, prohibit tobacco sales from vending machines. The second, the Tobacco Advertising and Promotion (Display of Prices)(England) Regulations 2010, regulate the display of tobacco price lists and price labels to coincide with the removal of tobacco displays
Noble Lords will know that the Health Act 2009 included provisions on tobacco sales from vending machines and the prohibition of tobacco displays. Four separate sets of tobacco control regulations have been laid, two of which I am moving today. A further two sets of regulations, on removing tobacco displays and on specialist tobacconists, were laid on 2 March 2010 under the negative procedure.
A public consultation on all four sets of regulations ran until 4 January 2010. The Summary of consultation responses, the Government’s response and consultation report, was published on the Department of Health’s website on 26 February. I can assure the Committee that health Ministers have carefully considered all the consultation responses received. The consultation played an important role in informing the final regulations.
The problem of youth smoking is something we are all concerned about. As the Committee will recall, we had a great deal of debate about it during consideration of the Health Act last year. This Government strongly believe that we have a responsibility to do everything that we can to protect young people from becoming addicted to tobacco and to support those people who are already addicted who want to quit.
The Department of Health recently published A Smokefree Future, the new tobacco control strategy, which sets out the Government’s vision for protecting young people and the public from the health harms of smoking. These regulations are part of this package of work to help young people resist starting to smoke and to support adult smokers to quit.
The risks of smoking are well documented and have been well rehearsed in earlier debates. I do not intend to go through them all again during this debate, but they show why we must continue to focus on tobacco control.
As noble Lords will appreciate, the regulations prohibiting all tobacco sales from vending machines, the Protection from Tobacco (Sales from Vending Machines)(England) Regulations 2010, are very brief; in fact, there are only two regulations. Apart from providing that the sale of tobacco products from vending machines be prohibited, they also provide important clarity about who would be liable for any breach.
The person who controls or is responsible for the management of the premises where the machine is located would commit an offence if tobacco sales were made from a vending machine. We are very concerned about how easily children can access tobacco in vending machines, and that availability of tobacco from machines undermines efforts by adult smokers to quit.
Evidence shows that, in 2008, vending machines were a usual source of cigarettes for 12 per cent of young people aged 11 to 15 who were regular smokers. Evidence from the latest data on local authority test purchases from vending machines during 2008-09 shows that under-18s were able to make illegal purchases from the majority—58 per cent—of vending machines tested across England. These data showed that more than one in four vending machines was unsupervised. It demonstrates that, even after more than 10 years, the voluntary code of practice to prevent children buying cigarettes from vending machines is not working effectively and is a totally inadequate safeguard against under-age sales.
Action to prohibit sales from vending machines should not be seen in isolation. Of course we have taken, and will continue to take, action to tackle other sources of tobacco used by children.
We take seriously the need to consider the impact on business. The regulations do not commence until October 2011, giving businesses and employees time to prepare. We have fully taken into account consultation responses about the effect on business, but we are satisfied that the impact on businesses does not outweigh the clear public health benefit of the regulations. When it comes to public health, the cost of acting must be balanced by the cost of not acting. We also believe that the regulations will be easy to understand for businesses and will be far simpler to enforce than current legislation requiring local authorities to carry out test purchases.
Taking all the arguments into account, I believe that removing this easy source of cigarettes for children is a responsible and proportionate response to the problem. The Government know that, despite the voluntary code, a significant number of children still get cigarettes from vending machines.
The Tobacco Advertising and Promotion (Display of Prices)(England) Regulations 2010 are part of a package of three sets of regulations flowing from the prohibition of tobacco displays under Section 21 of the Health Act 2009. The regulations set out the size, appearance and number of price lists and price labels retailers are able to use so that customers know what tobacco products are available for sale. While detailed, they are straightforward in their purpose and effect.
We have seen how the ban on advertising resulted in the tobacco industry exploiting tobacco displays to actively promote tobacco products. In a similar way, once product displays are removed, we must guard against tobacco price lists being exploited and turned into brand promotions. However, retailers must be able to carry out their day-to-day business of selling cigarettes. It is essential that retailers are able to let customers know which products they sell and at what price, and that staff know where different products are stored once tobacco shelving is covered over.
We have worked closely with stakeholders throughout the drafting of the regulations to ensure that they are effective and practical, which is why the regulations allow for prices to be displayed in different ways—in separate lists or labels attached to shelving. But the regulations ensure that such price labels cannot include any form of product branding, whether through the use of the particular colours or the particular typesettings associated with different brands. A pictorial list is allowed where it is needed and asked for by a customer, but only on request. This will ensure that customers who, for whatever reason, are not be able to read English are able to identify the brand they want by recognising its picture.
We carefully considered all the responses to the consultation and a number of changes have been made to the regulations which take account of stakeholders’ views on their practicality. For example, the maximum size of a price list, as set out in Regulation 6(1)(b)(vi), has been increased from roughly A4 to roughly A3, recognising that A4 was too small to allow shops to list all the products that they sell. Regulation 6(1)(b)(ii) now allows price lists to include generic sub-headings to show different types of product such as cigarettes, cigars or tobacco. Under Regulation 5(a), all price lists and labels may now include information to describe cigars—the country of origin and dimensions—and the cut and type of tobacco in pipe tobaccos.
We have provided a clearer definition in Regulation 2 of “bulk tobacconists”, which recognises the specific needs of these traders while ensuring that no loopholes are created. This approach is in keeping with the display regulations. We have listened to retailers. These are all sensible changes to make.
