Tuesday, 5 July 2011.
Arrangement of Business
My Lords, before the Minister moves that the first statutory instrument be considered, I remind noble Lords that in the case of each statutory instrument the Motion before the Committee will be that the Committee do consider the statutory instrument in question. I should make it clear that the Motions to approve the statutory instruments will be moved in the Chamber in the usual way. If there is a Division in the House, the Committee will adjourn for 10 minutes.
Land Registration (Network Access) (Amendment) Rules 2011
Considered in Grand Committee
My Lords, the noble Baroness, Lady Royall, beat me to the punch by whispering across the point that I was going to make. Looking at her sitting in solitary splendour, I am reminded of the advice that you face your opponents but your enemies are behind you.
The rules before us today amend the Land Registration (Network Access) Rules 2008, which make provision about network access agreements. These are agreements with the Chief Land Registrar conferring authority to have access to the Land Registry’s electronic network on a person who is not a member of the Land Registry.
The purpose of these draft rules is to ensure that the criteria that applicants for a network access agreement must meet are consistent with the terms of the Legal Services Act 2007, which makes provision for the regulation of persons who carry on certain legal activities.
It may be helpful if I say something about land registration legislation and the Legal Services Act before considering these rules in more detail. The Land Registration Act 2002 enables the Chief Land Registrar to set up a land registry network to be used for electronic conveyancing. It provides that a person who is not a member of the Land Registry staff may have access to the network only if authorised by a network access agreement entered into with the Chief Land Registrar. The Land Registration (Network Access) Rules 2008 provide the criteria to be met by an applicant for a network access agreement, and also some of the terms that a network access agreement must contain. A conveyancer with a network access agreement can make electronic applications to the Land Registry that may result in a change to the register of land.
The Legal Services Act 2007 regulates the provision of legal services in England and Wales. Among its provisions, it sets out which legal activities are “reserved”, and who can carry out those reserved legal activities. One category of reserved legal activity is “reserved instrument activity”, which includes preparing certain conveyancing documents for the purposes of the Land Registration Act 2002, and making applications or lodging documents for registration with the Land Registry. Under the Legal Services Act, only an “authorised person” is allowed to carry out a reserved legal activity. “Person” includes a body of persons. The authorised person may be authorised to carry out all or only some of the reserved legal activities. It is a criminal offence to carry on a reserved legal activity if a person is not authorised to do so.
Much of the Legal Services Act 2007 came into force in 2010. Later this year, it is expected that further sections of the Act will come into force that will allow for the introduction of licensed bodies, which are commonly referred to as alternative business structures. The purpose is to relax the statutory and regulatory limitations on the ownership and management of legal practices to allow for greater flexibility and choice in the provision of legal services.
The Land Registration (Network Access) Rules 2008 came into force before the changes made by the Legal Services Act. At that time, the provision of reserved legal activities was subject to the provisions of the Solicitors Act 1974 and various other enactments. The network access rules were drafted to be consistent with those enactments. At that time, the regulation of legal services was based around the regulation of individual solicitors, barristers, licensed conveyancers and notaries. Under the Legal Services Act, there is a move towards the regulation of bodies that deliver legal services.
Now that the Legal Services Act has made changes to the regulation of legal services, and more changes are on their way with the introduction of alternative business structures, it is necessary to amend the network access rules for consistency with the new legislation. It would be inappropriate for the Chief Land Registrar to enter into a network access agreement with a person or body that was not authorised under the Legal Services Act to undertake land registration activities.
The rules before us today amend the criteria to be met by applicants for a network access agreement to bring them into line with the Legal Services Act and to make adjustments to take account of alternative business structures. These rules will allow for a person or body that is authorised under the Legal Services Act to carry on legal activities relating to land registration, or a person or body that employs such an authorised person who will undertake those activities or direct and supervise them, to enter into a network access agreement, provided that they also meet other criteria set out in the network access rules. One class of body that can currently enter into a network access agreement will be unaffected—a government department. This is because of the exemption for public officers from the provisions of the Legal Services Act.
In addition, amendments have been made to the definition of “intervention”, and “disciplinary proceedings” to include reference to licensing authorities which will regulate alternative business structures; and the insurance criterion has been amended so that the words correspond with wording used in the Legal Services Act.
Members of the Committee will see that the amendments will come into force on the day that Section 71 of the Legal Services Act comes into force. That section will allow for the commencement of alternative business structures. In drawing up the amendments, the Government intended to ensure a level playing field for all legal service providers—whether traditional conveyancing practices or alternative business structures. This reflects the policy behind the Legal Services Act.
The Lord Chancellor must consult such persons as he considers appropriate before making rules relating to access to the Land Registry’s electronic network. An impact assessment was also undertaken. The majority of those who responded to the consultation and impact assessment supported the proposals.
In summary, the rules update the criteria for entitlement to a network access agreement with the Chief Land Registrar, reflecting provisions already made by the Legal Services Act. I therefore commend these draft rules to the Committee.
My Lords, the important point that should be appreciated—I am sure that it is—is that when a title is registered, it is an absolute title. It can be obtained by fraud or by any other means, but it is an absolute title, once registration has been granted. That means that the person who owns that title can sell it on and deal with it as if it were his own. Any issue as to how that registration has been obtained is left for litigation. Therefore, it is crucial that the integrity of the register is maintained. So much depends on trust. We trust that the people who make these applications will do so honestly, with proper consideration of all the issues and in the interests of their clients. That is why we have all these rules, which endeavour to ensure that the very competent staff of the Land Registry are not deceived by applications from outside.
What is this all about? It brings the alternative business structures system into the position of being an authorised applicant to deal with the Land Registry. I have expressed my views on these alternative business structures so often that I sound a little like Cassandra. However, I foresee trouble. If there is trouble in the future, it is not the lawyers who will suffer; they will do very well. It is the consumer and the customer who will suffer.
There is a lack of confidence in the way that this has been put forward. The summary of the impact assessment says on page 3, under the heading “Other key non-monetised benefits by ‘main affected groups’”:
“The proposals will avoid the potential costs to Land Registry customers outlined in the base case by ensuring only persons authorised to prepare and make applications relating to land registration are able to do so”.
That states the obvious; it is the position at the moment. The summary goes on:
“Land Registry customers may further benefit if the new definition of ‘conveyancer’”—
that is, these rules—
“leads to better quality conveyancing practices compared to current levels”.
Why it should lead to better conveyancing practices than the current system, under which conveyancing is carried out by qualified lawyers or managing executives, I do not know. The summary continues:
“Ensuring ABS firms fall within the definition should also lead to increased competition in the conveyancing market, which may provide efficiency benefits for society, and direct benefits for Land Registry customers in the form of lower prices and/or increased choice”.
The sort of situation that I envisage, particularly in a tight housing market, is that developers will offer a conveyancing service, or an ABS. They will have an interest in the outcome of the conveyance of their own homes and access to the registry. They may act for both parties. All the checks and balances that have developed over the years to protect the consumer and householder will be weakened.
I have had my usual rant on this subject, so I shall leave it at that. I cannot say that I welcome this measure.
My Lords, I had not intended to intervene on this matter but since “network access” appears in the title of the rules that we are discussing, I seek reassurance from my noble friend about the checks that are being made to ensure that those who are not authorised do not obtain access. Something that has recently come to public notice is the ELMER database, which is operated by the Serious and Organised Crime Agency. This is where reports of suspicious activity are collected for purposes of investigating money laundering. It appeared that the rules were perfectly tightly drawn, and that only SOCA and police forces throughout the country could obtain access to the information that is contained there. There are now 1.2 million records on the suspicious activity report database. Subsequently, now it transpires that actually all sorts of social security departments and other operations are able to get into the database. Given the importance of this, and the critical nature of the functions being carried out, it would be good to know that careful checks are being made to ensure that people who are not entitled to access do not get it.
My Lords, I shall make a brief intervention on this, with a couple of quick questions. In the Explanatory Notes somewhere it says that the first alternative business structures will be established in October this year. Is it anticipated that that is the case? Furthermore, there is mention of an informal consolidated text in the document. What is the state of an informal consolidated text, as opposed to a proper consolidated body of law?
I very much welcome the update of the Land Registry portal guidance notes, which will be important. However, following on from what the noble Lord, Lord Thomas of Gresford, has said, and the noble Lord, Lord Hodgson of Astley Abbotts, there are clearly potential problems with this order. There is to be a post-implementation review in 2015. I have two things to say about that. In view of the concerns expressed by noble Lords, are the five years before there is any sort of review not a little too long? If consumers have been found to be suffering as a result of this order, perhaps the Government might seek to act before then. If the review finds that the policy objectives of the order have not been met and that consumers have been harmed as a result, will the Government seek to act and revise the order in some way to ensure that consumers do not continue to suffer as a result?
I am grateful to noble Lords who have participated. On the important question of when alternative business structures will be introduced, the Legal Services Board and the Ministry of Justice are working towards October 2011 for implementation. The noble Baroness was in government long enough to know that saying that we are working towards that is as firm a commitment as I can make at this precise moment—but that is the objective.
On the question asked by the noble Lord, Lord Thomas, about the importance of the integrity of the Land Registry process, I need no urging on that. I am the Minister responsible for the Land Registry. One thing that I continually impress on colleagues from other departments is that we have a very important public asset in the trust that people put in the Land Registry process, and rightly so. For the great majority of us, the title and ownership of our property—those of us who are house owners—represents the biggest investment that we ever make in our lives. So the integrity of that process is extremely important. Although I have heard before the doubts expressed by the noble Lord, Lord Thomas, about alternative business structures, I would not go so far as to describe him as a Conservative on matters of legal structures.
Our aim is to bring what we hope will be some exciting competitive pressures into the delivery of legal services, and those responsible for delivery will keep a close eye on things. In a recent meeting on related matters, the noble Baroness, Lady Hayter, attending in her capacity as chair of the Legal Services Consumer Panel, expressed confidence in the overall checks and balances being put in place. Alternative business structures will provide opportunities for practitioners from different professions, legal and non-legal, to join up to ensure that it is economically viable for them to continue to provide legal and associated services and gain efficiency savings.
Although we promised a review after five years, Land Registry constantly reviews its practices and will review the network access rules if alternative business structures result, paying particular regard to consumers.
The noble Lord, Lord Hodgson, spoke about the use of databases—I think that he referred to the suspicious activity database. Thorough checks are made before entering into network access agreements and continuing checks are made to make sure that there is no abuse. However, the noble Lord raised an interesting broader point. The advance of technology has meant that the ability of the state and private industry to amass vast amounts of information about the individual could pose a threat to their civil liberties. I shall quote, as I do frequently in other places, something that the noble Lord, Lord Thomas of Gresford, once said to me. He said that in a free society there must be a limit to what the state knows about the individual. In our modern world, vast amounts of information are amassed. What is more, there is almost limitless technological ability to exchange that information unless checks and balances are put in place. That is partly the responsibility of government and Parliament.
I hope that I have covered the points that colleagues have raised. As I have said, the measures bring the various Acts into kilter and anticipate new structures. On that basis, I hope that the Committee will agree the Motion.
Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011
Considered in Grand Committee
My Lords, as the Committee will be aware, the Rehabilitation of Offenders Act 1974 exists to support the resettlement of offenders into society where they have demonstrated that they have put their criminal behaviour behind them. After a prolonged period of time, therefore, the Act declares convictions spent and an ex-offender need no longer declare them. When they apply for jobs, or seek insurance, they need not disclose this information and subsequently not suffer the potential discrimination as a result of it.
There must of course be exceptions to this rule. Where, for example, someone is applying to work with children or with vulnerable adults, it is appropriate that the employer knows the full history of the individual. The exceptions order to the Act is the means by which this is achieved.
The exceptions order lists certain activities that are exempt from the Act. This means that where an individual is applying for a job within a specified activity or is involved in specified proceedings, their full criminal record history is available to the employer. If an individual has a conviction that has been declared spent, the prospective employer will then see it. We must be careful not to jeopardise the operation of the Rehabilitation of Offenders Act, so the activities listed on the exceptions order are only those that present an opportunity for people involved to cause harm to the public or the work concerned is of a sensitive nature, which might include children, the finance sector or national security.
This careful balance between allowing offenders to lead law-abiding lives by removing barriers and maintaining public protection needs to keep pace with the present. The exceptions order must therefore remain up to date with developments elsewhere. The order presented today is an illustration of the Government seeking to maintain this balance in line with the developments occurring in the financial and legal sectors.
Noble Lords will know that wide proposals for reform of the Rehabilitation of Offenders Act are being considered by the Government. Today is not the day to debate these, and I cannot make further announcements at this stage.
The current exceptions order enables the Financial Services Authority to take spent convictions into account when authorising a person to carry out regulated activities under the Financial Services and Markets Act 2000. This amendment will enable the Financial Services Authority to take spent convictions into account when authorising a new category of business—payments institutions.
Payments institutions were brought within the scope of regulation by the Financial Services Authority in 2009. They provide payment services, for example enabling cash to be placed in or withdrawn from a payment account, and range from large credit card companies to sole traders offering to send money abroad for a small fee. Money remitters, for example, transfer large amounts of money to and from overseas, with many specialising in remitting funds to specific accounts, such as in India, Pakistan or Poland, on behalf of immigrant communities. In many cases these customers are financially disadvantaged people, who have limited access to the banking system.
There have been a number of failures of business in the money remittance industry, and the failures have uncovered an element of mismanagement, financial impropriety or fraud. It is therefore important that the Financial Services Authority can assess those responsible for management of these businesses before authorising them to carry on business. This amendment will therefore bring payments institutions within the exceptions order so that the Financial Services Authority can take into account the full background of those responsible for the management of these bodies.
