Thursday, 12 July 2012.
Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2012
Considered in Grand Committee
The Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2012 amend the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007, which I will refer to as “the 2007 regulations”, to provide for a revised set of statutory forms and notices to be used by returning officers for the conduct of mayoral elections in England and Wales. The updated forms and notices reflect the Government’s commitment to improving the quality and design of voter-facing materials, with the aim of assisting voters to effectively engage and avoid errors in the completion and casting of their ballots.
The key reason for making the changes now is to ensure that the forms and notices for mayoral elections are consistent with the ones that the Home Office developed for the first elections for police and crime commissioners that will take place on 15 November this year. The voter-facing forms and notices that the Home Office has developed and user-tested for use at these new elections are different in design and content from the forms and notices specified in legislation governing the conduct of other elections, and are intended to be clearer and more accessible to voters.
As a mayoral election is scheduled to be combined with a PCC election in Bristol on 15 November, these regulations will amend the 2007 regulations to ensure that the forms and notices are consistent with those set out in the draft Police and Crime Commissioner Elections Order 2012, which was debated in another place on 26 June. The need for consistency is particularly important here, due to both mayoral and PCC elections being run under the same supplementary vote system.
The Committee may be interested to know that, in common with other legislation governing the conduct of elections, two sets of forms and notices are prescribed in the 2007 regulations: one set to be used when a poll at a mayoral election is taken alone and another to be used when a mayoral election is taken in combination with another poll. Schedule 1 of the regulations before us contains new forms and notices for stand-alone mayoral elections, and Schedule 3 deals with the materials that should be used when a mayoral election is combined with a police and crime commissioner election.
The changes that we have made to the election materials for the mayoral elections are supported by and consistent with recommendations that have been made by the Electoral Commission, the Association of Electoral Administrators and Scope. Further, we acknowledge the work undertaken by the commission in producing and undertaking valuable user testing on the statutory voter-facing material for last year’s referendum on the voting system, and we believe that it is important to keep up the momentum in improving standards in this area.
The first steps that we have taken to achieve this have been to develop the electoral materials for the PCC elections and to revise the forms and notices for mayoral elections. We will continue this work by looking at the statutory voter-facing material in respect of other scheduled elections and will continue to work with the Electoral Commission, electoral administrators and other stakeholders, such as those representing disabled people, in taking this work forward.
While the main purpose of the regulations is to amend the mayoral forms, we have taken the opportunity to rectify textual errors which have been identified in the 2007 regulations. Rule 5(3) of Schedule 1 and Rule 5(3) of Schedule 3 to the 2007 regulations are concerned with the deadlines for applications to vote by post and proxy which must be included in the published notice of election. Currently these rules make reference to the returning officer when voting registration is, of course, a matter for the registration officer, so we are amending these rules accordingly.
In conclusion, these regulations represent a small but none the less important step in improving the experience of the elector by providing for forms and notices that are up-to-date, clear and easier to use than those prescribed in current legislation. I commend the draft regulations to the Committee.
I thank the Minister for introducing this draft statutory instrument. Of course, these forms are essentially just for the lucky people of Bristol who on 15 November will have the chance to make themselves more like a US town with a vote for the head of the police and the local town sheriff—sorry, mayor. And apologies to the city of Bristol—and it is the city of Bristol, which I fondly remember from my schooldays there at Downend Infants. However, it will be a first in our country, with an elected mayor and a police commissioner—who we must hope will get on rather better than some other cases closer to my current home—to be selected by the good citizens of Bristol on the same day. Our rather strange UK set-up means that the mayoral elections are the purview of one department, the DCLG, and the police commissioners of another, the Home Office, with the Minister’s department holding the ring and seeking to ensure some consistency. We are delighted that she and her colleagues have done as well as they have in producing this statutory instrument, but I have a few questions and a couple of comments.