On the other hand, the public health lobby are concerned to limit the potential impact of numerous lists and labels which must, by their nature, include product brand names. Recognising the public health arguments, the regulations no longer allow the use of bold typeface as this could be exploited to emphasise particular brands. Regulation 5(b)(i) now refers to only “plain type”. Under Regulation 6(2), price lists will be limited to one for each area where tobacco is sold, rather than one for each till where products can be paid for.
I believe that the final regulations strike the right balance between protecting public health and recognising the needs of businesses. For the reasons I have explained, I commend both sets of regulations to the Committee.
My Lords, in thanking the Minister for introducing these regulations with her customary clarity, I feel I must begin by making clear to her and to the Committee that I remain opposed to both the policy and the primary legislation on which the regulations are based. I am opposed to the Government’s policy on tobacco displays, of which the tobacco pricing regulations must be seen as a part, because I believe that the evidence base for its alleged benefits is unacceptably weak and the consequences for small shops disproportionately damaging.
I am opposed to the policy to ban cigarette vending machines because I believe that the regulation of machines, using known and tested technology, could and should have been tried before an outright ban was imposed. That indeed was the Government's original policy. However, now that the primary legislation has been approved by Parliament I must accept that it is perfectly within the Government's prerogative to bring these regulations forward. Our task today is to examine those regulations on their own terms.
I turn initially to vending machines. It is striking that regulations that extend over barely a page of A4 should require 23 pages of Explanatory Memorandum to back them up. I am not complaining about that—quite the reverse—as it shows how thoroughly the department has tried to quantify the impact that the regulations will have when they come into force in 18 months' time. However, in reading the impact assessment, it is impossible to avoid the thought that officials may have tried a bit too hard. For example, I think it becomes very difficult even to attempt to quantify the extent to which the ban on vending machines will impact on smoking prevalence in the young. We are told that 12 per cent of regular smokers aged 12 to 15 have cited vending machines as a usual source of tobacco products. However, we know that a given individual may have several usual sources, and therefore in order to prove that the policy will have a lasting benefit it is necessary to demonstrate that any reduction in cigarette consumption arising from the absence of vending machines is likely to persist over the long term.
As the evidence base admits, some children may not reduce their smoking at all, and it goes on to say in paragraph 41 that:
“There is also the possibility that young people will be very effective at finding alternative sources of cigarettes”.
The word “possibility” in that context is a bit silly. We can surely be pretty certain that young people who have several usual sources of supply and who are intent on accessing cigarettes will succeed in doing so. Therefore, while I am not arguing that denying children access to vending machines is a misguided thing to do—indeed I believe that the aim is absolutely correct—I wonder whether it is not a slightly pointless exercise to try to measure in advance and with any precision what effect this will have on cigarette consumption in the young. The fact that the predicted benefits range in monetary terms between £19.9 million a year and £100 million a year rather serves to bear out this view.
As I have said, I am not in any way averse to the aim of the underlying policy. What I object to is the abandonment by Ministers of the more proportionate approach that they originally favoured, which would have obliged vending machine operators to install technology designed to prevent access to those machines by anyone under 18. This type of technology is not only credible in theory but has been trialled successfully in a number of areas. I recognise, of course, that the Health Act 2009 provides only a power to prohibit the sale of tobacco from vending machines, not to regulate such sales. Nevertheless, I cannot help pausing for breath when I read in paragraph 9 of the impact assessment:
“Government intervention is justified to prevent young people from accessing tobacco ... The current voluntary code of practice ... to prevent underage access ... has proved to be insufficiently effective”.
As a statement that purports to justify the policy contained in the regulations, that falls rather short of an intellectually compelling case, ignoring as it does other courses of action designed to achieve the same ends.
The Minister may think that this is slightly unfair criticism. However, we are dealing with a measure whose net benefit, even by the Government's own calculations, may be as low as minus £143 million. In other words, although the Government have assumed that the net benefit will be positive, it is clear that the risk of the regulations failing to deliver any benefit is considerable. One has only to look at the calculation of the health impact on adults. The reduction in the number of cigarettes smoked by each adult smoker is computed at between 0.03 and 0.08 cigarettes a day. On those flimsy foundations, officials have constructed an edifice which translates into a monetised benefit of between £24 million and £74 million a year in terms of extra life-years gained. Yet, as the Government admit, as a result of this policy option:
“The number of cigarettes smoked by adults may fall”.
The word “may” is exactly right. Predictions of this kind are highly speculative.
The other effect of these regulations will be to put more than 500 people out of business and out of work. The immediate cost to the vending machine industry has been calculated at £22 million, a figure which I have to say looks extraordinarily low. We are told that there are nearly 58,000 vending machines around the country. The average value of a machine has been assessed at only £375 on the basis of market research into the asking price for second-hand machines. I am doubtful about this. For one thing, the current price of second-hand cigarette vending machines cannot remain wholly uninfluenced by the Government’s announcement that they intend to ban them next year. For another thing, the gross margin per machine per annum is known to be around £1,750, and therefore I think we should be wary of accepting as gospel a valuation per machine that is barely a fifth of that figure. The Government may regard 550 people losing £22 million as a trivial consideration in the scheme of things, but they might have had a more convincing story to tell those people if the economic benefits of their policy had been more clear-cut.