The second amendment relates to the introduction of alternative business structures, which will allow lawyers and non-lawyers to work together to provide legal and non-legal services. These bodies will be licensed and regulated by licensing authorities. Two new roles—head of legal practice and head of finance administration—are being introduced and will be responsible for an alternative business structure’s compliance with their licence. Licensing authorities must be satisfied that individuals applying to be heads of legal practice and heads of finance administration are fit and proper persons for appointment. In particular, not only will persons in these roles be responsible for compliance with the body’s licence, they could have access to vulnerable clients, client money and personal or sensitive client information. Making this amendment means that licensing authorities can seek information on previous convictions and cautions from applicants seeking to take up the role of head of legal practice and head of finance and administration. This will ensure that they are fit and proper for appointment.
I am aware that a further request has recently been made by the Legal Services Board for non-lawyer owners and managers of alternative business structures to be added to the exceptions order. At this early stage, no decision has been made. We will of course give careful consideration to this request, and this process is under way.
The final amendment is one of wording only. There is currently an entry on the exceptions order relating to “actuary”. The term is currently defined in the exceptions order as,
“a member of the Institute of Actuaries or a member or student of the Faculty of Actuaries”.
On 1 August 2010, these two bodies merged to become the Institute and Faculty of Actuaries. In order to continue to give effect to the applicable exception the definition is to be updated to reflect this change.
I hope that I will have the agreement of all noble Lords that the exceptions order is an important means of protecting the public. The instrument presented today responds to the latest analysis of risks. It therefore ensures that legislation is up to date and effective in its aim, while maintaining the vital balance towards the resettlement of offenders that the Rehabilitation of Offenders Act seeks to achieve. I beg to move.
My Lords, I declare an interest in the global firm of solicitors, Beachcroft LLP, where I have been a partner since 1969, and as vice-chairman of Justice. I say that with trepidation in the presence of the emeritus chairman of Justice—my noble friend Lord Goodhart—because Justice must deserve a great deal of credit for the original rehabilitation of offenders legislation.
However, I need help from my noble friend the Minister on giving a commitment—a commitment that was given by the party opposite when it had responsibility. I also gave personal commitments when I was leading for the Opposition from the Front Bench and made it clear, right at the outset, that a single set of regulatory standards would be required for alternative business structures.
The Minister has received a fascinating brief from his officials to explain the mistake in singling out “head of legal practice” or “head of finance and administration”. I warmly commend the officials for having thought up this reason, but it was two years ago that we made it clear that it is the owners and managers of the alternative business structures who must be the people in the spotlight. It may well be that they will need under them a head of legal practice or finance and administration, but at the end of the day the key role played by the owner/investor/manager of the alternative business structures must mean that they should be subject to the same authorisation rules as solicitors in regard to disclosing criminal offences. Why? Because we must ensure, as both Front Benches agreed we had to, that convicted criminals are not able to become owners and managers of legal practices.
It is not just that a request has only just been received from the Legal Services Board, because it was in June 2009 that the Solicitors Regulation Authority made it clear that a single set of regulatory standards would be required. Why on earth this is not included now I just do not know, because what it means is that someone who has served a sentence for a serious crime such as money laundering does not have to disclose this when applying to be an owner or investor in an alternative business structure firm.
I suppose that my noble friend can immediately move to give me assistance by promising that there will be a further order to rectify this omission, which will then make it clear that the exemption of course also applies to owners and managers of ABS firms, as well as to the heads of legal practice and finance and administration within those firms.
My Lords, I thank my noble friend the Minister for the explanation that he offered on the order. My noble friend Lord Thomas of Gresford has commented on some aspects of the order, particularly in relation to the Legal Services Act 2007 (Appeals from Licensing Authority Decisions) Order 2011. I intend to build on that. However, let me make a confession first. My noble friend Lord Hunt just wanted a minute from me, but in that minute he has stolen half my thunder. But I can build on what he said—and certainly the Minister might look sympathetically at why we are making this request.
As one who is promoting the Rehabilitation of Offenders (Amendment) Bill, I am aware that this order is adding additional exceptions to the Rehabilitation of Offenders Act, which does not include external owners. The matter was brought to the attention of the Ministry of Justice by the Solicitors Regulation Authority, which said that a single set of regulatory standards will be required, based on the existing ones for solicitors and traditional law firms and on the assumption that all potential owners of alternative business structures will have to disclose all previous criminal convictions. It would be very helpful to know from my noble friend the Minister why the Government have not included external owners in the list of exceptions. The Solicitors Regulation Authority is clear that it will not be able to subject external owners and managers to the same standard of fitness and propriety checks as apply to solicitors. I am told that the SRA conducted a public consultation and no objections were raised about alternative business structure owners and managers.
Will the Minister now intervene to ensure that the liberalisation of the market can occur with appropriate public protection? My Private Member’s Bill includes exceptions in serious cases, and that is right; it is how it should be, if we are to build the confidence of the public in the structures that we promote. The crux of the matter is to establish a strict regulatory regime so that serious criminals cannot take control of legal practices. This is where changes are necessary.
There is a clear divide between what the Ministry of Justice is proposing and what is required by the SRA of the Law Society. It would be helpful to have the Minister’s reasons for this order. It poses difficulties for the SRA, whose task it is to establish standards, and it is the SRA’s view that it cannot license ABS until these exceptions are in place.
My Lords, I support my noble friends in their comments. On the previous occasion, as I am sure the noble Lord will recall, I used the illustration of having appeared in Hong Kong in a case where I was instructed by what turned out to be a Triad-backed solicitor’s firm. The solicitor was merely the front man. Therefore, the owners and managers of a firm must be of a proper standard.
While my noble friend was replying to the previous debate, I suddenly recalled that within the past three years I have represented someone charged with stealing a house. It was a fairly unlikely charge, which I had not come across before, but there were two solicitors in the dock with the person in question. This is the real world. This is where people who are undesirable can move in and take advantage of the legal system if it does not contain all the safeguards. The necessity for owners and managers of alternative business structure firms to be subject to the same checks as every other solicitors firm is essential, so I support my noble friend.
My Lords, I also support what noble Lords opposite have said. Of course, as the Minister said, we have to be careful not to jeopardise the workings of the Rehabilitation of Offenders Act 1974, but there clearly have to be exceptions. Like noble Lords opposite, frankly I do not understand why this order does not encompass ABS firms, or the head of legal practice and head of finance administration, to which the Minister referred. In view of the strong feelings that have been expressed in Committee this afternoon, I wonder whether the Minister would consider taking back this order and relaying it once proper consideration has been given to the inclusion of the owners of ABS firms. I think that all noble Lords present would like to see one single set of regulations. That would make for much better government and much better governance, and I should be grateful for the Minister’s views.
If the noble Lord is not able to take back this order—and he may not be able to do so—I should be grateful for an assurance that he will come back in the very near future with another order that encompasses the ownership of ABS firms. I quote from his honourable friend Jonathan Djanogly, who, when speaking for the Conservative opposition in the House of Commons—I am afraid that I do not have the words of the noble Lord, Lord Hunt of Wirral, in front of me—said:
“The effectiveness of fitness-to-own provisions is a crucial element of the public protections that need to be in place before external ownership of ABS firms can safely be permitted. It is essential to avoid the spectre of law firms being owned by criminal elements”.—[Official Report, Commons, Legal Services Bill Committee, 22/6/07; col. 300.]
I think that, unless we have an order before us in the very near future that encompasses ABS firms, we will indeed have that spectre before us.
I knew I was right when I said that the enemies are behind me, but very constructive enemies they have been. One of the benefits of this procedure is that we can examine orders such as this in a non-partisan but expert way. As much as it is within my power to give the assurances that the noble Baroness, Lady Royall, has asked for, I give those assurances. The points that have been made by my noble friends during this debate should be treated with proper urgency. I am not in a position to withdraw the order, which covers matters that it is important to take forward. However, the noble Baroness is quite right: in opposition both Jonathan Djanogly in the other place and my noble friend Lord Hunt made it very clear that the effectiveness of fitness-to-own provisions was a crucial element of the consumer protection measures that needed to be in place for all ABSs. That position has not changed.
I can assure the Committee that the gist of this debate—or at least Hansard—will be made known to my colleagues in the Ministry of Justice, along with the strong message that a sense of urgency is needed in taking this matter forward. The argument that a compelling case and a clear understanding of the potential risks are needed to justify inclusion in exception orders is valid. Licensing authorities have a range of regulatory powers and will be required to put in place strict licensing rules to ensure that licensing bodies are properly regulated and consumers adequately protected.
Nevertheless, I accept the point made by my noble friend Lord Dholakia. I hope we can carry forward his initiative in producing a new Private Member’s Bill that updates the Act. If we are to get general public support for a rehabilitation of offenders Act, and carry public confidence in it, we must have exception orders to give the protections that the public require. Certainly, the case made today for owners being part of the Act is, to my mind as a lay man, almost unanswerable. I hear what has been said. It would seem only natural to a simple lay man that owners and managers of ABSs should be included in the order. I will take the very strong recommendations of this Committee back to colleagues. In the mean time, I ask the Committee to accept this order.
Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 3) Order 2011
Considered in Grand Committee
My Lords, the commercial order would implement Section 2(1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007. The amendment order would add two categories of person to the list contained in Section 2(2) of the Act. These are persons owed a duty of care by virtue of either being held in the custody area of UK Border Agency customs facilities or being held in Ministry of Defence service custody premises.
The purpose of the commencement order is to implement Section 2(1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007—which I shall refer to as the “custody provisions”. The amendment order will extend the provisions to facilities not already covered in the Act; namely, Ministry of Defence service custody premises and customs custody facilities which have now become the responsibility of the UK Border Agency.
Before going into the detail of the orders, I shall briefly remind Members of the Committee of the context surrounding the custody provisions. The Corporate Manslaughter and Corporate Homicide Act 2007 created an offence whereby an organisation could be found guilty of corporate manslaughter if the way in which its activities were managed or organised resulted in a death and amounted to a gross breach of a relevant duty of care to the deceased. The breach must be grossly negligent and a substantial part of it must have been in the way activities were managed by senior management.
The offence was created to deal with the problem of obtaining convictions of corporate bodies because of the operation of the identification principle, which required the prosecution to show that the offence was in essence committed by the “directing mind” of an organisation. This meant that, in some instances, because of the complexities of the decision-making process in big companies, it was not possible to identify a single individual—that is to say, the directing mind—with specific responsibility for the failing. The new offence allows an organisation’s liability to be assessed on a wider basis, providing a more effective means of accountability for very serious management failings across the organisation.
The majority of the Act came into force on 6 April 2008, with the exception of the custody provisions, whose implementation Parliament agreed would be delayed by three to five years. During the final stages of the Bill’s passage through Parliament, a lengthy discussion took place as to whether deaths in custody should be covered by the Act. After much debate, the then Government were finally persuaded to accept clauses that would extend the Act to the management of custody, but argued that custody providers would need time to prepare. A compromise agreement was reached to the effect that the custody provisions would be implemented between three and five years after the Act came into force. The Bill was passed on this basis. Custody providers have since indicated their readiness to implement the provisions in two reports to Parliament, published in 2008 and 2009.
The custody provisions do not create additional duties. All custody providers already owe duties of care to detainees. The commencement order makes these duties of care relevant for the purposes of the offence in the Act, which means that, once commenced, an organisation responsible for the management of custody, including a government department, could be convicted of corporate manslaughter if its management failings led to a death.
The commencement order simply illustrates the coalition Government’s long-standing commitment to commence a provision which we fought for during the passage of the Bill. We felt then, and still do now, that there is no good reason why a victim of a failing by a government department should not be afforded the same protection as the victim of a failing by a private corporation. We believe that the state has a particular responsibility to those for whom it has a duty of care, such as persons held in custody, and should lead by example. Having established that custody providers are ready to comply with the custody provisions in the Act, we are here today to debate commencement of the provisions at the earliest available opportunity.
We are here today also to debate an amendment order which brings military and customs facilities into the scope of the Act. This is an important amendment that ensures that the law will be applied consistently to all custody providers. The intention to extend the Act is nothing new; it was signalled in the annual progress report that I have already mentioned, and we have been assured by the relevant departments that the custody providers concerned are ready for implementation.
As with commencement, the question is not so much why extend but what possible reason can there be not to extend. I put it to the House that there is none. I believe that both orders constitute positive and necessary developments, and I trust that the members of this Committee will agree.
My Lords, it is helpful to put this order into some context. The corporate manslaughter provisions were considered by the Independent Advisory Panel on Deaths in Custody. When one looks at the statistics on page 9 of the report, which was a joint Ministry of Justice and Home Office report, one sees that in 1999 there were 643 deaths in state custody. That number has reduced in the past two years to 483 and 366, but that is a lot of people who have died in custody. It is important that there should be corporate responsibility, not simply for claims of negligence but for criminal claims. We are very pleased that this order is now being introduced.
I have two questions for the Minister. One relates to service custody. Do I take it that the Ministry of Defence could be criminally liable for a death in service custody abroad? The other matter that concerns me is whether the private organisations that provide prison accommodation and in particular transport come within the provisions of the Act, so that any default on their part means that they will be subject to criminal liability as well as to liability in civil law.
My Lords, I would like to step in briefly on this matter. The law dealing with the liability of corporations for offences, or matters for which the corporation has been responsible, has been inadequate in recent years. In particular, to make the corporation liable for homicide, as in this case, or for other purposes, it has been necessary for it to be shown that not only was the corporation itself negligent but that negligence could be attributed to a directive member of the corporation. Therefore, I very much welcome this particular piece of this particular order.