First, I note that Scope and the electoral administration officers have quite rightly been consulted and involved in the design of the forms but there is no mention of political parties. Given their extraordinary experience and expertise in this area, why have they not been asked for any input? Like other party activists, I have helped umpteen people fill in forms for proxy and postal voting, guided people into polling stations and chatted endlessly, especially on quiet election days that I rather fear 15 November will be, to both voters and fellow tellers from the other parties about the whole business of voting. As I am sure she knows it is the one day we all get on well together. It seems a real shame if none of us—as the real activists who know the use of these forms really well—has been involved. I am sure that some of these people would have commented on the contrast between the extremely clear ballot papers on pages 3 and 4 and excellent directions for the guidance of voters on page 11 and the horribly confusing postal voting statement on page 8, to say nothing of the type size—which is too small for my 62 year-old eyes, so I am sure that it will beat those of an 82 year-old. So my question is: are party activists and agents at all involved in the design process?
Secondly, why are there two such different systems for getting candidate information out to voters when the aim appears to be, particularly in Bristol, to make this one seamless election day? Information on the police chief candidates will be on the web but information on the mayoral candidates will be in leaflets distributed to the electorate. Does this reflect the Government's lack of interest in the election of police commissioners or their lack of concern about those without access to the internet? Even if people have access to the internet, they often do not have access to a printer to be able to print off such documents to look at them at home or with colleagues or family. For the very first of these elections in particular, have the Government so little interest in ensuring real community engagement? The issue was of such importance to the coalition that it three-line whipped it through Parliament. Given the importance of policing to the elderly, the disadvantaged and the young, is this really the best way of promoting interest?
Thirdly, as well as being a new voting system, it is an election for two new posts. Is the Minister confident that everyone eligible to vote will both know about the elections and what the two new postholders will do and be clear about the choices that will face them as they enter the polling booth?
Those are my three questions. I turn to my comments, to which the Minister may not wish to respond. First, I wonder whether the case for a threshold in these elections should be considered. What if turnout for the police commissioner elections was only 8%, or that for a mayoral election was as low? Is there a level at which the Government should ask whether this is really more representative and accountable than what went before? Secondly—the Minister will be used to my counting by now—I assume that the Minister’s department has now stood down its work on equivalent forms for the election of Senators in May 2015.
My Lords, I thank the noble Baroness, Lady Hayter, for her words in support of the regulations. Like her, I have spent many elections as a teller and in weathers of all sorts. Perhaps I may first put her mind at ease on the question of information on PCC elections being available only on the web. I reassure her that such information will be available and not only on the web. Voters will be able to access hard copies if they so wish by calling a freephone number. People who find using internet services difficult will be able to utilise that.
The noble Baroness asked why booklets would be available for mayoral elections. PCC elections will be nationwide, whereas, in this instance, the mayoral election will be in only one place. The Electoral Commission will make sure that an effective campaign is conducted so that voters are fully informed about elections in their areas.
The noble Baroness raised quite a complex issue in relation to postal voting. If she will allow, I would rather take that question away and perhaps give her a more in-depth response in due course. A number of questions will need to be asked of postal voters which are perhaps better set out in a written response.
The noble Baroness asked about turnout. Of the 1 million people who responded in referendums on mayoral elections, nearly 430,000 said that they wanted a mayor. On the basis of those numbers, I think that there is an appetite. If the people of Bristol have decided that they want a mayor, it is likely that they will turn out to vote. The reason for making the ballot papers similar is to remove confusion, because it will be the first time that supplementary voting takes place. As a Government we have tried to make this task as easy as we can—I know that the noble Baroness accepts and acknowledges that—to ensure that the voter has the information at hand.
The noble Baroness asked about the consultation with political parties. We consulted actively with the Electoral Commission and others on voter-facing forms. I suspect that that would have been undertaken across a lot of people although not aimed specifically at political parties. We note the value of that for the future, in the light of the comment made in the Chamber earlier. Of course it does not prevent us looking at how these elections fulfil the obligations to ensure that we have greater participation by the voter, and there will always be lessons to be learnt.
On that note, I am pleased that the noble Baroness supports the regulations. If I have not answered her questions, I hope that she will allow me the opportunity to write to her.
Perhaps I may ask a question which I should have asked previously. Are these two elections coterminous? Is the election for the PCC in Bristol exactly the same as the one for the mayor? My only other comment is to ask whether she would take back the idea of early engagement with political parties. Sometimes there is a reluctance, even in the Electoral Commission, to understand the role that political parties play in the democratic process. That is more a message for the noble Baroness to take back than a question for her to answer now.
Police and Crime Commissioner Elections (Functions of Returning Officers) Regulations 2012
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Police and Crime Commissioner Elections (Functions of Returning Officers) Regulations 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments, 3rd Report from the Secondary Legislation Scrutiny Committee.