I now turn to the display of prices regulations. The striking thing about them is not that they exist—we all accept that price lists cannot be allowed to become a tool to promote tobacco sales—but rather that they should exist in such an extraordinarily prescriptive form. Regulations 5 and 6 take us into hitherto undreamed of realms of wickedness. There is the wickedness of capital letters. Capital letters may be glimpsed only at the beginning of words and, if you value your virtue, nowhere else, thank you very much. There is the wickedness of using an alien typeface. If you print your price list in Helvetica, you may count yourself a decent human being. If you should be so rash as to do it in Garamond, Arial or Times New Roman, then, oh dear, it is the naughty step for you. Cream paper not white paper? You may be hauled off. Is the list in a frame? If it is, for all I know, transportation beckons.
Now, if you are over 18, but only if, you are allowed to ask the shopkeeper to produce from under the counter a price list on which there may be a naughty picture—an explicit and highly provocative image of a cigarette packet. You may gaze at that packet for only as long as it takes you to decide whether you want a real one. In doing so, you may wonder what the name of the packet is, but if you have come without your glasses you could be left wondering because, in the wording beside the naughty image, the height of the lettering may not exceed four millimetres—I repeat: four millimetres.
I truly wonder what kind of a world we are in with these regulations. Do the Government seriously believe that an adult who asks to see a list of cigarette prices may be corrupted by the sight of lettering that is too large, or that he may become addicted to cigarettes by looking at a picture for too long? I say to the Minister that anti-tobacco legislation is all very well but if we are reduced to this level of patronising detail, then as legislators we are in danger of looking like a pretty sorry outfit.
I do not know whether the department has tested these rules. What they mean in practice is that the consumer will be presented with a price list the size of an A3 sheet of paper. On this sheet, a shopkeeper may have to squeeze as many as 150 product lines. Is the Minister aware of how extremely difficult that is? I have seen a mock-up of a list with 347 product lines and I can tell her that it is almost impossible to read. Has she also given thought to how a small retailer is supposed to compile and update these lists when product prices are constantly changing? She may say that word processors make this task quite straightforward, but has she looked to see whether Helvetica is a typeface that her computer has? My computer does not have it. Therefore, if a shopkeeper is obliged to have his lists specially printed, he could be asking for reprints every other day of the week. Has the Minister also considered what a height limitation of four millimetres means when you are trying to read lettering on a gantry? Unless your eyesight is 100 per cent, you might just as well forget the lettering altogether. What is anyone afraid of? Why can the lettering not be of reasonably legible size?
We will, of course, approve these regulations, as we always do, but I simply end by saying very gently to the Minister that, however much we may disapprove of smoking and tobacco, prescriptiveness of this order is unnecessary. The regulations in the Republic of Ireland succeed in being restrictive without descending into Orwellian levels of detail. I commend those regulations to her as bedtime reading.
My Lords, I thank the Minister for introducing the regulations in her customarily thorough fashion. I congratulate the noble Earl, Lord Howe, on opposing them with some style.
I find myself in a slightly different position. As noble Lords will recall from the passage of the legislation from which the regulations come, I supported the proposals to ban vending machines. I have sympathy with the noble Earl, Lord Howe, in his scepticism about the costings produced by the department, but I am afraid that I take a slightly different view. I can live with an overstated case, because the simple fact is that vending machines are an anachronism and belong to a time when other forms of trading were far more heavily regulated and limited than they are now. On balance, the evidence shows that vending machines provide an opportunity to young people to take up smoking which in some cases they would not otherwise have. Therefore, the case is made.
I welcome the fact that the Government have stood by the courage of their convictions and gone ahead with the decision to remove vending machines altogether. I accept the point made by the noble Earl, Lord Howe, about the immediate effect on businesses which supplied the machines. They would not be the first businesses ever to have experienced a dramatic change in their trading environment and to have had to change and adapt their business. Overall, the general case for good stands with the regulations and I therefore welcome them.
I agree with the noble Earl, Lord Howe, that the evidence base for the other regulations is insubstantial. I argued that throughout the passage of the legislation and I am afraid that I lost. Therefore, I am in a position where I, too, have to accept the regulations which will go through. The policy is mistaken and to follow it will mean that we have inadvertently created conditions in which it becomes much easier for people to sell illegally imported tobacco. However, we had extensive and detailed debate during the passage of the legislation, at the end of which the intent of Parliament was clear. One usually has to go through regulations in significant detail to make sure that Parliament’s will has been reflected. In this case, it has been.
The noble Earl, Lord Howe, sought to caricature the actions of the Government in bringing forward such detailed regulations. I simply make the observation to him that the tobacco companies brought much of this upon themselves by the way in which they exploited the previous policy on tobacco advertising. Following the passage of the Bill of my noble friend Lord Clement-Jones, advertising was restricted solely to the gantries that one sees now. That tobacco companies, with what I suppose was commendable commercial application, exploited that to the full perhaps led to these regulations being so detailed and so tight.
Perhaps I may raise an issue with the Minister, which I hope arises from a mistake on my part. In the prescription of what can and cannot be displayed, I see no mention of health warnings. I believe that it was the intention of Parliament that health warnings would still be visible on displays.
I, too, was somewhat taken by the dimensions referred to in the regulations. I find it somewhat strange that we are referring to type in millimetres rather than in point size. Will the Minister tell us the type size being referred to and say why there is no reference to point size? People who deal in type usually use that as a measure, and people who work with people who have visual impairments are used to talking in terms of point size, so that would be useful information.