I should mention also that a recent and important change in this law came into effect a couple of days ago with the Bribery Act, which makes liability for bribery subject not to any particular identification of any particular individual who is responsible but simply to the incompetence of the corporation itself. Therefore, I very much welcome this particular amendment.
My Lords, I, too, welcome the orders. As the Minister said, at the time of the passage of the Corporate Manslaughter and Corporate Homicide Act 2007 there was much discussion about this issue in both Houses. It was absolutely right that the Bill should encompass this particular aspect, because it is important that an organisation can be found guilty of manslaughter if the way in which its activities were managed or organised causes a death. That is absolutely right. It is particularly important for the victims’ families because they need the certainty that such deaths can be properly investigated and authorities brought to justice.
I have only a couple of questions. My first question relates to the custody suites in the UK Border Agency and the Ministry of Defence. Is it intended that there will be a review of those specific holding and detention areas? Like the noble Lord, Lord Thomas of Gresford, I would like an assurance that those in the private sector who are responsible for the custody and transporting of offenders can also be brought to justice.
In the other place, a member of the DUP asked whether or not there had been discussions with the Northern Ireland Assembly. It was not absolutely clear from the Minister’s response what discussions had taken place with the Assembly. I realise that they are a separate entity but it is important that discussions should take place between the Assembly and the Government and I would grateful for information from the Minister.
I thank all noble Lords who have contributed to the debate and for the general welcome that has been given to the orders.
On the question asked by my noble friend Lord Thomas of Gresford, Section 28 provides that the Act extends only to England, Wales, Scotland and Northern Ireland; it will not apply to Ministry of Defence facilities abroad. If I am wrong about that I shall write to my noble friend. However, I believe that to be correct.
On the issue of private providers, which was referred to by both the noble Baroness, Lady Royall, and my noble friend Lord Thomas of Gresford, the Act applies to contracted services. Contracted service providers of custody will continue to be responsible for their actions in delivering safe custody. The Act does not place new duties on them. We will retain residual responsibilities in relation to the management and monitoring of the contractual arrangements, and they will be covered by the Act in this respect. They will have the same duties of care.
On the issue of inspection, in respect of the Border Agency customs facilities, a review relating to the care of an arrested teenager was initiated as a result of a death in custody in 2007 and is due to be finalised by the Chief Medical Officer. Once the recommendations have been finalised, the UKBA will be reviewing its processes and initiating an implementation programme.
In respect of the MoD, the Army has reviewed its need for service custody facilities and in September 2010 endorsed some recommendations, including an immediate reduction of authorised unit custodial facilities from 67 to 22.
The points made by the Committee have been extremely relevant, not least the rather chilling figures of the number of deaths in custody. Over recent years—this applies also to the record of the previous Administration—there has been a consistent attempt by government to address the problems. My noble friend Lord Thomas will agree that the bald figures cover a range of reasons for death in custody. Nevertheless, in recent years the police, prison authorities and all those who have a duty of care have made a real effort to address the reasons for deaths and to prevent them wherever possible. They have changed techniques for dealing with violent prisoners, changed the furniture in cells and limited opportunities for suicides. They have introduced a whole range of activities and initiatives to tackle the problem.
There is no doubt that the Government, as the state, freely accept in this order the responsibilities that they imposed on the private sector with the initial Act. I remember my noble friend Lord Goodhart and others pressing these matters when we were in opposition and I am pleased that we are able to bring these orders together.
Criminal justice is devolved in Northern Ireland and the local Minister and Assembly have the relevant commencement powers under the Corporate Manslaughter and Corporate Homicide Act, which we understand the Assembly is looking at. I am the Minister in the MoJ responsible for contact with the devolved Assemblies and Administrations and I shall make sure that our views on and experiences of this aspect are made available to our colleagues in Northern Ireland.
In relation to private provision of prison and transport facilities, what is the relationship between those private facilities and the department? Could the department resist a charge under the Corporate Manslaughter and Corporate Homicide Act on the basis that the responsibility has been contracted out? My noble friend may not be able to answer straightaway, but I would be grateful if he could clarify that at some stage.
I certainly cannot answer that directly; I will have to write. It is an interesting point. I shall not mention providers by name, but if a private prison or a private transporter of prisoners was guilty of corporate manslaughter, would the line of responsibility run back to the MoJ? I take it that that is the point. It is an interesting point. I suspect that, on the one hand, the suggestion would be that the responsibility for the corporate manslaughter would be that of the provider and that the provider would be charged; on the other hand, there is the argument that the MoJ should never have given the contract to such a body in the first place. This is what makes this job both interesting and frightening at times. I shall write to my noble friend to clarify.
Corporate Manslaughter and Corporate Homicide Act 2007 (Amendment) Order 2011
Considered in Grand Committee
Charities Act 2006 (Principal Regulators of Exempt Charities) Regulations 2011
Considered in Grand Committee
My Lords, I shall take together this order and the Charities Act 2006 (Changes in Exempt Charities) Order 2011. The two instruments relate to the regulation as charities of three classes of state-funded educational charity: academies, sixth-form colleges, and foundation and voluntary schools.
The changes in the exempt charities order will reconfer exempt-charity status on sixth-form colleges and foundation and voluntary schools. Academies are charities and will become exempt charities from 1 August 2011 by virtue of the Academies Act 2010.
The principal regulator regulations will appoint principal regulators for all three groups of exempt charities, with the duty to promote their charity law compliance. Exempt charities have not been regulated in the same way as other charities. The general law of charity applies to exempt charities, but they are exempt from many provisions of the Charities Acts, cannot register with the Charity Commission and are exempt from its supervisory powers. The categories of exempt institutions, in so far as they are charities, are mostly set out in Schedule 2 to the Charities Act 1993.
Historically, exempt status was usually conferred by legislation on charities that were already regulated, so additional supervision by the Charity Commission was considered unnecessary. However, this was challenged in 2002 by the then Prime Minister’s Strategy Unit, which found that the position was anomalous, confusing for the public, and potentially risked the integrity of charitable status.
Most respondents to a public consultation in 2003 agreed that exempt charities benefiting from the advantages of charitable status should come under some form of regulatory oversight as charities, but concerns were expressed that duplication or new regulatory burdens should be avoided.
The Charities Act 2006 marked a new approach. Wherever possible, a body that already has oversight responsibility will become the main or “principal” regulator for an exempt charity or group of exempt charities. Principal regulators have a new duty to promote charity law compliance in the charities for which they are responsible. They have two key roles: first, providing tailored advice for their sector or signposting to relevant guidance to help trustees meet their legal obligations; and, secondly, stepping in where something goes wrong. In serious cases, it is likely that the Charity Commission will also need to be involved.
The aim of the principal regulator approach is for smarter regulation that maintains trust and confidence in charities but avoids regulatory duplication by using the regulator’s existing processes and procedures to promote charity law compliance. Where it is not possible to identify a principal regulator for a charity or group of charities, they will cease to be exempt and, if their income exceeds a £100,000 annual income threshold, will be required to register with the commission.
Although that is not the case for any of the charities we are considering today, since 2006 there has been phased implementation of this new approach. In some cases the 2006 Act itself removed exempt status from groups of charities, but it also provides the Minister for the Cabinet Office with a power in Section 11 to remove, or to confer, exempt charity status from a charity or class of charities. This power can be exercised only if the Minister is satisfied that the change is desirable in the interest of ensuring appropriate or effective charity regulation of the charities or charity concerned. In addition, the 2006 Act provides the Minister with the power in Section 13 to appoint a principal regulator for an exempt charity or class of exempt charities.
The 2006 Act increases the extent to which exempt charities are subject to the Charity Commission’s regulatory jurisdiction in Sections 12 and 14 and Schedule 5. But importantly, the Charity Commission cannot exercise its regulatory compliance powers in relation to an exempt charity without first consulting the exempt charity’s principal regulator—in Section 14 —and it cannot open a statutory inquiry into an exempt charity unless invited to do so by the principal regulator listed in Schedule 5.
I will now summarise the changes that these instruments will bring about, which were announced to Parliament in a Written Ministerial Statement on 30 March this year by the Minister for Civil Society, Nick Hurd MP, and the Under-Secretary of State for Education, the Minister responsible for schools, my noble friend Lord Hill.
Taking each of the three categories in turn, I will deal first with academies. Academies will, from 1 August this year, be exempt charities when Section 12(4) of the Academies Act 2010 is commenced. As of 1 July there were 801 academies in England. There are no academies in Wales.
During the debate on the Academies Act 2010 it was proposed that the Young People’s Learning Agency should be appointed as the principal regulator of academies. However, following the review of public bodies, the YPLA will, subject to parliamentary approval, be succeeded next year by the Education Funding Agency, an executive agency of the Department for Education. Therefore it is now considered more appropriate to appoint the Secretary of State for Education as principal regulator of academies, because he has existing funding and regulatory roles.
In practice, the YPLA and its proposed successor, the EFA, would carry out much of the necessary information gathering which would then be used to report to and advise the Secretary of State on his principal regulatory role. The principal regulator regulations therefore appoint the Secretary of State as principal regulator of academies.
The second category is what I have referred to as foundation and voluntary schools. In fact, it includes the following bodies: the governing bodies of foundation, voluntary and foundation special schools, foundation bodies established under Section 21 of the School Standards and Framework Act 1998, and connected institutions.
There are believed to be over 8,100 of these charities in England, and 175 in Wales. Historically they have been exempt charities, but in January 2009 they ceased to be exempt, although transitional provisions pending a final decision on their status have meant that they continue to be treated as if they are exempt. These transitional provisions are due to expire on 1 September, having already been extended twice.
In 2010 the Cabinet Office consulted on the proposal to reconfer exempt charity status on foundation and voluntary schools, and appoint an appropriate principal regulator. Responses strongly supported the proposal to reconfer exempt charity status, although views differed over which personal body should be appointed as principal regulator.
The Department for Education regulates these charities under education law, so is ideally placed to take on the role of principal regulator. This ensures compliance with charity law while avoiding regulatory duplication, in line with the Government’s commitment to reducing the burden of regulation on schools.
The changes in the exempt charities order reconfers exempt charity status on these foundation and voluntary school charities. The principal regulator regulations appoint the Secretary of State for Education as principal regulator of these charities in England and Welsh Ministers as principal regulator of these charities in Wales.
Following detailed analysis by the Cabinet Office, working with the Charity Commission, the Department for Education and Welsh Assembly Government, these arrangements are considered to provide the most appropriate regulatory oversight of foundation and voluntary schools as charities, while keeping the burden of regulation to a minimum.
The third and final category is sixth-form college corporations. There are currently 94 sixth-form college corporations in England and none in Wales. They were created following amendments made to the Further and Higher Education Act 1992 by the Apprenticeships, Skills, Children and Learning Act 2009. It was always intended that they would be exempt charities, as this was the status of the institutions that became sixth-form college corporations in April 2010. For this reason, the commission has not required sixth-form college corporations to register.
As with foundation and voluntary schools, the Department for Education has an existing regulatory oversight role under education law. It is ideally placed to take on the principal regulator role, promoting compliance with charity law through existing procedures without additional regulatory requirements. The Charities Act 2006 (Changes in Exempt Charities) Order confers exempt status, as was intended from the outset, and the principal regulators regulations appoint the Secretary of State for Education as their principal regulator.
I should add that we also propose to appoint the Secretary of State for Education as principal regulator of certain exempt charities connected to academies and sixth-form colleges. This will have to be done separately by a negative procedure statutory instrument, as regrettably these charities were overlooked when the instruments before us were laid.
The duty imposed by the Charities Act 2006 on principal regulators of exempt charities is forward looking. This means that they are required only to promote compliance by the charity trustees with charity law obligations arising on or after, or ongoing on, the commencement date. Principal regulators will not be required to take action relating to matters which occur before the commencement date and in connection with which no charity law obligation is continuing at that date.
The Office for Civil Society and the Charity Commission have worked closely with the Department for Education, the YPLA and the Welsh Assembly Government on these proposals, and key representative bodies of the schools and colleges have been kept informed of progress. No significant concerns have been raised about the forthcoming changes or the instruments that will give effect to them.
For exempt charities under the principal regulator regime, there will be little, if any, noticeable impact on a day-to-day basis. They will continue, as now, under their existing regulatory regime, albeit with their regulator also promoting charity law compliance.
For academies and sixth-form colleges, the YPLA will continue to have a role. The principal regulator regulations make provision for this by amending the Apprenticeships, Skills, Children and Learning Act 2009 to enable the YPLA to assist, advise or provide information to the Secretary of State for Education as principal regulator. An impact is likely to be felt only when something goes badly wrong and the regulators need to intervene.
The Charity Commission is currently developing memoranda of understanding to formalise the details of the relationship between the principal regulators and the commission. It is also setting up a committee of principal regulators which will meet annually to share best practice.
The impact of the changes made by these instruments will be reviewed within three years of commencement. Although a statutory review of the 2006 Act will begin later this year and will include an evaluation of the changes made by the Act to exempt charities, this will be too soon to properly consider the impact of the changes made by these instruments.
These instruments will ensure that academies, foundation and voluntary schools and sixth-form colleges are regulated appropriately and effectively as charities but through existing oversight mechanisms to ensure that regulation is proportionate. I therefore commend this order to the Committee.
My Lords, I am grateful to my noble friend the Minister for that introduction. I broadly welcome the regulations. I have one specific, rather gritty point to put to her. I have given notice of it to her officials, so I hope that it may be possible for an answer to be available today. I have one general point on which I would be very interested in her response and then another general point which needs to be made in the light of the regulations.