My Lords, these instruments will ensure that all necessary preparations are in place for 15 November 2012 when the public go to the polls to elect their first police and crime commissioner. I know that the House has always taken a keen interest in shaping electoral law and we have drawn from that existing body of tried and tested law wherever possible.
The Committee will recognise the provisions in respect of electoral registers, the timetable for nominations and the ability to vote by post or by a proxy. It will also recognise the provisions for elections offences and for the combination of PCC elections with others held on the same day, such as the mayoral elections in Bristol. Your Lordships will recall the processes for counting the supplementary vote from mayoral elections. PCC elections will be part of the framework under the Political Parties, Elections and Referendums Act 2000—with which, again, I think the Committee will be familiar. Your Lordships will also see that our police area returning officers, or PAROs, are similar to regional returning officers in European parliamentary elections.
However, there are some notable differences from existing practice. For example, while candidates’ campaign spending limits will be based on the existing rules for mayoral candidates, these limits will be set out numerically for each area rather than requiring each candidate to calculate the formula themselves. We are grateful to the Electoral Commission for its advice on this.
PCC candidates will need to obtain 100 nominations and tender a deposit of £5,000, which is more than most elections but less than London mayoral elections. We have worked closely with the Electoral Commission and others to design ballots and forms that are more user-friendly, with a special focus on those who may find it more difficult to read, or to read English.
Rather than a paid-for mailing, the Government will offer every PCC candidate the chance to have a page on a new website and will offer a freephone line for the public to order a free hard copy. This will be the best approach in the circumstances. Both the web address and phone number will appear in all Home Office and Electoral Commission literature, in all advertising on PCC elections, and on poll cards delivered to every elector. Electors will know where to go to find information on candidates.
This policy is primarily driven by cost, but there are other advantages. The fact that hard copies will be provided on request means that they can be tailored to the needs of the individual. For example, we can provide copies in formats such as Braille, and under our plans electors will be able to choose the address to which the information should be sent. They might find that a work address is more convenient, or an address where they are staying temporarily.
This is very different from the position in 2000, when your Lordships’ House considered the rules for the London mayoral elections. The then Government proposed offering no candidate information, whereas we are confident that everybody who wants candidate information will be able to access it under our proposals. The order and the regulations before the Committee are the culmination of months of work and close consultation with expert planners, including the Electoral Commission, the Society of Local Authority Chief Executives and the Association of Electoral Administrators. I will echo the thanks to them of the Minister for Policing and Criminal Justice in another place. They are the foundation of an entirely new model of policing that will connect the police directly with the public they serve. I commend the order and regulations to the Committee.
My Lords, I am a member of the Electoral Commission and have been for nearly two years. Will the noble Lord tell the Grand Committee why the Home Office has been involved in this? It is as if we have tried to reinvent the wheel and ended up back where we started. There is expertise in the Cabinet Office. We may have National Park Authority elections in future and there is another unit in Defra. There seems to be complete duplication, with different units doing the same thing. Would it not be more sensible if all these things were contained in one unit which had expertise in the nuts and bolts of elections?
My Lords, we welcome the chance to debate the order and regulations, which address a number of matters related to the running of elections for police and crime commissioners. We strongly opposed the move to elected police and crime commissioners for a number of reasons, including the amount of money needed to conduct the elections. It could and should have been used to support front-line policing, which is being adversely affected by the cuts, contrary to government assertions that this would not be the case. However, the Government’s Bill passed through both Houses of Parliament, so elections for police and crime commissioners are a reality, and we are putting up candidates since we do not intend to let the coalition partners—I think they are still partners, just about—have a free run.
Of course, the Government originally wanted to rush through the elections in May of this year. However, eventually and grudgingly they put them back to November. The Government’s bright idea was that they could be run on the same date as a number of mayoral elections in our major cities, which would enable some of the costs of the police and crime commissioner elections to be shared. Unfortunately, that bright idea made an assumption that proved somewhat wide of the mark—namely, that the citizens of our major cities would in droves endorse and vote for elected mayors. Apart from in Bristol, they did not. Therefore, we have almost exclusively stand-alone elections for police and crime commissioners. Perhaps the Minister will tell us what will be the cost of these elections in November compared with the cost of holding them at the same time as local elections, which was clearly the Government’s intention but which has now been dropped.