Can the Minister tell us the extent to which these regulations mirror regulations in other countries? During the passage of the legislation, a great deal was made of laws that the Government had looked at in various states in Canada and in Ireland. To what extent do these regulations follow the legislation that applies there now and to what extent does it go further? However, overall, as the noble Earl, Lord Howe, said, this is a matter on which Parliament has spoken, and it is incumbent upon us to accept these regulations.
My Lords, I support these regulations. We debated the legislation at length and I spoke at that time, so I shall not take too much time. I support the regulations banning cigarette sales from vending machines. We have discussed this before and know that voluntary guidelines have not worked. It has been said that other devices that could be used should have been piloted. In my view, that has already been done. Remote-control systems have been cited as new solutions, but the technology is not new and does not provide what we need. The option of using this technology was debated in the Commons on Report on the Health Bill, and some Members suggested that it would be simple to operate. In fact, it would be extremely problematic. In crowded bars, clubs and pubs it is unrealistic to expect staff to check ID and then to monitor an individual using a remote-control machine some distance from the bar while ignoring other customers trying to buy drinks. It is very possible that staff might end up releasing such machines without checking who wants to use them each time the alert is made.
Trading standards in south-west England recently conducted follow-up test purchasing from vending machines following the introduction of the method. It found that a number of premises had made modifications, including fitting remote-control devices, following warnings about previously poor results. During the repeat test purchase, four out of five occasions resulted in a sale. The National Association of Cigarette Machine Operators gave evidence to the Scottish Government last year about its test purchasing trial of radio-frequency-controlled vending machines. Although it claimed its findings as a success, staff failed to ask for ID in one in five cases. Test purchasing was conducted when the pubs, with one exception, were categorised as not busy and therefore cannot give a realistic impression of how the technology would work at busy times. I therefore support these regulations and believe that the removal of vending machines will promote a reduction in the number of children taking up smoking.
On the regulations on the display of prices, I have a great deal of sympathy with what the noble Earl, Lord Howe, said, but for different reasons. I would have gone further and banned point-of-sale displays altogether, including the display of prices. However, I have sympathy with some of the points he made about how this will work, including the point about Helvetica, but I support the regulations.
My Lords, I am not particularly surprised at the views expressed by the noble Earl. To a certain extent, his dismay was echoed by the noble Baroness, Lady Barker. In terms of vending machines, yes, Parliament has spoken and we now need to bring these regulations forward. As to the display of prices, we are in a heads-you-win or tails-you-lose situation with reference to too much or too little detail.
I think that the noble Baroness, Lady Barker, said that the tobacco industry has to an extent brought this on itself. Taking on board the analogy given by the noble Earl, I say that our experience shows us that even if you show a very small amount of ankle to tobacco companies, you do not know where it might lead. We cannot take anything for granted in their drive to advertise their products; that is the problem that we face. I thank the noble Lord, Lord Patel, for his support throughout this process of dealing with tobacco and regulation.
We take this issue very seriously and we do not regard it as trivial that there are consequences for the vending machine industry and the people who provide vending machines. However, stopping the sale of cigarettes through vending machines is an important measure to stop today’s children becoming tomorrow’s smokers. As well as being easily accessible to children, vending machines also provide temptation for adults. But we think that we are right to prevent access to a known source of tobacco for young people.
As the noble Earl and the noble Baroness recognise, alternatives were debated during the passage of the Health Bill. But it was the will of both Houses to make it clear that accepting those amendments would remove the regulation-making powers that would impose restrictions and that they were left with only one option.
We know that there will be an impact on the vending machine business. Indeed, I met people from that business before we discussed this matter in the House when the Bill came back to us from another place. We are using the date of 2011 in order for those businesses to have time to prepare, to diversify and to make alternative arrangements. The regulations prohibit only one possible use of vending machines, so operators would not be prevented from thinking about other uses. In fact, vending machines have other products in them.
We understand that some tobacco vending machine businesses may have already begun diversifying. We understand that the snack importer, Salysol GB, has launched a range of products in cigarette-sized containers that can be dispensed from tobacco vending machines, as reported in The Publican on 7 January 2010, which is entirely to be welcomed. I hope that we can therefore trust the diversity and entrepreneurship of those businesses.
On typeface and point size, we took advice from the RNIB—so we have discussed the point size. We are using four millimetres and seven millimetres for clarity. We want to avoid any doubt about the legal definition. Using a specific size is quite beyond doubt. It may help the Committee if I say that the maximum size of font or typeface on the price list will be seven millimetres, which is roughly 30 point. The size limit on labels is primarily for staff to be able to identify where stock is kept. The four millimetre size, which must therefore be about 12 point, is in keeping with that. We have done mock-ups. Our purpose is to use a typeface which is uniform and to make absolutely sure that lists cannot be used for promoting products. From our mock-ups of the lists, we think that they work.
The noble Baroness raised the issue of the health warnings that are on the cigarette packets. There is no intention that the warnings would be used anywhere else but on those packets. She also asked about other countries. Twenty-two other countries have banned cigarettes from vending machines. On price lists, as far as we are aware there are no precedents, so we have to discuss and consult—as we have done—and come up with rules that work. We will then have to see how those work out.
Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010
Considered in Grand Committee
Arrangement of Business
My Lords, as the Minister for the next order is currently detained or may be detained in the Chamber for the repeat of the Ministry of Justice Urgent Question, I suggest that the Grand Committee be suspended until five minutes after proceedings on the Urgent Question in the Chamber have concluded.