I shall deal with the gritty point as quickly as I can. It arises out of the statutory instrument dealing with principal regulators. Regulation 7 introduces a new section, Section 71A, into the Apprenticeships, Skills, Children and Learning Act 2009. New subsection (1) gives a discretion to the Young People’s Learning Agency to provide the principal regulator, the Secretary of State, with information that he or she may need in order more effectively to carry out his or her duty as regulator. We have already heard today that the YPLA is likely to be replaced in not too long a time by the education funding agency. I hope that that does not mean that we shall need further amending legislation to substitute EFA for YPLA. But why only a discretion? Surely the YPLA should be under an obligation to provide assistance, information or advice to the principal regulator, so long as it is a reasonable request. The Minister might like to comment on that.
My first general observation relates to the particular character of a government department as a principal regulator. There is growing anxiety within the charity sector about the preservation of what is an absolutely fundamental characteristic of any charity: its independence. It is often not understood among the wider public that one of the bedrock guarantors of the integrity of each and every charity—however small or large it is, whether it has trustees appointed by outsiders or not, and whether it is funded from a particular source or not—is that it has absolute independence and responsibility for its own affairs. Its trustees have one sole purpose in life, which is to forward its charitable purposes to the best of their ability for the benefit of the public.
Having the Secretary of State for Education as the principal regulator is sure to involve conflicts of interest all along the way. Whatever Government are in power, they will have their own agenda. The voluntary sector is a very important part of the provision of education generally. The measure seems to warrant a little more thought. I do not for a moment propose to question the Secretary of State for Education being principal regulator in these statutory instruments, but the concern is germane and relevant. Perhaps the Minister will take back to the Government the need for some informal, internal consideration of the independence factor, as I call it.
I move on to my final point, which I hope Members of the Committee will think relevant to our deliberations. I wish to comment on the complexity of these statutory instruments. What I am about to say will not in any way reflect upon the quality and bona fides of the civil servants responsible for these instruments, because they do their level best, and it will not reflect on the calibre of the parliamentary draftsmen. I know from long engagement with them what an impossibly difficult task they have and how superbly, on the whole, they undertake it.
The second of these instruments—the one dealing with the definition of exempt charities—makes clear in a way that is rarely visible the fact that there was a cock-up. Is one allowed to use that term in Parliament?
There was a cock-up in prior legislation that led to the need for the second of these statutory instruments to confirm that sixth-form college corporations should have exempt status re-conferred on them. There is no question or doubt that their exempt status was removed from them unintentionally. I commend whoever wrote the helpful Explanatory Memorandum on the delicate language employed therein. It explains:
“Sixth form colleges which are charities had their exempt status removed by the ASCL Act. It is unclear whether this was intentional”.
Wonderfully clear it was not. I make this point not to make fun of those who were party to the error. The parties most responsible for it were in this place, because it is we who churn out, day in and day out, tidal waves of primary and secondary legislation. It is we who fail to scrutinise adequately that tidal wave, and it is we, therefore, who did not see when the ASCL Bill was introduced that by an unintentional side wind these sixth-form college corporations were deprived of their valuable exempt status. It seems as though they have been in a sort of ghostly limbo until now, but at least we are putting them out of their misery.
I wanted to raise this issue because it is not often that such a blatant example of the weight of interlocking legislation is clearly shown to be false in its outcomes. I put it to the Committee that charity law has become barbaric. Happily, when I started practising law, nine times out of 10, such matters would never darken the doors of a lawyer’s office, but those days are long gone. We are, even in these instruments, creating another web in which to catch the unwary, forcing the prudential into seeking expensive advice and generally making the voluntary sector a victim of our excessive endeavours.
My Lords, my noble friend Lord Phillips, from his lengthy experience in the charity field, has carried most of the points with him. I shall attempt to sweep up behind a little, if I may, and raise a couple of issues. Before doing so, I need to declare interests as president of the National Council for Voluntary Organisations and as chairman of the Armed Forces Charities Advisory Company.
I wanted to speak on this issue because, first, the concept of exempt charities is complex and their structure and rationale is not immediately apparent. Secondly, these exempt charities are of course educational charities, and it is around education and health, but particularly education, that the whole issue of public benefit and charitable status revolves in the case of private schools. Therefore, it is important that we give these instruments a proper degree of scrutiny.
One danger and one problem or issue that arose during the passage of the Academies Act was whether we had undermined the issue of presumption, because the Act merely stated that these institutions would be charitable, full stop. Having spent a great deal of time earlier removing presumption and making sure that all charities had to justify their public benefit status, it seemed strange and possibly dangerous that we would suddenly say that a group of charities—in this case, schools—was exempt. Therefore, the question of how they are going to be regulated and the nature of the regulator is important.
As for when the regulator takes over from the Charity Commission, originally the 2006 draft Bill suggested that exempt charities could only disappear. Originally, the Bill as drafted allowed only for exempt charities to be removed; the original concept was that they would finally fade out. However, some of us, including my noble friend Lord Phillips and I, decided that it would be better to have a two-way valve, not a one-way valve. Indeed, it is the two-way valve that is being used to create a new category of exempt charities.
When we examined some of the exempt charity regulators, there were some surprises, which have a read-across to this debate. The regulator for universities is the Higher Education Funding Council for England. It has always been surprising that that is the regulator because it has no charitable knowledge at all; it is merely a funding body. I shall come back to that again in connection with the proposals for the regulator and the Secretary of State in the current regulation. We have had some grave disappointments. Given that we were trying to create a proportionate regime, it was a shame that the MoD was not prepared to take on some of the requirements of the exempt regulation for Armed Forces charities, because there are many hundreds of them and they require a particular light touch.
On the upside, you can have light-touch and proportionate regulation focused on a particular group of exempt charities, but there is a down side, which is regulatory arbitrage. You can find ways to fall between the cracks of the regulatory regime, which is something that we have to be very careful about. As I understand it, there will be two principal regulators. One of them is the Secretary of State for Education—that is very clear, although there are some down sides that my noble friend has just mentioned—but in the Welsh situation the regulator is a “responsible person”, which is defined in Regulation 6(2). It means a person who,
“is or was … a Welsh Minister”,
“acting on behalf of the Welsh Ministers”,
“a member of a committee established by the Welsh Ministers”.
This is not an attack on the devolution process but it does mean that nobody is identified as the regulator for the Welsh educational institutions. I think that responsibility should lie with someone, or some defined body, and there is a danger here of having an amorphous and opaque nature of responsibility with regard to Welsh educational institutions.
On the question of memoranda of understanding, through which we can avoid regulatory arbitrage, I assume that there will be two—one with the English regulator, the Secretary of State, and one with the Welsh person. It will be interesting to know from my noble friend who that person will be in the light of the rather opaque drafting of the regulation. This will be the first time that we have had two regulators—one for England and one for Wales. As I look through the other exempt regulators, I see that DCMS regulates museums and galleries for both England and Wales. We are now dividing them for the first time and creating an interesting precedent.
I share the concerns that my noble friend Lord Phillips raised about role of the Secretary of State for Education in respect of England. This is a tiny part of his empire and can hardly have the attention that it might deserve. There is the issue of independence that my noble friend underlined, as well as the question of conflicts of interest that may arise in the future. I was quite attracted by the idea that the YPLA should be a regulator. If it is to be succeeded by the education funding agency, so be it. After all, if the Higher Education Funding Council is doing universities, why should the education funding agency not do this group of educational institutions? As the Explanatory Memorandum says:
“In practice, the YPLA (and its proposed successor the EFA) will carry out much of the necessary information gathering which would then be used to report to and advise the Secretary of State”?
Why not just have them carry out the role? It would be a good devolution of power. It would remove the role from the Secretary of State and avoid the conflicts of interest to which my noble friend referred.
In conclusion, I understand that these are technical questions. I am sorry that my technical e-mailing skills are not sufficient to have been able to get them to my noble friend in advance of this afternoon’s debate, but I think that they are important. In these stringent, difficult and suspicious times, we need to maintain the culture of the charity brand, especially in the field of education. Some precedents are being set here and we need to be careful that we are not doing something that we will later regret. I think that, in line with the Government’s overall policy, devolving power for regulation to the lowest possible level is appropriate, and therefore I do not quite see why the Secretary of State has to have a continuing role here. That seems to be centralising rather than devolving.
My Lords, I, too, am grateful to the Minister for introducing these orders. Of course, it is right to ensure that there is proportionate but effective oversight of charities under charity law while keeping the regulatory burden to the minimum necessary, but that regulation must be effective and ensure proper compliance with charity law. Therefore, I share the concerns of noble Lords who have spoken about the potential conflict of interest and perhaps the impact on the independence of charities if the Secretary of State is to be the regulator for so many of these institutions. I, too, think that again this is a demonstration of centralisation rather than enabling organisations to flourish, and that dismays me. I should be grateful for the Minister’s views but I also hope that the Government will reflect on potential conflicts of interest in relation to the Secretary of State’s role as regulator and his role as Secretary of State for Education.
I find no reference to free schools in the documents before us and I do not understand their status. Are they charities or not? I do not know. All academies are included. However, I do not know what the status of free schools is and I should be grateful for some clarification. If they are charities, who is the principal regulator?
In the Academies Act 2010, as the Minister said, it was agreed that a principal regulator would be required for academies and, as noble Lords have said, it was proposed that this should be the YPLA. Then along came the Public Bodies Bill and the aim to abolish the YPLA. Of course, the Bill is still in Committee in the House of Commons.
I have a few questions. First, is it not precipitate to appoint the Secretary of State for Education as the regulator when the YPLA has not yet been abolished? Like the noble Lord, Lord Hodgson, I wonder why the Education Funding Agency should not be the regulator rather than the Secretary of State. Secondly, the memoranda of understanding are clearly extremely important and I wonder whether Parliament will be able to see them before they are concluded.
My last question is a small one. The section relating to monitoring and review is a little perplexing. A review is supposed to commence later this year. However, this will be pretty worthless in relation to the regulator because the review of the 2006 Act is expected to follow shortly after the change is made by these regulations. Essentially, I am asking: why have two reviews? Why not have one review in three years’ time? That would obviate a lot of work that will go into reviewing in the mean time.
I am grateful for the extremely knowledgeable contributions of noble Lords this afternoon. I start by thanking my noble friends Lord Phillips and Lord Hodgson, and the noble Baroness, Lady Royall, for their warm welcome to these regulations. Many questions have been thrown at me; I shall try to respond to them in the order in which they were asked. I thank my noble friend Lord Phillips for prior notification of his questions. I passed his notes to the civil servants. I hope that, through my response, he will be reassured that we have taken his concerns seriously. I am pleased that my noble friend Lord Hodgson’s train arrived on time so that he was able to tease out of me further details of an extremely complex area of law.
In response to my noble friend Lord Phillips, the YPLA is fully committed to supporting the Secretary of State in his or her role as the principal regulator. The consultation went across all the agencies, all of which agreed that the Secretary of State would be ideally positioned to be the regulator. The YPLA has worked closely with the EFA, the Department for Education, the Cabinet Office and the Charity Commission on the development of the Secretary of State’s role as the principal regulator. Much of what the YPLA will do will be to support the Secretary of State as part of the existing day-to-day functions of the regulator. In practice, I am not sure that we should see the YPLA refusing any reasonable request from the Secretary of State for advice and information. I hope my noble friend is reassured that the YPLA, when it is replaced by the EFA, will continue to fulfil its role of supporting the Secretary of State.
I come to independence, on which I think my noble friend is about to challenge me.
Since this is a legal and technical matter, perhaps I could write to my noble friend. I know that such words can change the law very quickly, and I shall not be drawn into that trap by my noble friend today.
On the issue of independence, both the Charity Commission and the Cabinet Office are satisfied that the appointment of the Secretary of State for Education and the Welsh Minister as principal regulators will not give rise to an inherent conflict of interest. The commission and the principal regulator will work together to ensure that a charity’s independence is maintained. The functioning roles already have accountability. There is no conflict, since assurance is largely derived from the funding function and both roles require similar levels of assurance.
We all accept that the law on exempt charities is an incredibly complex area with a complex history. More than anybody else in this Committee, my noble friend is aware of the difficulties that this law raises. I accept that we would rather be in a better position, but we are where we are and it is difficult to unpick some of the complexities. As a result, we should go for a simpler legal regulatory framework for exempt charities. It has always been intended for exempt charities to be exempt. When the ASCL Bill was enacted, it was agreed that this would be done through exempt-charity SIs. That is what these instruments do.
My noble friend Lord Hodgson spoke on the MOUs. Principal regulators are not expected to be experts in charity law. It is not their job to be, nor is it their duty to promote charity law unless charity law compliance requires it. Expertise in charity law lies with the Charity Commission. That is why the commission has investigation and enforcement powers in relation to exempt charities.
My noble friend also asked why the Education Funding Agency is not the regulator. As I said to my noble friend Lord Phillips, the EFA will be an agency of the Secretary of State. It will not have a separate legal personality, so it cannot be appointed as the principal regulator.
I have been told by my experts behind me that it will be shortly afterwards.
The noble Baroness, Lady Royall, reminded us of the effectiveness of the regulators. The principal regulator approach will not mean less effective regulation. It will be entirely valid to use different models of regulation to fit the circumstances so that we end up with smarter regulation that maintains trust and confidence in charities. Using an existing regulator’s processes and procedures to oversee charity compliance avoids costly and wasteful duplication.
The noble Baroness asked also about free schools. Free schools are a type of academy. They are charities in the same way as other academies. She asked also about the MOUs between the Charity Commission and principal regulators. MOUs will be published on the Charity Commission website. We are happy to deposit copies in the House Library.