Holding elections in November is not designed to maximise turnout—but to this Government, the only thing that appears to matter is getting elected police and crime commissioners in place. Other considerations that one might think were important when holding countrywide elections for these new posts for the first time seem to take a back seat.
One of the orders in front of us proposes that each candidate can have,
“an election address included on a website”,
but that there will not be any publicly funded mailing or locally distributed booklets. We know that, despite being short of money, the Government have other priorities—such as reducing government income through a 5p in the pound reduction in tax for millionaires—but trying to make up this self-inflicted shortfall by not publicly funding mailings from candidates or locally distributed booklets in what are countrywide elections for new elected posts with responsibilities over wide geographical areas, which the Government regard as of great importance and significance, is a kick in the teeth for the democratic process.
As has already been said, we will presumably have the situation in Bristol where there will be a publicly funded mailshot or locally distributed booklet for the mayoral election but no such provision for the election on the same day for the police and crime commissioner, who will have responsibilities over a much wider geographical area and bigger population than the elected mayor.
In its original submission as part of the consultation, the Electoral Commission said that the Government’s proposal was,
“a significant departure from what is provided for UK Parliamentary, European Parliament and Mayoral elections”.
The commission went on to say:
“Delivering information primarily via a website will exclude the still significant number of adults in England and Wales who do not have easy access to the internet: as many as 7 million adults in England (excluding London) and Wales are estimated not to have used the internet at all in the last 12 months”.
The commission also commented:
“Candidates for PCC elections will also need to communicate with a much larger number of voters across their ‘constituencies’ than usual; and there may be significant numbers of independent candidates who do not have the support of a party behind them to promote their campaign”.
The Office for National Statistics has said that well over 8 million people have never used the internet, of whom 5.5 million are over the age of 65, with the majority being women. The gross income figures also show that the better-off members of the community use the internet the most and it is the least well-off who do not have access to the internet. There are also regional disparities: internet usage is lower in other parts of the country than in the south-east and south-west of England.
So we have disparities of income, gender, age and region—but if you ignore all those considerations of course we have a level playing field, which is no doubt what the Government will claim. Perhaps the Minister can tell us the outcome of the equality assessment that one presumes the Government have done on the order, or will he tell us that, for obvious reasons, they have not dared to do such an exercise?
A website alone will not be enough for individual candidates, many of whom are likely to be not well known, to get their message across; leaflets to every household are also important. Only wealthy candidates will be able to afford to produce their own leaflets and then pay for their distribution, and only parties with significant numbers of volunteer supporters will be able to undertake a leaflet distribution throughout what in most cases will be constituencies of considerable geographical size and population.
The cross-party Association of Police Authorities has asked for the proposals for voter information and awareness-raising for PCC elections to be strengthened so that they are at least equal to those for mayoral elections, in order to help raise voter turnout on 15 November and address its concerns about the potential impact of a low turnout. I am not sure whether or not these concerns have been ignored. No doubt this is something the Minister will be able to tell us about.
Recent newspaper articles have claimed that the Home Secretary has asked the Treasury for money to fund an advertising campaign to encourage stronger candidates to come forward. One newspaper quoted a Whitehall source as admitting:
“The policy is in disarray. There is a chance it will be a damp squib”.
Perhaps the Minister can do a little bit more than his colleague in the House of Commons in answer to a straight question and tell us: is it true that the Secretary of State for the Home Department is seeking or has sought additional money from the Treasury to fund a publicity campaign to attract more people to stand for office?
Perhaps the Minister can also tell us what level of turnout the Government are expecting under their proposed arrangements, and what level of turnout they would deem had shown the new arrangements to be a success. Maybe I will be surprised, but I suspect that the last thing the Minister will do is give a specific answer to that question. Perhaps the Minister will tell us that there is no problem because the millions of people who rarely or never use the internet will of course be able to make a free telephone call to ask for written information about and from the candidates to be sent to them. If he is going to come out with that one, I hope that he can manage to keep a straight face when he says it.
The Parliamentary Secretary at the Cabinet Office said on 18 June that the Government may consider a similar procedure for a general election, with an eye to overseas voters. Perhaps the Minister could clarify whether that meant that the Government were considering a similar procedure for overseas voters in a general election or all voters in a general election.