Sitting suspended until 6.47 pm.
Service Voters’ Registration Period Order 2010
Considered in Grand Committee
This order, to be made under Section 15(9) of the Representation of the People Act 1983, relates to the statutory time limit on the period of a service declaration made by those electors who are qualified to do so under Section 14(1) of that Act. The order arises from debate in the House on the Political Parties and Elections Act. I would like to remind noble Lords of this context and explain why the Government believe this is a good way to support the electoral registration of service voters before going on to explain the technical aspects of this order.
As noble Lords will know, members of the Armed Forces, together with their spouses or civil partners, are part of a category referred to for the purposes of electoral administration as “service voters”. This category also includes people employed in the service of the Crown abroad, such as members of the Diplomatic Service. These people may consequently register as an elector under a service declaration. Some will register as ordinary or overseas electors, but the service declaration may offer added convenience. It allows for special arrangements to be made in respect of their likely status serving overseas at any given time. Those electors who have made a service declaration are registered in pursuance of it for a period of 12 months or, if members of the armed services, their spouses or civil partners, for three years. This means that Armed Forces personnel do not have to undertake the process of re-registering every year, which would be burdensome given their circumstances. At the end of the 12-month or three-year period as appropriate, a fresh service declaration and an application for registration as an elector may be made.
As I said on Report on the Political Parties and Elections Bill, the Government believe that a time limit of some length on the period of a service declaration is necessary to maintain the integrity and accuracy of the electoral register. Indeed, existing primary legislation cements that view and enables the service declaration period to be extended to a maximum of five years for members of the Armed Forces and their spouses. Other service voters continue to benefit only from a 12-month period. If there were to be an indefinite declaration period for service voters, that could lead to personnel inadvertently disenfranchising themselves. The nature of their careers is very mobile and they might expect to be automatically re-registered in any new UK constituency in which they may come to be resident. We are moving towards a system of individual registration which requires all electors to take responsibility for their electoral registration. It is important that this principle is retained for service voters.
Registering service personnel to vote in one place for an indefinite period has, in previous decades, created unhealthy inaccuracies in the electoral register, which led to the introduction of a 12-month limitation on service voter registrations in the Representation of the People Act 2000. As an exception, a power was inserted at the same time that allowed secondary legislation to increase the service declaration period to a maximum of five years for members of the Armed Forces and their spouses and, later, their civil partners. The Service Voters’ Registration Period Order 2006 extended the declaration period from one year to three, because three years was seen as a typical length for a military posting overseas. I should add that the Secretary of State has powers under Section 15(9) of the 1983 Act to substitute another period not exceeding five years, as he thinks fit.
The order before us today will amend the provisions that enable members of the Armed Forces and their spouses or civil partners to register to vote under a service declaration. It will extend the statutory time limit on a declaration made by those who are entitled, and who wish to register in this way, from the current limit of three years to the period of five years which, as above, is the maximum extension permitted. We propose that this order, which applies to the United Kingdom as a whole, will come into force on the day after the day on which it is made.
This order will require amendments to current legislation in three respects. First, Section 15(2)(a) of the 1983 Act, which governs service declarations, will now have the effect that service declarations made by members of the armed services and their spouses and civil partners will last for five years after they have been made. Further, the order and Section 15(12) of the 1983 Act will operate together automatically to extend any existing declaration in place when the order comes into force so that it lapses five years from the date on which it was originally made, rather than three years from that date.
Secondly, the following consequential amendments to secondary legislation will be required. Article 3 of this order makes a consequential amendment to Regulation 25(3)(b) of the Representation of the People (England and Wales) Regulations 2001. This amendment ensures that a service voter to whom this order applies will receive a letter from their electoral registration officer as a reminder that their service declarations should be renewed, three months before the end of the new five-year period. Articles 4 and 5 make corresponding consequential amendments to other regulations covering Scotland and Northern Ireland.
Thirdly, the Service Voters’ Registration Period Order 2006 and the equivalent Northern Ireland order will be revoked.
Why are the Government taking this action? In addition to considering the views of noble Lords on this matter at Report stage of the PPE Act, many of whom have extensive experience in the Armed Forces, the Government have consulted with representatives of service personnel, their families, the Electoral Commission and honourable Members from another place.
We acknowledge that more needs to be done on the question of registration rates among members of the Armed Forces, and a significant amount is already being done to drive up registration in this important area ahead of the general election. The number of service voters—that is, those who have made a service declaration in the UK on 1 December 2009—increased by 15 per cent from the previous year’s figure, at 25,237 compared with 21,928 the year before. Many personnel and their families choose instead to register as ordinary or overseas electors, but the increase that I have referred to shows that some progress is being made. There is more to be done.
The most recent service voting survey, carried out by MoD’s statistical branch and published in June last year, estimated that 65 per cent of service personnel were registered, and only 48 per cent of service personnel stationed overseas. That is lower than we would like, but it is worth noting that registration rates for younger age groups are generally lower than for older groups, at 44 per cent for 20 to 24 year-olds according to the Electoral Commission, and 30 per cent of the Armed Forces are aged between 18 and 24, compared with 18 per cent of the general population. None the less, it remains an important issue to address. Easing the administrative burden of re-registering to vote will help us to do so.