I suspect that I have not given satisfactory answers to my noble friends who are experts in this area. I hope that they can be assured that I will provide written responses to questions to which they feel they have not answers.
The regulations are about making the system leaner and smarter. I therefore commend them to the House.
Charities Act 2006 (Changes in Exempt Charities) Order 2011
Considered in Grand Committee
Distribution of Dormant Account Money (Apportionment) Order 2011
Considered in Grand Committee
My Lords, this apportionment order marks the culmination of a long process to do something useful with dormant account money. The Dormant Bank and Building Society Accounts Act 2008 created the legislative framework required to use this money for the good of society while protecting the rights of account holders. In line with the original Act and in consultation with the Big Lottery Fund, which is the designated distributor of dormant accounts money, England, Scotland, Wales and Northern Ireland are all determining their own spending priorities for it. As the Prime Minister announced in July of last year, England’s portion will be used to set up a big society bank.
Current estimates suggest that there is about £400 million of eligible dormant accounts in the UK. Some of this will be kept back to meet claims from customers, as is right and proper. However, the Reclaim Fund estimates that between £60 million to and £100 million will be released for public spending over the course of the first year. Subsequent releases will be made according to the rate of reclaim.
This order sets out how the money available for public spending will be apportioned between England and the devolved Administrations. In accordance with communications at the time of the original Act in 2008, the order divides the money on a per capita basis; in other words, in line with the Barnett formula. Based on the latest population estimates by the Office for National Statistics, the percentages are as follows: England, 83.9 per cent; Scotland, 8.4 per cent; Wales, 4.9 per cent; and Northern Ireland 2.8 per cent. While the application of the Barnett formula to the apportionment of dormant account money is in line with previous expectations, the decision to use the formula was made only after a period of consultations with the devolved Administrations, as required by the Act.
Following the passage of the transfer of functions order on 31 January, the Minister for the Cabinet Office had responsibility for leading this process. Prior to the formal consultations, Cabinet Office officials informed officials in the devolved Administrations and territorial offices of the Government’s intention to use the Barnett formula, thereby preparing the way for the ministerial process.
The formal consultation process was conducted through an exchange of letters between the Minister for the Cabinet Office and his ministerial counterparts in the devolved Administrations during March and April. A number of concerns were raised about the use of the Barnett formula, principally revolving around the established criticisms that the formula is outdated and does not take into account the varying needs across the constituent countries of the UK. I can assure noble Lords that we have considered these concerns very carefully. However, based on advice from the Treasury and in line with normal devolved spending, we maintain that the formula remains the most transparent, robust and sustainable method of apportionment. This judgment was communicated to the devolved Administrations in letters from the Minister for the Cabinet Office on 6 April, thereby formally ending the consultation process.
While keeping within the constraints of the parliamentary timetable, we have been keen to ensure that the apportionment order is passed as soon as possible so that the dormant account money can be put to good use as soon as the first tranche becomes available later in the summer. While England’s portion will be used to establish a big society bank, which will help build a social investment market and broaden the finance options open to civil society organisations, with the passing of this order, Scotland, Wales and Northern Ireland will be able to use their portions to fund their own social and environmental programmes. I therefore commend the order to the Committee. I beg to move.
My Lords, I have a long-standing interest in the question of dormant bank accounts. Indeed, at one stage I was an arbitrator on the claims resolution tribunal for dormant accounts in Switzerland.
I have only one or two points to make on the order, the first of which concerns the question of distribution. As the Minister said, there were considerable discussions on this issue. She said that in the course of the discussions the devolved Administrations argued that the allocation of the money should be changed and that it should be distributed in relation to the various needs of the devolved areas, whereas the very good and helpful brief states that it does not take into account need. It is not the same thing. “Need” implies that certain groups of people have a need for money as against the overall allocation—which, presumably, will happen in the course of normal government decisions.
In all events, could the Minister say what evidence the devolved Administrations produced to argue that it ought to be done on the basis of need? Whatever one thinks about the Barnett formula—and many views have been expressed about it, not least by the noble Lord, Lord Barnett—I have come to the conclusion of the Treasury that this is probably right way of doing it.
The second point, which is interesting, is that this money is normally going to go, as I understand it, to the Big Lottery Fund. The money going to the devolved Administrations—I presume, the Minister will correct me if I am wrong—will be allocated by the fund. However there is also an intriguing passage in the Explanatory Memorandum, which states:
“With the Prime Minister’s announcement on 19 July 2010, England’s portion is committed to setting up a Big Society Bank, which will be a social investment wholesaler”.
I am not at all clear what a “social investment wholesaler” is—perhaps the Minister could clarify that. But in all events it looks as though England will have its chunk allocated to the big society bank, whereas the other devolved Administrations will not.
I understand and support the idea of a big society bank, and the idea of the big society, which the Prime Minister is understandably so enthusiastic about. But if that is so, why has an apparently arbitrary decision been taken, which I do not think is reflected at all in any of the legislation, that England’s portion shall go to the big society bank, rather than any of the other uses which the lottery fund might have used it for?
Although we have a Big Lottery Fund which is responsible for making this kind of decision, it is apparently to be overruled in this case by the Prime Minister’s statement. I am not the least bit clear what the financial and legislative basis is for his decision to overrule that, and why—instead of the normal process of going through the Big Lottery Fund—we suddenly find it is to be done by a big society bank. No doubt that has not been set up yet. I presume there will be some delay, whereas if it went straight to the Big Lottery Fund, the money would be allocated immediately, or at least much sooner than it would under the arrangements set out in the Explanatory Memorandum. I would be most grateful if the Minister could clarify those particular points.
My Lords, my noble friend Lord Higgins has raised a number of the points which I would otherwise have raised, but we wish to reinforce his inquiries. I note that the money is being handled in Scotland, Wales and Northern Ireland by the Big Lottery Fund. What prioritisation, if any, is being indicated by the Governments of the countries to which power has been devolved? What relationship is there between the views of the Governments in these countries and the Big Lottery Fund? Will it be open to them to seek to influence the judgment of what is apparently being described as money for the public sector? It is to my mind rather odd that no public consultations were deemed necessary to consider this matter, or other matters related to the distribution of the dormant account moneys, since the amount is not negligible. I would be very interested to know if—in the course of the discussions about how the money might be divided up—any representations were made by the devolved Governments about how the money ought to be spent. Were they content with the proposal that it should be left to the discretion of the Big Lottery Fund?
So far as the reliance upon the Barnett formula is concerned, there have been many occasions—some recently in our House—when the limitations of the formula have been considered. Perhaps this is not the occasion to reopen that question, but it is a little disappointing that we have received an indication that the Barnett formula is considered to be the best method of financing the Governments of the devolved countries, without any indication that any sort of inquiry has been made by the Government.
It appears that some interesting suggestions have been canvassed by experts in this area. I draw attention in particular to the views of Professor Iain McLean of Nuffield College, Oxford, on how other countries tackle this problem. He drew attention to the example of how the Australian provinces meet to decide these issues. The time has come at least to put in hand significant research, because there is a widespread perception that the Barnett formula’s outcomes are not just inequitable. However, it would be a mistake, on the back of this order, to carry that out as far as it has been carried out in other forums.
The question of the amounts of money available is of great interest, and I am happy to have heard from my noble friend that the sums anticipated for this year are in the order of between £60 million and £100 million. Have any assessments been made as to whether those sums will be a one-off, or whether they will continue and, if so, at what level? I realise that that is a difficult issue to hypothesise about, but if any work has been done, it would be interesting if it could be shared with the Committee. I am grateful to my noble friend for what she has said.
My Lords, I, too, am grateful to the Minister for her introduction. I certainly support the order and I am glad that the money will be distributed. I recognise that now is not the time to discuss how the dormant accounts money is to be spent, nor is it the time to have a discussion about the big society bank. However, I have reservations about the big society bank because, while I believe that it will help some people and organisations, it is a very small answer to the problems that they will encounter as a result of cuts in local authority services.
The noble Lord, Lord Maclennan, asked whether the noble Baroness thought that the £60 million to £100 million that it is estimated will come from dormant bank accounts this year will be a one-off, or if such an amount of money can go into the big society bank every year. If it is a one-off, my concern about the viability of the big society bank is exacerbated because, if there is to be a bank that will really fulfil what is likely to be an important role in supporting charities and civil society, it has to be more sustainable than something that will get possibly £60 million next year—or possibly not. Who knows? That raises some concerns.
I hear what the noble Baroness says about the Barnett formula. Discussions have taken place on whether or not there are other options and, clearly, the decision has been taken and has come down in favour of the Barnett formula. It would be interesting to know what discussions have taken place, and with whom, in order to reach that decision. I am concerned about its specific impact on Wales because it is widely recognised that Wales tends to lose out as a consequence of the Barnett formula.
As I said, I am glad that the money is to be distributed and welcome the order. However, it raises profound concerns which must be addressed, if not today then in the future.
I thank my noble friends and the noble Baroness, Lady Royall, for their broad warm welcome for the order. I expected the order to raise questions, on some of which, I am afraid, I shall have to write to noble Lords.
My noble friends Lord Higgins and Lord Oakeshott raised concerns around the use of the Barnett formula and asked why not other formulas. It was found that the Barnett formula was the most robust way of allocating the money. The Big Lottery Fund’s way of distribution is not a government formula and therefore does not have a wider standing beyond the distribution of lottery funds. The Government recognise that concerns have been expressed about the system of devolved funding; however, their position remains that the priority is to reduce the budget deficit and that any decision to change the current system must await the stabilisation of public finances. However, we have to find an alternative and, until we do, noble Lords will have to accept that the Barnett formula has its strengths.
My noble friend Lord Higgins asked about the term “social investment wholesaler”. The big society bank will be a social investment wholesaler. It is a term used in dormant accounts legislation and is one of three areas where English dormant accounts can be spent. The other two are youth provision and financial inclusion and capability.
My noble friend Lord Clement-Jones asked about public consultation on the distribution of dormant accounts. The Government carried out a public consultation on how the English portion of the dormant accounts should be spent prior to the 2008 Act. As a result, the dormant accounts Act allows the English portion to be used for youth provision, financial inclusion and capability or a social investment wholesaler.
I was asked about the monies going into the big society bank and whether this would be a one-off. We have £60 million to £100 million that we are going to allocate. However, there is a reclaim fund and we need to see how much of that is drawn on. Of course, if money is then still left, it is only right and fair that it is put to positive and good use through the big society bank so that people and smaller organisations can draw on it. The decision will, of course, be made after the independent reclaim fund has looked at how the progress of reclaim has worked.
The questions that were asked today centred basically around confidence in ensuring that the monies reach the right people and that we are making the best use of the dormant accounts. I think there is agreement over the framework that we are using, which was passed in 2008. Since taking office, the Government have worked hard, taking the necessary steps to make sure that money from dormant accounts made available for public spending is put to good use as soon as possible. A reclaim fund has been established by Co-operative Financial Services and authorised by the FSA. As I have indicated from the outset, the estimated £60 million to £100 million from dormant accounts will be released by the fund over the first year. It is imperative that we are able to spend this money as soon as possible.
In taking the decision, the Government have considered thoroughly some of the concerns that noble Lords have raised today. I stress to the Committee that we understand that there are criticisms of the formula we are using. However, it has proved to be currently the most transparent and easily understood formula of all those that are around. I hope noble Lords will be satisfied. I know I have not been able to respond to all questions but I undertake to ensure that all noble Lords are written to. On that basis, I commend the order to the Committee.
My Lords, I should like to seek a little further clarification. I stress that I am, despite all its imperfections, in favour of the use of the Barnett formula for the allocation of funds between different parts of the United Kingdom. However, that does not solve the problem of which formula is being used to distribute the money, as against distributing it between the regions. I am anxious to save my noble friend unnecessary correspondence. Why, instead of the normal procedure being used—whereby the money for each of the regions goes into the Big Lottery Fund—is the money suddenly being siphoned off into the big society bank? Apparently this is not happening in the regions, although one would have thought that the big society was a UK-wide concept. Why do we suddenly find the allocation of resources—apparently contrary to the Act, although I might be wrong about that—being left to the big society bank, rather than to the existing arrangements set out in legislation? Alternatively, why is it not all going to the big society bank? How do the criteria for these two bodies differ?
My noble friend of course wants far more detailed clarification than I am about to give him. I undertake to ensure that such clarification is passed to all Members. However, the devolved Assemblies and authorities can make orders to restrict the kind of purposes and people to which money from dormant accounts may be distributed. That comes under Sections 19 to 21 of the Dormant Bank and Building Society Accounts Act 2008; some safeguards are already in place. However, I completely understand my noble friend’s concern. Therefore, to ensure further clarity, I would rather undertake to write and give a much fuller explanation that will, I hope, satisfy him.
My Lords, I am afraid that an exchange of correspondence does not clarify something in the same way as having it dealt with on the Floor of the House. Can I be clear? What is the financial basis of the Prime Minister’s statement, allocating this money to the other fund, rather than to the Big Lottery Fund?
As I said earlier to noble Lords, the Prime Minister has made it clear that for him the priority in England is to be able to set up the big society bank to ensure that dormant accounts are used for the needs of organisations in England. My noble friend is now querying the needs of the devolved Assemblies. However, I would give justice to my noble friend only if I could write to him and to other noble Lords because I would not want to have something misread or misheard in giving clarification. I may be able to do so now but, then again, I may not.
Under the Dormant Bank and Building Society Accounts Act 2008, following the transfer of functions order the Minister for the Cabinet Office must give directions to the Big Lottery Fund on how the English portion should be spent. I am not quite sure that that will satisfy my noble friend and therefore I continue to say that I shall write to noble Lords.