What the Government are proposing will do nothing to promote a high turnout. Indeed, it appears designed to do the exact opposite. That is the effect of this order. The Government are only interested in seeing elected police and crime commissioners in place and they are quite prepared to introduce a new and flawed election process, on top of holding the election in the month of November, to achieve that objective.
My Lords, before I respond to the rant of the noble Lord, Lord Rosser, I will answer some questions from the noble Lord, Lord Kennedy, who is rather worried about why it was not the Cabinet Office that was dealing with this matter, particularly in light of the fact that there were other elections coming along in due course which Defra, my former department, and DCLG might have an interest in. I would very much welcome the Cabinet Office dealing with all of these things, in which case I would be able to deal with the Statement on home affairs business that is taking place in the Chamber at the moment and which my noble friend Lady Stowell has to do on my behalf. It is for the Home Office to develop policy on elections for PCCs, so I am dealing with this, and that is why I am here. I can assure the noble Lord that the Cabinet Office, DCLG and all the other interested parties have been involved in all these matters from the beginning. Obviously we will continue to consult them as and when appropriate.
As I said, I listened to the rant of the noble Lord, Lord Rosser, if I can put it like that. I think that we know what his party’s views on PCCs are. We have had yet again, as we had in another place, this rather confusing message saying, “We oppose PCCs on the grounds of cost. But having opposed them on the grounds of cost, we now think that we should spend yet more money on providing more information to the public than is necessary”. I find that a confusing line to put forward.
I say to the noble Lord that the only significant cost of PCCs is the cost of the elections. I appreciate that the cost is £75 million. However, I again give an assurance—which I and my colleagues have given on other occasions—that it will not come from funds that would have gone to forces. We believe that democracy is a justifiable cost, making the police more accountable to the public.
I can also assure the noble Lord, Lord Rosser, that we are not making information on these matters available solely by the website, as he said. Although we are making it available on the website, there will also be other ways of accessing that information—by means of a telephone call or having the information sent to any address that people particularly want to have it sent to. The noble Lord and his party are really coming on a bit rich by demanding yet further expenditure on these grounds—sending out leaflets to all electors—particularly when, as he will remember, his party refused to provide any such information on candidates for the London mayoral elections until there was opposition pressure on them to do so.
The noble Lord also asked what we would consider a successful turnout level. Obviously I will not give any estimate of what the turnout is likely to be—it would be a very foolish Minister who did so. However, we expect that the public will be enthusiastic about having their first elected PCCs. We hope that that enthusiasm will build over the years and that we will see more commissioners elected. Some might be from the noble Lord’s party and some might be from others. Certainly the hits on the police.uk website seem to demonstrate an interest in this. It certainly demonstrates that the interest in PCCs is much greater than the interest in the current system of police authorities.
I am not sure that I have dealt with every question put by the noble Lord but I think that I have dealt with the vast majority of them. I hope that he will accept that. My final point concerns his remarks about regional variations and the access of the less well-off to the website. That point was dealt with earlier. There will be other means of accessing information—I hope that the noble Lord will accept that. The Electoral Commission, of which the noble Lord, Lord Kennedy, is a member, also agreed that all the information it will make available, such as poll cards, will go to all households. I hope that the noble Lord will accept that the appropriate information will go out and that everyone will have access to information regardless of whether they can access the website.
Apart from saying that the Home Office is doing it, the Minister has not answered my point. The Home Office will look at the regulations. I suspect that there will be very little difference between these regulations and what the Cabinet Office would have produced. Perhaps the Minister can come back to me and point out what is different. I suspect that it will be next to nothing. If that is so, why has it not been done by the Cabinet Office? It is nonsense that we have different units in different departments doing this. It is a complete waste of taxpayers’ money.
My Lords, I am more than happy to write to the noble Lord on the matter of whether the Cabinet Office should do this or whether, if the Home Office does it, it will merely replicate what happens in other elections. I will look very carefully at what the noble Lord said.
I think that the Minister claimed that he had answered the questions that had been asked—and of course he did nothing of the sort. I asked him whether an equality assessment had been done and what the outcome was, or whether the Government had dared not do such an exercise. I got no answer to that question. I also asked him whether he would clarify what the Parliamentary Secretary at the Cabinet Office meant when he said on 18 June that the Government,
“may consider a similar procedure for a general election, with an eye on overseas voters”.—[Official Report, Commons, 18/6/12; col. 652.]