One aspect that came up time and again in responses by personnel to the MoD survey was the view that registering was important and that it was a personal responsibility to do so. We must retain this individual responsibility, and provide personnel and their families with information and resources to complete their registration. Great progress has been made on this since the last general election, with the introduction of an annual registration campaign run by the Electoral Commission and targeted at every unit around the world. The order would retain the individual responsibility of personnel and their families to register while improving convenience. This is an important part of our work to encourage higher registration rates in the service community, while at the same time maintaining an accurate electoral register. I commend the draft order to the Committee.
My Lords, when I first saw this order and the Explanatory Memorandum, I thought that they were relatively simple and straightforward. However, having listened to the Minister’s explanation, I am not so sure.
I start with the figures that the Minister quoted for service registration. He said that they had got it up to some 65 per cent. We would all accept that that is an improvement but, as he put it, it is not good enough. We would like to see the figure pushed up by whatever means possible in terms of encouraging individual members of the services to register and for their spouses or civil partners to register. However, dare I say that the possible problem might be due to the complexity of matters, and the fact that everything seems to change frequently? Paragraph 7 of the Explanatory Memorandum says—and the Minister made no bones about this:
“Prior to 2000 all service personnel who wished to be registered as electors had to register … which was valid indefinitely”.
For various reasons, that was reduced from indefinitely to annually, which was then changed to three years, which was then changed to five—but not for all the people who are so-called service voters. I may have misunderstood the Minister, but that will apply to the service voters who are members of the Armed Forces, plus spouses or civil partners, but not the other people defined as service voters, presumably including those in the diplomatic corps. So two different sorts of service voters are covered by this, some on a three-year basis and some on a five-year basis. The five years was previously three years, the three years previously annually; and, before that, it was indefinitely.
I am sure that the Government’s intentions are all very good, and I know that the Minister is trying to meet commitments that arose from the Political Parties and Elections Act, but constant chopping and changing of this sort will probably make things harder and discourage people from voting. He might think that a period of stability might be necessary, particularly in the light of the further changes that we will eventually get with individual registration coming in, which will no doubt lead to further orders that he and I will presumably have to discuss. Will the noble Lord consider that?
Finally, perhaps I may turn to one other matter—on which I am sure the noble Lord, Lord Roberts of Llandudno, will touch, because he touches on it with great regularity, and he is quite right to do so—namely postal voting, especially postal voting for those who are overseas at the moment. I am particularly thinking of those who are overseas on active, unaccompanied tours, such as those in Afghanistan or wherever. I am not particularly thinking of those who are based in Germany. This is most important for those who are on unaccompanied tours. I should like an assurance from the Minister that the Government are doing all that they can to ensure that not only postal voting forms but all other matters relevant to the election will be got out to those who are serving overseas, so that while they are doing their bit to defend democracy in the most hostile circumstances, they can also participate, as we would all think is right and proper.
I have no particular objection to these orders, but there has been a degree of chopping and changing over the years. A period of stability might be the answer that the noble Lord would wish to address in due course.
My Lords, I should like to express my thanks, and I think the thanks of all Members of the Committee, to the Minister and his team for seeking to fulfil promises given during the passage in this place and in the Chamber of the PPE Bill. He will remember that we had many debates on issues of this sort. I also pay tribute to my noble friend Lord Roberts of Llandudno who has been a stalwart protagonist for our troops to make sure that they are in the best possible position to take part not only in the forthcoming general election but, of course, in the future.
It is extremely important for us to recognise that our troops in Afghanistan, in particular, have every right to express their views through the ballot box in the coming general election. As the Minister said, it is important at this time when so many of our troops are on active service. Again, the context is important: there needs to be a good flow of information for them so that they know what the election is about. Similarly, it is important for us in this country to know their views on the military action that they are being asked to take on our behalf in defence of democracy and freedom. In that context, the Minister may like to dispel a fear expressed in an extraordinary article in the Daily Telegraph today, under the headline, “Army faces Afghan gag for election”. I do not know whether it was just seeking to deflect attention from the continuing Ashcroft excitements.
It is obviously important that not just the registration arrangements are as expeditious and effective as they possibly can be, but the collection of votes should also be as well organised as possible. I note that on 5 January the Minister’s colleague, Mr Michael Wills, said:
“It is very important that service personnel are registered and that they can exercise their vote. There are logistical problems in some areas of deployment overseas. We are exploring them vigorously and we have set up the working group. We will take every single measure that we can to make sure that service personnel can vote”.—[Official Report, Commons, 5/1/10; col. 6.]
The Minister may like to comment briefly on the progress of that working group. After all, it is only about two months until the likely date of the general election.
This order seeks to improve the situation. It may be that it is not going far enough, as was perhaps implied by the noble Lord, Lord Henley. We certainly would have liked to have seen some way in which it would be possible for forces personnel to register through their home base or their unit as they move around, but with the proviso that the electoral registration officer should be notified whenever a member of our Armed Forces is transferred from one unit to another, so that he or she does not by such means get disenfranchised. Whatever we say about the move from three to five years, this is only a small step forward. That is extremely important, and it will still be quite difficult to make sure that registration levels are improved.
I am not quite sure whether the figures that I have seen on this meet exactly those that the Minister has given, but I think it is true that 60,000 members of our Armed Forces are currently not registered to vote. There may have been an improvement, as the Minister suggested, but that is a very high figure—much higher than even in some inner-city areas, where there is considerable concern about low registration levels. I noticed this week that the Electoral Commission has indicated that some 56 per cent of 17 to 24 year-olds are not registered. The Armed Forces disproportionately include a large number of younger men and women. Therefore, if that is the general national figure, it may well be that the large number of Armed Forces personnel who are not registered are of that age group.