Ministerial and other Salaries Act 1975 (Amendment) Order 2011
Considered in Grand Committee
My Lords, this is an order that my right honourable friend the Prime Minister has specifically requested to formalise in legislation the coalition Government’s policy on ministerial salaries, as announced on 13 May last year. The order was laid before Parliament on 21 March and agreed to in the Delegated Legislation Committee in another place on 21 June.
The order, which is intended to remain in force for the lifetime of this Parliament, will ensure that ministerial and other officeholder salaries are reduced in legislation as they have been reduced in practice since the coalition Government took office. The salaries and offices affected are specified in the amendment order and these salaries cannot be at any other rate during this Parliament without further amendments to the legislation. Lords Ministers can be assured that their salaries will remain as listed in the order until the Dissolution of Parliament.
The Government’s policy is that Ministers’ total remuneration is 5 per cent less than that claimed by equivalent Ministers in the former Government. In the case of Lords Ministers, “total remuneration” in the context of the order simply refers to their ministerial salary. For Commons Ministers, it refers specifically to ministerial and MPs’ pay taken together, with the reduction then applied solely to the ministerial salary element. Since entering office, therefore, Ministers have waived their entitlement to receive a full ministerial salary and have been receiving a reduced salary ever since.
The order also ensures that ministerial and other officeholder pension contributions and future accruals are brought into line with the reduced ministerial salary levels. Currently, Ministers and other officeholders receive reduced salaries but, because of the rules governing ministerial pensions, their contributions have to remain based on their entitled level of salary as set by the Ministerial and other Salaries Act 1975 as it stands. This has meant that departments have had to make up the shortfall in pension contributions between the reduced and the entitled levels of salary for Ministers and officeholders. The amending order will eliminate the need for departments to do this and will save the Government approximately £100,000 per year.
As I mentioned, ministerial and other officeholders’ salaries are currently governed by the Ministerial and other Salaries Act 1975, as amended. The salaries of all Ministers, the Speaker in each House and the six paid opposition officeholders fall under the remit of this Act. These individuals have been informed of this order and the changes that it will make to the Act. Currently, increases to ministerial salaries are linked to the average increase in the mid-points of the senior Civil Service pay bands. This order will effectively nullify the link during this Parliament but it will apply again after the Dissolution of Parliament.
I should point out that over several years ministerial salaries have not, in practice, remained in line with the legislation. Since 2008, Ministers in the former Government had waived any entitlement to increases in their salary. This order will therefore bridge the gap that has grown between the legislation and what is happening on the ground. Given the Government’s policy on a Civil Service and wider public sector pay freeze, it is right that Ministers show leadership during this time of financial constraint. Since taking office, this Government have saved around £700,000 on Ministers’ pay. Over a full five years, this will represent a £4 million saving. I commend the order to the Committee.
My Lords, I welcome the opportunity that the laying of this order gives to enable some scrutiny of the policy lying behind it.
The practice of making alterations to the levels of ministerial salaries is not new, and particular aspects of this order are worthy of consideration. It is perhaps remarkable that since 1975 there have been 30 previous examples of alterations to ministerial salaries. My noble friend the Minister has made it clear that to some extent this is, on this occasion, gesture politics. It is about signalling to those in the public sector that Ministers are also bearing some of the brunt of the financial situation that the country is in. It has to be said, however, that the savings to which my noble friend has referred are rather minuscule. It might reasonably be inquired as to whether such savings might have been better made by reducing the total number of Ministers, which seems inexorably to have increased over the past 100 years—notwithstanding the devolution of power and the apparent commitment of the present Government to decentralise power further. There has been no shedding of Ministers to accommodate that philosophy.
I wonder whether the setting of an example by Ministers will be regarded by those in the public sector as amounting to anything more than a row of beans, in the light of the fact that large cuts in the public sector are being made among civil servants and public authorities around the country. If savings of public funding can be made at that level, some thought ought to have been given to saving at the top in Whitehall. The question arises of why the Government have taken an inflexible view to this order, which does not match or mirror what has happened in the past? Circumstances change, and it is to be hoped that they will change within the lifetime of this Parliament. To set these proposals in stone, as apparently the Prime Minister has decided to do, does not seem to be a pragmatic approach to ministerial pay.
From the point of view of clarification, I should be interested to know what the true position is concerning the changes in the pension arrangements. My understanding is that this is not intended to be retrospective in its effect and that the raising of the contributions will take effect only when the order comes into force. I should be most grateful for my noble friend’s comments on some of these points.
My Lords, I am most grateful to the Minister for telling the Committee that there has been a £700,000 saving in ministerial salaries. However, does that take into account those Ministers, Whips and Members of the Front Bench who do not receive a salary? I should be interested to know how many Members on the Front Bench in this House and the other place are not in receipt of a salary. If they are not, do they accrue any form of pension benefit? I think that the Ministers in this House do a grand job—the same as when the noble Baroness, Lady Royall, was in power—and they are not paid nearly enough. I look forward to hearing what my noble friend has to say.
My Lords, I declare an interest as being in receipt of a ministerial or other salary. I have been for some time and I am very grateful to the Government.
I am also very grateful to the Minister for pointing out that the previous Government also had a policy of not increasing salaries. Of course, I am attracted—I would be, wouldn’t I?—by the idea from the noble Lord, Lord Maclennan, that, rather than reduce ministerial salaries, there should be a reduction in Ministers. I jest but I believe now, as I did when we were in government, that there are too many Ministers. I do not think that that should have an impact on salaries but I firmly believe that there are too many Ministers—in the other place, of course—although Ministers work phenomenally hard.
I am not sure what the noble Earl was getting at but I think that it is wrong in principle for there to be unpaid Ministers. A Minister is a Minister; they do a fantastic job and should be paid accordingly.
Of course, when everyone in the whole country is having to tighten their belts, it is right that those in receipt of ministerial salaries should do likewise. Resources are limited and we have to take our share of the pain. Although I would strenuously argue that the cuts to our public services in general are too deep and being made too fast, I do not think that that is the case in relation to ministerial salaries. The Prime Minister was correct when he acted as a sort of catalyst for this legislation.
Again, I start by thanking my noble friends and the noble Baroness for their broadly warm welcome for the order and for their questions about ministerial salaries. I should like to start by responding to the point made by my noble friend Lord Maclennan—whose name, I hope, I have got right this time—about it being gesture politics. The fact is that we need to show that we in government are prepared to take some of the bites that are going to affect every single citizen because of the financial difficulties that this country is in. I want to resist saying that it is gesture politics: we have a duty to show that we are willing to take some of the pain. It may not look as though it is a lot of the pain but those of us who work incredibly hard feel that it is only right that we all share in it, and the previous Government did the same.
I should also like to thank my noble friend for his kind words. Ministers in both this House and another place work very hard and often with gruelling hours on subjects that we have to get our minds around very quickly, as is the case today. This is not my normal remit—and I think that is true of the noble Baroness, too.
There are 13 unpaid Ministers in government, three in the Commons and 10 in the Lords. The former Administration had the same number of unpaid Ministers before leaving office, with nine from the Commons and four from the Lords. The Government believe that the number of Ministers should be dictated by need, and on this basis have carefully considered all the appointments that they have made. Because of the nature of the coalition Government and the challenge of delivering the programme for government, the Prime Minister did not think that it was possible to reduce significantly the number of Ministers at this time. However, the Government have reduced the number of Ministers who regularly attend meetings of the Cabinet. I hope that has answered my noble friend’s question.
Perhaps I did not explain well enough the point that I was really making. The Minister said that at the other end there are three Ministers not in receipt of a salary, and 10 noble friends at this end. At least down the other end they receive a parliamentary salary.
My Lords, I enter into territory that is way over my pay grade, and the safest option for me is now for me to retreat into a safer area. I shall respond to the question about pension contributions. It is correct that these measures are not retrospective; salaries in the amendment order come into effect when the order comes into force. On the question of unpaid Ministers who might be in receipt of pensions—no, it deals only with salaried Ministers. Unpaid Ministers are not entitled to a pension under the parliamentary pension scheme.
I am not getting much more inspiration from behind me on any further questions, so I undertake to write to noble Lords on any questions that have not been answered.
Communications Act 2003 (Maximum Penalty for Contravention of Information Requirements) Order 2011
Considered in Grand Committee.
That the Grand Committee do report to the House that it has considered the Communications Act 2003 (Maximum Penalty for Contravention of Information Requirements) Order 2011
Relevant documents: 23rd Report from the Joint Committee on Statutory Instruments
My Lords, telecommunications are a vital part of the UK economy, worth over £35 billion in GDP alone. Perhaps more significantly, they help to underpin our online and internet economy—the largest per capita ICT market in the world and the driver of innovation and growth in the UK. It is absolutely critical that in this fast-moving and dynamic sector we have the necessary regulatory framework capable of keeping pace with market developments and technological change. This is why the Government have implemented the European framework on electronic communications. Those changes became law on 26 May this year. The changes to the framework are, first, good for business, which will benefit from the improved regulatory framework to encourage investment, and, secondly, they will provide greater competition and innovation among electronic communications providers. They will be beneficial, too, for consumers, who will gain from access to higher-quality and lower-cost communications services. Benefits for the former will include improved, reasonably priced choice of supplier and contract terms. For the latter, they will include strengthened rights on privacy and confidentiality, with faster switching processes and improved accessibility.
The UK approach to implementation has been light touch and has the support of business. It has been informed by a comprehensive and open dialogue with the people concerned, as well as a determination to avoid all over-regulation.
The framework contained a number of amendments granting new powers to Ofcom, the independent regulator. The powers will make certain that Ofcom has the appropriate tools to carry out its statutory functions effectively. These functions include the ability to make regulatory decisions on the markets. In order to make them effective, Ofcom needs access to information held by communications providers.
If the providers do not comply with information requests, it will hinder Ofcom in fulfilling its duty as the communications regulator. This could prevent Ofcom making informed decisions relating to remedy of the market and consumer protection. This could have detrimental impacts on both the communication markets and the consumer.
Amendments to Article 10(3) of the authorisation directive as well as to Article 21a of the revised framework directive require that Ofcom be able to levy dissuasive financial sanctions for most breaches of the regulatory obligations, including its information-gathering powers under Sections 135, 136 and 191 of the Communications Act 2003. Ofcom already has powers to impose financial penalties for breaches of these provisions, but the current limit for such penalties is only £50,000. Having reviewed the maximum level of the penalty, the Government no longer believe that this level of penalty is sufficiently dissuasive to prevent non-compliance with information-gathering requests.
The Government see the ability to levy an increased penalty for failure to comply with an information request as key to making certain that Ofcom has the necessary information available to make effective and correct regulatory decisions. Recent changes to the Ofcom enforcement regime in relation to silent calls raised the maximum level of penalty that Ofcom can levy for breaches from £50,000 to £2 million. This amendment to the Communications Act 2003 will mirror that increase in the maximum level of penalty in respect of non-compliance with requests from Ofcom for information. Other financial penalties in the Communications Act have been increased, too, to sums above the current penalty. For example, there will now be no financial advantage to companies refusing to answer an information request and taking a £50,000 penalty, as the maximum level of penalty will be £2 million. The use of this power by Ofcom must be appropriate and proportionate to the breach of the information-gathering powers under the relevant sections of the Act. The Government are clear that the UK has no discretion on the implementation of these provisions. We must therefore provide for dissuasive penalties, as they are the law and are required by the European directive.
The Government consulted on a change to the level of penalty as part of our wider consultation last year on the implementation of amendments to the European framework for electronic communications. Respondents from across both the telecommunications sector and the consumer rights groups were broadly supportive of this proposal. They recognised that it is of fundamental importance to the conduct of Ofcom’s regulatory functions under the framework that it is able to gather whatever information it needs.
Respondents also agreed that it is important that Ofcom is able to levy dissuasive penalties, particularly on those operating short-term scams where the potential gains can exceed the amount of the fine. The people concerned also struck a cautionary note, arguing that, given the high level of the potential fine, its levy should be proportionate to the type of breach of the information requests. I am pleased to say that this is recognised in our approach.
The Government are aware, however, that not all the people concerned agreed with the proposed increase in the level of sanction. Some suggested that the current level of penalty for failure to comply is already dissuasive and claimed that there is little evidence that companies are not complying with information requests.
The Government have looked long and hard at the level of the sanctions available to Ofcom under its information-gathering powers. We have worked closely with the regulator, Ofcom, to analyse and test its powers, including its current enforcement powers. We firmly believe that Ofcom’s enforcement powers in relation to the information-gathering requests made under Sections 135, 136 and 191 of the Communications Act 2003 are not equivalent to the other enforcement powers available to Ofcom and are not genuinely dissuasive. Therefore, we will increase the level of fine that Ofcom can levy for failure to comply with an information-gathering request up to a maximum of £2 million.
This will be done for the following reasons. First, the Government are aware that some communications providers have refused to comply with an information request or have provided inaccurate information on a number of occurrences during the years 2009 and 2010. Some respondents claimed that the current level of sanction available to Ofcom was already sufficiently dissuasive. The Government, however, have seen evidence that suggests that there is a lack of deterrent effect in the current regime. This means that businesses can, and do, take the risk of not providing accurate information as requested or providing any information. Potentially, therefore, they gain financial and other business advantages through the delay, and even the avoidance, of the full effect of Ofcom’s enforcement powers under the Act. This in turn can have significant detrimental impacts on both markets and consumer protections.
Secondly, non-compliance or delayed compliance with information requests under Sections 135, 136 and 191 of the Communications Act 2003 hinders Ofcom in fulfilling its duty as regulator. We see the ability to levy an increased level of penalty for failure to comply with an information request as key to making certain that Ofcom has the necessary information available to make effective and correct regulatory decisions.