I asked the Minister if he could clarify whether that meant that the Government were considering a similar procedure for overseas voters in a general election, or for all voters in a general election.
I also asked the Minister what the cost would be of holding elections in November, compared to the cost of holding them at the same time as local elections. As I recall, I received no response. I also asked him if it was true that the Home Secretary, as was reported in the newspapers, had asked the Treasury for money to fund an advertising campaign to encourage stronger candidates to come forward. I do not think that I got an answer to that question either. I am not surprised. I always know when I am on to a good thing because the Minister stands up and announces that what I said was a “rant”. One always knows that this means one will get no answers to the questions one has asked or the points one has raised.
The Minister sought to argue that somehow we had opposed the police and crime commissioner elections on the grounds of cost. That is true; that was our ground for opposing it. However, the game has changed now. The Government have got their Bill through and we are going to hold the elections. What we are saying is that now that the decision has been made to hold the elections, we should do it properly—in the same way, for example, as the Bristol mayoral election. Doing it in this way, with its emphasis on a website, will make it much harder for many people to find out about the candidates and what they are saying. I do not share the Minister’s apparently complacent view that they will all phone the free telephone number to ask for a copy of the information on candidates to be sent to them.
Oh dear. Possibly I described the noble Lord’s speech as a rant because most of his speeches are a rant, but let me answer just one or two of the points that he has made. We have already published the equality assessment and it is available on our website. I invite the noble Lord to have a look at it there. I also have a copy here. On the cost of having the elections in November rather than May, that figure has been out in the public domain for some time, as the noble Lord well knows, but I will repeat it: it is going to cost some £25 million more—so £75 million rather than £50 million—than if we could have had the election in May. I think that the noble Lord has some understanding of the reasons why it was delayed, because he may have been part of the opposition Home Office team that was dealing with the matters that caused some delays to the relevant Bill. He also asked about tailoring the website for overseas voters. Let us just get through the PCC elections; we are not considering general elections at the moment but we can look at that in the future.
I hope that I have now answered the noble Lord’s points, but if I have not, I will no doubt write to him in due course.
Police and Crime Commissioner Elections Order 2012
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Police and Crime Commissioner Elections Order 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments, 3rd Report from the Secondary Legislation Scrutiny Committee.
Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012
Considered in Grand Committee
My Lords, the purpose of the regulations and the Security and Travel Bans Authority to Carry Scheme 2012 is to prevent specific foreign national individuals who pose a terrorist threat flying to the UK. The objective is to enhance the protection of aircraft flying to the UK and to prevent certain individuals doing harm on board the aircraft or on arrival in the United Kingdom.
Aviation remains a target for terrorists. On Christmas Day 2009, we saw an attempted terrorist attack on board an aircraft over Detroit. The recently foiled plot by al-Qaeda in the Arabian Peninsula to repeat that type of attack demonstrates an enduring intent to attack commercial aircraft. This Government gave a commitment in the strategic defence and security review to,
“make changes to pre-departure checks to identify better the people who pose a terrorist threat and prevent them flying to or from UK”.
The provision under which the regulations and the scheme are being made is Section 124 of the Nationality, Immigration and Asylum Act 2002. The regulations and accompanying scheme will, first, require carriers to which the scheme applies to provide advance passenger information to the e-Borders system and seek authority to carry to the UK certain foreign national passengers specified in the scheme before. Secondly, they will make carriers liable to a civil penalty of up to £10,000 if, without reasonable excuse, they carry a passenger without seeking authority or if they carry a passenger for whom that authority was denied.
I do not anticipate the scheme having a dramatic impact on aviation industry operations. Our current estimate is that refusal of authority to carry might occur two or three times a year. Preventing just one terrorist attack must justify its introduction. The scheme will apply to all air carriers operating to the UK issued with an IS72 form. This is a written notice requiring the submission of passenger data to e-Borders. The scheme does not apply to British nationals. It applies to passengers on flights to the UK who are third-country nationals, EEA nationals who have been excluded or deported from the UK because they pose a threat to public security, and individuals who are the subject of an UN or EU terrorist-related travel ban.