The order does not necessarily deal with the issue of the length of the campaign, an issue which the Minister will know we have raised several times in the Chamber in relation to the 2003 Electoral Commission recommendation that there should be consistency in all elections. In that context, I notice that there have been suggestions that the period of 11 days could be extended to 25 days. I know that the argument here is that this means that all the candidates have to be in place in good time. However, this might also be a very useful reform. Last-minute candidacy does not necessarily suggest a very effective form of democracy. It is certainly true that there was a lot of cross-party support for an extension to 25 days when my honourable friend the Member for North Devon, Mr Nick Harvey, brought forward Early Day Motion 862 in the previous Parliament.
The Electoral Commission has again made substantial recommendations on that score, not least to make sure that the electoral registration officers and the returning officers have the best possible chance of avoiding mistakes, avoiding fraud and including as many of the people who should be included in the process of our democracy as possible. I note, incidentally, that those who are currently posted to the Falklands—I think that this has been raised on previous occasions—are certainly anticipating quite a difficult period, given the relatively short gap between the closure and the election day itself, in making sure that postal votes are obtained and used to good effect.
The noble Lord, Lord Henley, has already referred to individual electoral registration, which I know that Members on all sides of the Committee have been warmly supporting. The Political Parties and Elections Act 2009 laid down a timetable for that, which is out of sync with the timetable for the service voters’ registration order currently before the Committee. The Electoral Commission, in its December 2009 submission, said that,
“under the proposed Service Voters’ Registration Order 2010 it would be possible for a Service voter declaration to be made in May 2015 and expire in May 2020. This would mean that, for three years from 2017, Service voters would not have provided the same personal identifiers as regular voters”.
There may be a case for special treatment, but I should like to hear the Minister spell it out. There might have been an easier way; indeed, the commission pointed out that there could have been an easier way to ensure total synchronisation between the two timescales.
I welcome the order so far as it goes, but I regret the fact that it has come at the fag-end of this Parliament, and that unexplained and unorganised questions still remain—as I fear that we are all going to recognise. It would have been better to have proceeded more speedily after the passage of the PPE Act last year so that we could all have looked at this with more care, and with more certainty that there were not going to be future problems.
My Lords, I join this debate having been knocking on electoral reform doors for many months. I thank the Minister for his generous patience during those months, although he has not answered the questions entirely to my satisfaction.
This is a timid order; we need something far more robust. When I first came here, or a year afterwards, I wondered whether in Christian Aid week we could have various denominations, possibly even based on various faiths, taking Prayers in the Chamber. I went to see one of the Clerks, who said, “Well, the last time we had any real change was in 1979”. I asked what happened then, and he said that before that date the bishops had to choose one of three psalms to read and that in 1979 they were allowed to choose one of 10. That is very slow progress, and so is this. A lot could have been done in the past few months, but it has not been done.
I raised this question before and had quite a helpful reply from the Minister. Could it be made automatic that when someone signs up for the Armed Forces they are automatically included on an electoral register? Automatic registration would mean a 100 per cent response rate instead of the 65 per cent that we have now.
Other things can also be done and we need to look at them. With the election coming in early May, we are told that it is too late to think of any major change in the coming weeks. I am sure that it is. It was not three months ago, but it is now. When we look at major change, we must look at the whole timetable for elections. The Electoral Commission suggests 25 days between nomination and polling day. That is a long time. At present with local elections there are 19 days between nomination day and polling day. For parliamentary elections, it is only 11 days between nomination day and polling day. This year, with the English local authorities that will have elections in May, there will be great confusion, with the 19 days here and the 11 days there. After the election, can we not have a look at the timetable and not be bound entirely by one that does not meet the needs of people today?
In 1997, there were fewer than 1 million postal voters in the whole of the UK. At the European elections, there were 6.1 million, and we could very well reach 8 million at the coming election—an increase of between eight or nine-fold. With that sort of increase, there will be added pressure on election offices throughout the country. Will there be cuts or will they get added staff, and will the staff be trained? When a department is under pressure, it can make mistakes. This does not only relate to the military, but if there are mistakes then results can be challenged in various constituencies. With a very close result, when no one party has a sufficient command of seats to form a Government immediately after an election, as with the hanging chads in the United States there may be disputes and people appealing against results. I am warning noble Lords that that could happen. I hope that it does not, but under stress it could happen. That could apply to the postal votes with the military overseas. We will need to get postal ballots out to them safely in places such as the Falklands and Afghanistan in 19 days and get them returned in time to be included in the count. Is that going to happen? Can it happen, especially as the delivery of mail will not be infallible? Some time ago, I was told that a military aeroplane would be at our disposal to take ballot papers from the UK out to Afghanistan, but only if operationally possible. I do not want to be emotional about this but we may end up with the situation where troops, many of whom are sacrificing their lives every day for the United Kingdom, are not allowed to vote in the United Kingdom.
Today the Minister may only be able to give a timid response, but after the election, whichever party is in power, I hope that we will be able to take a thorough look at this matter to ensure that unnecessary pressure and stress is not felt by the organisers and that people, whether they are overseas or here, are able to exercise their vote, as everyone is supposed to be able to do. I do not know who will be sitting there after the election but I ask the Minister to promise us a thoroughgoing review of this matter once the election is over in order to sort out all the difficulties. The Electoral Commission’s advice has been rejected by the Government but we have to make a thorough start or there will be a repeat of this problem many times in the future.