Thirdly, increases in the level of sanction in other areas—for instance, silent calls—could provide communications providers with an incentive to refuse to respond to an information request and face a penalty of a maximum of £50,000 rather than answer the request, demonstrate a breach of other regulatory burdens and risk a far higher penalty.
Fourthly, the penalty will apply only to those who do not comply properly with Ofcom’s information requests. Two million pounds is the maximum level of fine that Ofcom will be able to levy, and the penalty imposed in any specific case must be, as I said, proportionate to the breach.
Her Majesty’s Government believe that this order is a necessary and important change to the powers of the regulator, Ofcom. This change will help to make certain that Ofcom is able to make fully informed decisions on the market it regulates; this can only be good for business and good for consumers. Therefore I commend this order to the Committee.
My Lords, I understand the purpose of this order; the reasons for it were very cogently set out by my noble friend. European directives in the telecoms area have been extremely important in making sure that we have a level playing field in telecommunications across Europe. I doubt anybody would deny that the European framework is extremely important. However, this is only one part of the implementation of the changes to the European framework of directives. The question that occurs to me is: why are we not dealing with all the other aspects of the changes at the same time? One could then see the full context in which those changes are being made. I wonder whether I may have missed three statutory instruments this month, which is easily done, especially in this House. I may not have missed them—they may be coming down the track—but it would seem convenient for us to deal with them and this rather draconian order at the same time. The impact assessment that comes with the Explanatory Memorandum deals with the whole slew of other changes being made to the European framework and the other five directives that are part of it. Therefore, it would have been convenient to deal with them at the same time.
As the Minister says, the consultation broadly supported raising the level of the sanction to £2 million. However, “dissuasive” is, on the face of it, quite a subjective word. I wonder whether the Minister could define “dissuasive”—a word she used three or four times in the course of her excellent introduction. For instance, what is dissuasive about a penalty of £2 million as opposed to £1 million? I wonder whether this is less of a legal definition and more of a value judgment. I am perfectly okay with it being a value judgment, but we need to accept that it is and that it is a judgment made by the Government, who are not really objective in the circumstances.
I fully understand the nature of the changes being made to the authorisation directive in terms of specific sanction. However, I find parts of the impact assessment confusing. Looking at the impact assessment that deals with the authorisation directive, policy option 1 is:
“Implementation of the Authorisation Directive—articles for which there are no options in implementation”.
Then we move swiftly on to policy option 2, which is:
“Preferred implementation of the Authorisation Directive—articles for which there are options in implementation”.
Which option have we chosen? It is not clear to me from this impact assessment which option we have chosen. I assume that we have chosen policy option 2, but there was no explanation of that in the Minister’s introduction. It would be extremely valuable if she could explain which of the policy options has been adopted. Indeed, perhaps I was not even looking at the right impact assessment; that is always a possibility.
My Lords, my intervention on this will be very brief. I echo my noble friend’s comments about the Minister’s excellent introduction. I should like the Minister to give us a little more clarity, if possible, on the consultation outcome. The rise from £50,000 to a maximum of £2 million, based on a value judgment, is large. Descending on the £2 million is the issue that I shall focus on. Could the Minister, in replying, let us know a little more about the level of response to the consultation exercise which was supportive of the figure of £2 million? The Explanatory Note includes a breakdown of small groups and groups that took different views, but I should be grateful if the Minister could tell us whether there was overwhelming or significant majority support for the proposal that she has brought to the Committee today.
My Lords, I, too, welcome the Minister’s introduction, which was extremely fulsome and interesting. Like other noble Lords who have spoken, I understand and broadly welcome the objectives of the order. However, I, too, have a number of points that I want to draw out and the Minister to respond to when she is able to do so.
We understand that the need for the order is the EU directive and the requirement to implement the better regulation directive. The Minister said that she had no discretion on that, but there is quite a lot of discretion within the directive because it does not specify a figure of £2 million, as has already been mentioned by the noble Lord, Lord Clement-Jones. It is a ministerial decision that this is the way to be “appropriate”, “effective” and “dissuasive”—the terminology used. Is it appropriate? Will it be effective? Will the net effect be dissuasive? That point came through in earlier speeches and I shall be interested to hear the Minister’s response.
As far as we can tell, Ministers have judged that £50,000 in fines is not dissuasive. Whichever way we read the impact statement—it was rather a heavy read—the evidence may support that level of penalty as regards certain companies, and certainly for those where the returns are much greater than £50,000 for an alleged breach of not providing the information. However, is it really appropriate to increase fines by 40 per cent in order to remedy a lack of provision of information? It is not exactly on the same scale as the examples given by the Minister. The only real example that I could find was where companies were undertaking short-term scams, although it was not clear what those were—perhaps we could have a discussion about them in the response—or what sort of returns there were on them. If they were that profitable, I should like to know more about them.
To explain, we are not really against the order but there are some questions. Is £2 million the right figure? The argument that it is the same figure that they have used in other places is not sufficient. We need to know more about what the £2 million does in terms of dissuasion and whether it is indeed appropriate and effective. Has consideration been given to another penalty? We were given one option, which was discussed, but it would not be difficult to think of a more dissuasive penalty in a situation whereby, as a result of the lack of the provision of information, the company concerned gained significantly in its trading activities. It is quite hard to see what that would be, but let us assume that that is the case. If the company made a significant profit as a result, perhaps the appropriate and dissuasive penalty would be the removal of that gain.
The potential impact on a smaller company certainly came through in some of the responses but has not really been picked up on. Many companies in this field do not have profits greater than £50,000 per year. To be fined at the level of £2 million is an awesome thought.
We were told that there was a large consultation but I agree with noble Lords that the information about who was actually consulted is not available. We were told that the responses were broadly supportive but we were unable to identify—certainly by size or by range—what those companies were. On reading the impact statement, it seems that the evidence used was only the 11 cases that have been considered by Ofcom since 2005, of which three were multiple occurrences. So we are talking about only eight different cases, which seems to be quite a small sample on which to base such a draconian increase.
In making a judgment that this measure is appropriate and proportionate, the Government are acting as both judge and jury. I am not sure that that is the right way to approach this. I would have liked to have seen more quantitative evidence in the impact statement.
The comment made in some of the paperwork is that as a result of this change there may well be an increase in the number of appeals made against such fines. That will obviously cost and it may be that the overall effect is not significant. In her summation, the Minister said that this would be good for business and good for consumers. I am not sure. This is more likely to be another example of gold-plating what is required by the EU directive, which is aimed at providing only appropriate, effective and dissuasive powers. It is not a fixed amount. It is perhaps not so much gold-plating but platinum-plating. It is hardly a light touch; rather, it is a heavy plundering.
My Lords, this has been a constructive small debate, and I am very grateful to noble Lords who have contributed. The change that I have outlined today will raise the level of penalty that the independent regulator, Ofcom, is able to levy for a breach of its information-gathering requests from £50,000 to £2 million. It is a necessary and welcome part of the United Kingdom’s implementation of the European framework on electronic communications. As in any fast-moving and dynamic sector, it is vital that the regulator is able to make necessary and timely decisions in response to changes in the market. The increase in penalty will help to make certain that the regulator’s enforcement powers for such a breach are sufficiently dissuasive and that the United Kingdom is fully compliant with European law.
I turn to the questions from my noble friend Lord Clement-Jones. The other changes have been passed and were made law on 26 May. They were passed by negative resolution in a statutory instrument. The change has been decided with Ofcom, and £2 million will make certain the equivalence with other enforcement measures.
We have listened to many people concerned, who have said that the level of this penalty must be proportionate to the breach. My noble friend Lord Moynihan asked for more details of the consultation level. We conducted a full and proper consultation from autumn last year. The response from industry was clear; it is vital that Ofcom is able to make properly informed decisions about this fast-moving sector. This means gathering all the necessary information through the effective and proportionate use of its information-gathering powers. Although a small number of businesses raised limited concerns about the level of the penalty sanction, the majority of the people concerned supported the Government’s proposals. In fact, all respondents to the consultation recognised that it is important for Ofcom to be able to levy dissuasive penalties for the breach of such powers, particularly on those operating short-term scams, as I mentioned, when the potential gains to the operator can exceed the amount of fine.
Four hundred and twenty organisations were consulted, and from 70-plus came replies. There were also more than 80 separate meetings, events and round tables with the industry, the regulator and consumer groups.
The noble Lord, Lord Stevenson, asked whether the change was necessary and whether it was not gold-plated. Changes to Ofcom’s information-gathering powers are intended to enable Ofcom to fulfil its role as the regulator more effectively. This change should not place significant burdens on industry, and it will apply only to businesses in breach of the UK regulation.
The noble Lord, Lord Stevenson, asked as well about the choice, which was between keeping £50,000 as a maximum and finding a sum that was consistent. There were more than 70 responses to the consultation, and most responses on this change were in favour of the £2 million sum. Only some of the larger companies were against.
The short-term scams mostly concern premium rate numbers run for 30 days. Sums run into the hundreds of thousands. They have been a serious concern for the regulator and for the European Commission.
The noble Lord asked about the impact on smaller businesses. The penalty does not have to be £2 million; that is the maximum. As I said earlier, it needs to be appropriate and proportionate. It is for Ofcom to decide, subject to appeal to the Competition Appeal Tribunal.
Her Majesty’s Government believe that this is a necessary and important change to the powers of the regulator. As I said, it will benefit both businesses and consumers. I recommend the order.
Gambling Act 2005 (Gaming Machines in Adult Gaming Centres and Bingo Premises) Order 2011
Considered in Grand Committee
My Lords, the legislation we are debating this evening concerns category B3 gaming machines. These are slot machines which currently allow a maximum stake of £1 and a maximum prize limit of £500. They are most commonly found in adult gaming centres – which are more frequently referred to as “AGCs” – and bingo premises. Under the provisions of the Gambling Act, a maximum of four of these machines can be offered by an AGC, while bingo premises may offer a maximum of eight.
The Categories of Gaming Machine (Amendment) Regulations 2011 will increase the stake limit for B3 machines—that is, the maximum amount that can be staked on a single game—from £1 to £2, while the Gambling Act 2005 (Gaming Machines in Adult Gaming Centres and Bingo Premises) Order 2011 will vary the maximum number of these machines that AGCs and bingo clubs can offer customers to 20 per cent of the total number of gaming machines available for use on an individual premises.
The changes have been requested by the amusement and bingo industries. The AGCs and bingo clubs have been struggling for some years with difficult trading conditions arising from the economic downturn. These difficult trading conditions are also affecting other related sectors, in particular British gaming machine manufacturers and suppliers. The British Amusement Catering Trade Association—which represents the majority of the AGCs and gaming machine manufacturers in Britain—estimates that revenues across the industry are now down some 36 per cent since 2007, with over 250 arcades and 1,300 jobs lost. BACTA also estimates that gaming machine manufacturing output has dropped by 40 per cent since 2006, with employment in the sector down by 33 per cent during 2009. Alongside this, figures produced by the Bingo Association show that 128 clubs have closed since 2006, with gross gaming sales having fallen by some £900 million since 2008-09 and employment down by nearly 30 per cent since 2006.
Category B3 gaming machines are an intrinsic part of the business model for AGCs and bingo clubs. They are very popular with adult players and generate significant levels of revenue for these businesses. These changes will allow them to adapt and develop their business model to meet the challenges of the current economic climate.
Amusement arcades and bingo halls are some of the oldest tourism and leisure businesses in Britain and occupy unique roles in the leisure industry. The AGCs in Britain employ nearly 20,000 people. They are often a vital part of many seaside towns, where they form an integral part of the local tourism offer and are significant employers not only in terms of individual premises but also in supporting businesses involved in manufacturing, supply and maintenance.
Bingo clubs also form a significant part of local economies in terms of employment. The industry employs some 17,000 people. But they also play a wider role. Some 3 million people in Britain play bingo, and bingo clubs very often provide a valuable social amenity. They fulfil an important social function in many communities, especially for older and retired people—older women in particular.
However, gambling is different to other industries. For the overwhelming majority of people in Britain, gambling is a pastime, and does not present any problems, but for a tiny minority of people it is a darker business. The 2010 gambling prevalence survey showed that problem gambling levels in Britain had increased from 0.6 per cent to 0.9 per cent of the adult population over the last three years. That is nearly half a million people. This risk is why gambling in Britain is carefully regulated. In the case of gaming machines, a robust regulatory framework is in place. There is a comprehensive licensing system for operators, manufacturers and suppliers; and stringent rules covering access, supervision, and the technical standards of the machines. Regulations also strictly control the amount that customers can stake and win, and the numbers and types of machines gambling premises businesses can offer.
This regulation works. Britain has very low rates of problem gambling compared to other jurisdictions. However, as a consequence operators face restrictions around the types of commercial decisions they have to take to maintain and grow their businesses. They are unable to adjust product pricing to absorb increasing costs, and as machine numbers are set centrally, they are limited in how they can respond to demand and tailor their offer to meet local circumstances. Amusement and bingo industries have therefore asked the Government to change the rules around category B gaming machines to allow the stakes permitted to be raised and the incidence of such machines increased.
Following a public consultation, the Government are persuaded that the situation facing AGCs and bingo clubs is sufficiently grave to justify a recalibration of the stake limits and entitlements for B3 machines. By bringing forward these measures the Government want to give greater flexibility to these businesses to make the necessary commercial decisions about the products they offer customers for B3 gaming machines in Britain—both through new machines and new game formats, thereby offering a boost to the manufacture and supply sectors.