Individuals in respect of whom authority to carry will be refused and who would be refused leave to enter the UK are those EEA nationals who are the subjects of travel bans; third-country nationals who have been excluded or deported from the UK on grounds of national security; and third-country nationals who have been or would be refused a visa because of national security. The scheme will not affect the free-movement rights of EAA nationals and carriers will not be required to seek authority to carry in respect of any EEA national exercising those rights.
The regulations and the scheme concern inbound foreign nationals only. The strengthening of pre-departure checks also extends to outbound journeys and the threat posed by British nationals. For outbound journeys, the National Border Targeting Centre will use e-Borders data to alert ports police to intercept any individuals travelling from the UK who pose a terrorist threat and are subject to legal restrictions preventing them from travelling internationally.
There is a power to make directions under the Aviation Security Act 1982 to prevent the boarding of British nationals who are assessed to pose a direct threat of terrorism to aircraft. I commend the order to the Committee.
My Lords, I am grateful to the Minister for that introduction. I have read all the documents about this with considerable interest. Before I comment on the regulations, perhaps I may say that I am also grateful to the Minister for the improvements that appear to have been made to the Eurostar immigration services. I came back yesterday and there seemed to have been some improvements. Much more work has to be done, and I am sure that we will have many more meetings, but it was good.
My concern about this draft regulation is its exact purpose. The second paragraph of the evidence base document which came with the draft regulation states:
“Existing powers are available to direct airlines not to carry a UK national who poses a threat to an aircraft, and to prevent people who pose a terrorist threat”,
within the country. The end of the paragraph says that this provision is to close a gap.
Can the Minister explain whether the real purpose is to prevent people blowing up an aircraft; to prevent them coming here to do nasty things on the ground, so to speak; or whether it is a bit of both? I can totally understand it if the purpose concerns the aircraft—in that respect, it all looks quite reasonable, and I shall come on to some of the detail later. However, if it concerns people coming to the UK generally, presumably it would be possible for them to avoid any problem by travelling across the frontier from the Republic of Ireland to Northern Ireland, or coming in by sea on a ferry, or coming in by train. I think that one of those means is included in these regulations, and I am pleased about that, as it might plug one gap. However, there might be one or two other gaps that should be looked at. Alternatively, we might need to consider whether this is all necessary.
I was interested in the consultation responses. I do not always read consultation responses but there is a long paragraph, in which it says:
“A response was received from a member of the public who was very supportive”.
If only one member of the public was supportive and nobody thought it was a bad idea, does that justify going to all this length? In a telephone conversation, a civil liberties group was also “supportive”. That is good, but to push these as the only two responses to the whole consultation indicates that people either did not understand it, were bored by it or did not think it would do any good anyway. If the Minister has any comments on that, I would be glad to hear them, because one could say that it was a bit of a job creation scheme and not much else.
Paragraph 18 of the Explanatory Memorandum says:
“Carriers will be informed by the Home Office if they do not have authority to carry any of those passengers. Those passengers should not be brought to the UK”.
I think that there is already legislation to enable those who come in to Heathrow or another airport to be turned round and sent away again. If the aim is to avoid terrorists doing bad things in this country as opposed to on an airplane, why do we need this if they can be turned round and sent back anyway without it?
From a practical point of view, if the airlines are happy that they have to send all this information in and the Immigration Service can respond within 15 minutes to a list of several hundred passengers, all I can say is, “Good luck to them”, and I hope that there will be a certain amount of settling-down time before people start sending out lots of fines. Frankly, it looks quite challenging, even if the Home Office’s computers work properly, which I do not think they do all the time.
My final point concerns the evidence base for this. I do not know whether it is a joke or we are supposed to take this seriously, but it talks about “hit” rates and “false positive” assessments, and the “movement search” covering five years of travel using the e-Borders system. It then uses a planning projection that is made by multiplying the result by 300%,
“which allows for a reasonable margin of error and ensures a prudent planning response”.
It goes on to say:
“Where the result is zero, the planning projection is taken to be 3 (as zero cannot be multiplied upwards)”,
which is helpful. I do not know who has produced this but is such a load of rubbish really value for money? “You cannot multiply zero by three”. Perhaps the Minister can suggest to his officials that they think of something better to do because if this is not a job creation scheme, I do not know what is. Apart from that, I will be pleased to hear the Minister’s response to my comments.