I thank noble Lords who have joined in the debate on this order. We are grateful to them all and I thank them for their support for it, even if they do not think that it takes matters as far forward as they would like.
I start by reminding noble Lords how personnel can register to vote. They can do so in three different ways. First, service personnel and their spouses or civil partners may choose, as many do, to register as ordinary electors via the household canvass, which has to be renewed annually. Secondly, they can choose to register as an overseas elector, giving an address in the UK. That also has to be renewed annually. The third way, and the one that we are attempting to boost via this order, is to register by way of a service declaration. That has to be renewed every three years and this order would extend that to five years.
I agree with the noble Lord, Lord Henley: we, too, would like the figures to be pushed up. He is right to say that the declaration of some people who register by way of service declaration lasts for 12 months and for others it lasts longer. For those in the Armed Forces, it lasts for three years and for others it lasts for 12 months. Here, we are increasing the service declaration of those in the Armed Forces to five years.
The noble Lord mentioned a period of stability. That is often a good idea but, if stability is to be achieved, one sometimes has to pay the price of not increasing the number of people who register. I think we all agree that we want to see a higher percentage of those serving in our Armed Forces registering than is the case at present.
I am very grateful for some of the comments from the noble Lord, Lord Tyler. I know that he is modest about himself but he is a great expert in this field, as is the noble Lord, Lord Roberts of Llandudno, who sits beside him.
So far as concerns individual registration, we will carry out registration campaigns, as we do currently. We have not yet worked out what the detailed processes and procedures will be with respect to service voters when we move to individual registration, but of course we will consider very carefully what should be done.
The noble Lord talked about the 60,000 unregistered Armed Forces personnel. I can only say that the Ministry of Defence carries out an annual survey, to which I referred earlier, of more than 2,000 personnel to investigate voting attitudes. The most recent survey found that 65 per cent of respondents were registered to vote. We cannot give precise annual figures because personnel may register as ordinary electors, service voters or overseas electors, and registration officers do not record the profession of ordinary or overseas electors.
On Afghanistan and information about the elections, I do not think the Daily Telegraph article relates to information going to service personnel. I think that the point it is trying to make, but does not do terribly well, is about information about what is happening in Afghanistan coming back to the electors of the United Kingdom.
I entirely understand the point the Minister is making and have read the article. The two-way flow of information is very important in the context of this general election campaign. If the Minister is, as I think he may be, seeking to dispel some fears about that two-way flow of information, I would be very grateful.
I am attempting to do so in terms of information to personnel in Afghanistan. Personnel can access information about the election out there. There is very good internet access and personnel can visit the websites of political parties and the media in that way. I have to say, as I always do, that that is subject to operational priorities. British newspapers are circulated to personnel, although they may be delayed.
I know the issue very well, and the noble Lord, Lord Roberts, should not apologise for having raised it on a number of occasions. It is a point he feels passionately about. Our view about registration is that for a general election we would like it to be as close to the polling day as possible to allow as many people to register as possible. We cannot start sending postal votes out until we know that nominations are closed. We would like people to be able to nominate or to be nominated as close to the election as possible.
Why is it important to have them as close to the election as possible for a parliamentary election but not for a European election, an Assembly election in Wales, an election for the Scottish Parliament or any other election? It is just this election that has the 11-day scale. Why is it more important for that than for other elections? I might be making a mistake with the timetable for one or two of them, but I know that local government and other elections have much longer to be nominated—another week. Why for one? Is that really a reason not to change that timetable?
For nominations, it is particularly important that at the time of a national general election, people should be allowed to nominate as late as possible. That is true about registration as well. As I understand it, the registration date for elections is the same whatever type of election it is. It is 11 days in order that people can register as late as is practical, yet still get their postal vote and be able to return it in good time.
As I understand it, and as I am advised, for all elections, the deadline for registration and for new or changed postal vote applications is 11 working days before polling day. Registration is the same. The final date is the same whether it is a Welsh Assembly election, a by-election in the ward in which I live in Leicestershire or a general election. It is the same so that as many people can register as possible because a weakness of our system is that not everyone registers—people in the inner cities or service personnel.
I appreciate the tributes paid to our Armed Forces in Afghanistan. As noble Lords know, we are doing our very best to ensure that a scheme is in place which will work for troops on active service in Afghanistan. As I said, we have been looking at the current postal voting system and we believe that it is possible to set up a scheme which would deliver ballot papers to and from Afghanistan in time for them to be counted. That scheme would work, subject to operational priorities, within the existing electoral timetable, which I know some noble Lords would like changed. Because of the time-saving made by using very regular military supply flights to and from Afghanistan, a registration campaign specifically for personnel is being carried out now. The Electoral Commission has produced bespoke registration forms for personnel in, or due to deploy to, Afghanistan for polling day. They will offer the postal voting scheme and a proxy application form for those who, for operational reasons, might be unable to vote by post.
Our aim, which we hope will be successful, is to expedite the printing, delivery and return of ballot papers, by working with the Ministry of Defence and the electoral administrations. Operational priorities, of course, will prevail. Success cannot be guaranteed. However, it should be quicker and more effective than the current system. I hope that this initiative is supported around the Committee.
I have spoken for long enough. I thank noble Lords for their support and I hope that the Committee supports the order.
Committee adjourned at 7.26 pm.