The Government would like these businesses to thrive, but not at any cost. I referred earlier to the level of problem gambling in Britain and I want to make it clear that protection of the public—especially young and vulnerable people—will remain paramount. A public consultation on these measures closed in January, and a wide range of views for and against was expressed. The Government have taken notice of these views and are confident that these matters do not present a risk to problem gambling. They balance meeting the needs of business with protection of the public. The fact is that what research there is about the impact of gaming machines on problem gambling is inconclusive. There is no clear evidence—further research is continuing; but it will take time to bear fruit, and in the mean time businesses are suffering and jobs are being lost.
Let us bear it in mind that the 2010 prevalence survey showed that participation in slot machines has decreased since 2007 from 14 per cent to 13 per cent. Based on the available evidence, the Government do not see B3 gaming machines as a risk to the public. In fact, the current regulations have led to unintended consequences: such is the demand for B3 machines from customers in AGCs and bingo clubs that operators have often resorted to splitting their premises artificially in order to meet this demand. This is not conducive to effective regulation.
The measures we are debating this evening are not simply about allowing operators to install more machines and charge more for their use. They should stimulate demand for new B3 game formats and new machines across the amusement and bingo industries, thus offering a timely boost to manufacturers and suppliers as operators look to refresh their offer. Operators will be able to respond to customer demand without having to play fast and loose with the regulations by artificially splitting their premises.
The Government estimate these measures should see an injection of up to 3,000 new B3 machines into the market as operators take advantage of more flexible machine entitlements. This could see an increase in revenues of £8.5 million a year across these industries. This is a modest amount, but it will offer security for social and economic assets in local areas and protect jobs. It will make the difference in keeping smaller bingo clubs open and provide a potential lifeline to many small family-run arcades, particularly in seaside towns, which are struggling in the current economic climate.
Finally, the Government are committed to removing unnecessary red tape and barriers to create the conditions for growth in the leisure economies. Consequently, these measures are a minor adjustment to the regulatory framework put in place by the Gambling Act. They are not about promoting gambling; they are about providing long overdue help to many tourism and leisure businesses. We want amusement arcades and bingo clubs to remain competitive in these tough economic times. These are some of the oldest tourism and leisure businesses in Britain, employing between them some 37,000 people. They are important elements of many local economies, particularly in seaside towns, as I said. We want them to thrive. I commend the regulations and the order to the Committee.
My Lords, I thank my noble friend the Minister for her introduction, which I believe makes a strong case for redressing the balance, as I see it, between licensed betting offices on the one hand, and arcades, AGCs and bingo clubs on the other. She mentioned figures, which are contained in the Explanatory Memorandum, about the closures of bingo clubs and AGCs over the last few years. There are some 400 closures—391, to be precise. That illustrates the problems that those establishments have faced over the past few years.
I pay tribute to BACTA and some of the other organisations for the persistence with which they have pursued this issue on B3 machines. We have to accept that the previous B3 regime encouraged premises to get round the limits by splitting their space up into separate areas, as the Minister mentioned. This announcement has been mooted for some time; indeed, when one looks back at debates on orders on C and D category machines under the previous Government, it was clear that there was a debate over whether the B3 changes could be made at that time. Certainly, favourable noises were made by Mr Sutcliffe and others, but nothing was ever really done about it. So I welcome very much that that is now happening.
There are some issues, however. What worries me is that these things are done so often in a piecemeal fashion. We had the C and D changes in 2009, and we are having these B3 changes now. It is extremely important that there is a regular review of these issues, and that the state of economics of bingo clubs and AGCs is regularly examined. They are an important part of the amusement economy—indeed, the seaside economy. I note that the Minister in the other place is a Member of Parliament who represents a seaside town. It is very important that there should be regular reviews. I believe that a regular stakes and prizes review used to take place. I do not know whether it is planned to reinstitute that on, say, a regular three-yearly basis. There seemed to be some hint in what Mr Penrose said in the other place that that might be the case. However, it is important, if possible, to make that commitment.
Review is also important to see the impact that these new machines will have, not only on the establishments but on the public’s gambling habits. It was notable from the debate in the other place that there are differences of view over the impact of this order on the sheer number of machines that might be introduced. There was clearly a wide discrepancy between the Government’s quite low figure of 3,000 extra machines and the figure cited by others, which was considerably higher.
There is also the question of which other establishments should be able to benefit from changes in machines. Not everybody goes to bingo halls or AGCs. Snooker halls have also come up in debate. I hope that the Minister and her colleagues in the DCMS will also consider that issue.
Finally, one thing puzzles me. I think that this is a sensible order and the right way to proceed. However, it appears that the Gambling Commission has a different view on how these additional B3 machines should be calculated. It would be helpful if the Minister could explain where the Government differ from the Gambling Commission, and why they have decided not to accept its advice in these circumstances.
My Lords, I also support the government proposals before the Committee. I echo the comments of my noble friend about the effectiveness of BACTA, the trade body for the British amusement industry. It is good to see highly professional trade associations working with small, family-run businesses, many of which are based at the seaside and more than 500 of which are members. BACTA does excellent work and has done so for several years.
What struck me about the Minister’s speech was that she looked at the economic impact over the past five or six years; indeed, she went back as far as 2006 at one stage in her statistical analysis. Over the past five years, the reality is that the serious decline has happened in the past two years. In other words, the economic impact of this is getting more and more serious. We can see that from the background against which, over the past two years, there have been approximately 200 arcade closures, representing some 800 job losses. However, there are many more than those 800 when you consider the part-time nature of positions over the summer. In addition to the loss to local businesses, there is a direct knock-on effect on related enterprises such as souvenir, gift and high street food and beverage shops, many of which are based in seaside resorts. The life-blood of those seaside resorts is local businesses—those gift shops and high street shops. It is good to note that the work being done by so many of these small, family-run businesses at the seaside generates local activity and employment.
However, those businesses are under very serious economic constraints, because of which the Prime Minister made a pre-election pledge to throw a lifeline to the traditional British amusement industry by reversing changes made under the Gambling Act 2005 to the operation of amusement machines. These proposals give effect to that pledge and would see a return of a maximum stake for category B3 machines from £1 to £2, as the Minister said, and an increase in machine entitlement to 20 per cent of machines sited, or four machines, whichever is the greater. According to some of the estimates in the impact assessment, this small change that the Committee is considering would raise in the order of £8.3 million for the industry. I ask my noble friend: is that the correct figure? If so, the financial assistance will alleviate some of the pressures threatening the industry since the introduction of the Gambling Act 2005, and other economic pressures felt by the sector. I therefore support the measures.
Out of interest, I ask the Minister whether, given the proposed increase, the next generation of machines will have the capacity to take a £2 coin, or will we have to plug in two £1 coins? We have not touched on the related issue of whether the Government are considering increasing the prize limit from £500 for category B machines in the future and, if so, when.
I thank my noble friend for her comments—it was, again, another eloquent opening speech. I emphasise that given the speed of economic decline in this sector it would perhaps be of value to the Government in the future to revise the levels we are talking about today on a more frequent basis than they have done in the past.
My Lords, I start with a complaint. In volunteering to undertake this slot—no pun intended—I felt peculiarly disadvantaged because I have never knowingly interacted with a gambling machine of any type. I may have led a very sheltered life but it has never come my way. There is plenty of space in here so we could have had a demonstration or a machine to play with while the Committee sat for hours on earlier orders. At least we would have better understood the mechanics, if not the economics, of the industry. I hope that when the Minister replies she will respond to that in an appropriate way.
There is no concern about the aim here, which is to allow the business more flexibility to respond to the economic climate. I recognise the unintended consequences of the current regime, where operators are manipulating the rules by artificially splitting premises. I wonder what an artificial split of premises is, but I think we get the picture.
The key is that in the Government’s judgment this will not undermine the central aim of the Gambling Act 2005, which is, of course, public protection and ensuring that gambling is crime free, fair, open and protects children and vulnerable adults. We have heard reassurances from the Minister and I do not think that these changes will undermine that.
The noble Lord, Lord Clement-Jones, referred to the Gambling Commission, which is the Government’s principal adviser in this area. It is interesting that its various comments, which are seeded throughout the impact statements and other documents that we have seen, suggest that gambling machines are becoming a little less popular—although the decline is relatively small—and that they do not seem to lead to problem gambling. In our regime, prizes are quite low by international comparison, and the combination of that and a robust licensing regime suggests that there is room to make the changes proposed.
On the other hand, the recommendation from the Gambling Commission is that we should not look at changes in areas such as B3 machines in isolation, a point picked up by other noble Lords; we need a wider prospectus when we are considering changes. That point did not come through well in the documents that I saw. This is a complicated situation, and not only within the venues and places we are talking about. Changes here will redouble pressures for changes elsewhere, as has been mentioned. In some senses— although one does not wish to restrict choice in these matters—if we are really concerned about the growth in gambling, any increase in availability is, in principle, a bad thing.
On the consultation, I read in the documents that there were 92 consultees—mainly from the industry, although there were some consumer groups—and that they were offered a wide range of options, ranging from do nothing to changes in relation to floor space. Like the noble Lord, Lord Clement-Jones, I was perplexed that the Government did not accept the advice from its principal adviser, the Gambling Commission, on this matter and went for option 5, the model wanted by the industry. The Gambling Commission wanted option 6, which required that the increased number of machines permitted should be related to floor space, which is the common sense and logical position. Anything else would be rather odd to calculate as you would have an assessment of the total number of machines and then a proportion of that subject to a floor limit. That does not seem a robust way of doing this. The size of the premises is important because it will reflect the number of people who can use it. That would be a better way but, nevertheless, it will be interesting to hear the Minister’s response on this.
There are three or four points on which the Minister might reflect before she responds. Clearly, the Government have to balance the growth in popularity of the B2 machines in betting offices and the impact of the proposal on other gambling centres, which might draw customers away, rather than try to maximise the spend from existing customers in existing premises. That would be a problem, and I am not sure whether the view is that that will be the case. I think that it is not the case, but we nevertheless need to keep an eye on this.
I agree with the noble Lord, Lord Clement-Jones, that there will be a need for a regular review of this whole area, not just because of the integrated way in which all the various venues and machines fit together, but because we do not know enough about the way that gambling trends are going—particularly problem gambling trends. If we are talking about 500,000 people, that is a sufficient number for us to want to keep an eye on the situation. We do not really know what will be the total number of machines, consequent on the changes, and it would be interesting to have regular feedback on that.
There is mention in the documentation of the impact of tax on the way that the industry will work, and there is the suggestion of a machine games duty. I am not sure whether the level for that has yet been set, or whether that proposal has been implemented. When the Minister responds, can she give us some information on that, because it will be an important aspect of this? It would also be useful to track more accurately the change in takings. The figures that the noble Lord, Lord Moynihan, mentioned were startlingly large. If the measures indeed generate more than £8.3 million in additional revenues in this area, we would like to know about that. It was also mentioned somewhere in the documentation that the Government are a bit doubtful about the BACTA figures on generating income. Again, it would be helpful if the Minister could respond on that.
Finally, there is mention of further research being carried out by the Responsible Gambling Strategy Board and the Responsible Gambling Fund that could feed into this regular review. The outcome of that will be awaited with interest.
My Lords, this has been a very helpful debate and I thank all noble Lords who have spoken. I thank my noble friend Lord Clement-Jones for his support, and I will try and answer his three questions. The first was regarding a regular review, which the noble Lord, Lord Stevenson, also wanted to know about. We would like a more systematic approach to be in place, and we are minded to return to a triennial review system, as the noble Lord, Lord Clement-Jones, mentioned. We hope to develop this area with the industry and the Gambling Commission, and to explore how it might work. There are no plans for the moment to make changes to stake and prize limits for B2 machines.
The noble Lord’s second question was regarding other establishments. The Government have made clear their commitment to the British amusement industry to deliver these measures. The Minister for Tourism is meeting Rileys Clubs Ltd tomorrow, Wednesday 6 July, to discuss this issue, and it would be wrong to pre-empt that meeting.
On the noble Lord’s third question, also mentioned by the noble Lord, Lord Stevenson, the Gambling Commission originally favoured an approach based upon floor space. The Government took these views into account but felt, on balance, that the 20 per cent formula would be better placed to meet the needs of both the AGCs and bingo clubs, plus, it would offer a real boost to the machine manufacturers.
My noble friend Lord Moynihan is very knowledgeable in this area, because I believe he took through the previous Bill. I totally agree with him regarding the seaside resorts and that the Prime Minister supported this at a very early stage. As to the estimate of the economic benefit set out in the impact assessment, the impact assessment was considered by the independent regulatory policy committee and was assessed as being a reasonable estimate of impact. We therefore believe that it is an accurate estimate.
The noble Lord asked whether the new generation of machines would take the £2 coin. Yes, they will.
I am sorry that the noble Lord, Lord Stevenson, has never tried slot machines, because they are rather fun for a flutter, but perhaps your Lordships' House is not quite the right place to have them.
Oh, well. Perhaps that is another place and another time.
The noble Lord asked a more serious question about tax, which of course is a matter for the Treasury. Decisions on the eventual rates and thresholds for a new duty will be made by the Chancellor in the 2012 Budget. The Treasury has launched a consultation on the design characteristics of the new duty. We would urge all interested parties to engage as fully as possible with the Treasury on this matter. I am aware of the industry’s concern about any additional tax burdens and have made my Treasury colleagues aware of the industry’s difficult economic situation and the need to minimise burdens on operators.
This has been a very constructive debate. I thank all noble Lords who have contributed. I commend the order to the Committee.
Categories of Gaming Machine (Amendment) Regulations 2011
Considered in Grand Committee
Committee adjourned at 7.07 pm.