I wonder if the Minister can answer a very simple question; if he cannot, perhaps he can write to me. If people arrive here by plane, train or ferry who have not got permission to enter the country, is it possible for the carrier to send them straight back to wherever they came from without them getting any recourse to the immigration procedure?
The Minister has explained the purpose of the regulations, which, as I understand it, is to require carriers to provide advance passenger information and seek authority to carry to this country certain foreign national passengers specified in the scheme. As the Minister has said, the regulations also make carriers liable to a penalty of up to £10,000 if they carry a passenger without seeking authority when required to do so, or if they carry a passenger for whom authority was denied. The people for whom prior authority will be required will be those who pose a known security or immigration control threat, and the documentation indicates that through doing that it seeks to reduce,
“the probability of a terrorist attack on an aircraft bound for the UK”.
As I understand it, the Government’s estimate is that the exercise of this power to refuse a carrier authority to carry a specific passenger will be likely to occur on only a limited number of occasions a year. Of course, that is not the same as the number of times an airline will need to seek authority. Can the Minister say a little more about the process? I take it that it involves the airline providing details of foreign nationals on each flight to the UK before the flight leaves the point of departure—that is, the names of all foreign nationals on that flight—although perhaps the Minister could clarify that. As I understand it, the air carriers involved are likely to be issued with an IS72 form.
And that will be for some or all of their routes. In the hope that it does not breach national security, can the Minister say a little more about the considerations that would determine whether an airline was going to be issued with an IS72 form?
Queries have already been raised about the length of time it will take to give authority, and I appreciate that that is dealt with in the documentation. But what is the maximum length of time it is expected to take for authority to be given one way or the other to an airline? And is one to assume that until that authority has been given or refused, the flight concerned cannot leave its point of departure for the UK?
Finally, I have one question about the fine of up to £10,000. How will the Secretary of State decide what level to impose? Will there be clear criteria laid down which all occupants of the Secretary of State’s position over the years will be required to adhere to? Or will it be an entirely subjective decision with the approach potentially varying from one Secretary of State for the Home Department to another?
That is a very interesting question given the range of Home Secretaries under the previous Government. I will have to come back to it at the end of my remarks.
First were the questions put by the noble Lord, Lord Berkeley, about the purpose of the regulations. I can give him assurance that, although the risks are pretty small, it is all about security. As I said in opening, the objective is to enhance the protection of aircraft flying to the United Kingdom and to prevent certain individuals from arriving here and doing harm on board the aircraft or on arrival in the United Kingdom. The purpose is to prevent such individuals boarding aircraft to the United Kingdom in the first place, both for the protection of that airplane and of the United Kingdom.
The noble Lords, Lord Rosser and Lord Berkeley, asked about the process and how quickly the airlines would get a response. Our aim is to give a response to the airlines within 15 minutes, which is relatively easy with modern communications. Airlines are required as of now to submit passenger information no later than 30 minutes before departure. We encourage airlines to provide that earlier if they possibly can but we are offering an assurance that we will be able to respond within 15 minutes.
The noble Lord, Lord Berkeley, also had some concerns about the consultation. He cited the fact that there was one response from a member of the public. I am very grateful that at least one member of the public put their name forward.
The noble Lord says that it was not himself. This is one of the problems with consultations; not necessarily everyone with an interest responded. I can say, with regard to the important people in the airline industry, that we had respondents from three representative groups with a total membership of 161 different airlines. I cannot remember how many airlines there are in the world, but that number probably means that most of those who have an interest and who had concerns about this made an effort to respond.
The noble Lord, Lord Rosser, asked about IS72s. These are being rolled out across carriers and ultimately we envisage making sure that they are served on all of them, but that is not the case at the moment. He also asked whether imposing fines—as the order says, the level is up to £10,000—was purely a matter for the Home Secretary. The important thing is not the level of fines; obviously, for some of the big airlines a fine of £10,000 is neither here nor there, although I imagine that if there were a lot of fines they might begin to worry about them. We want to work with the airlines and prevent harm to their aircraft and to the UK. I think that I can say to the noble Lord that fines will be imposed only in fairly extreme circumstances.
If I may consider the matter of the level of the fines, which was the other matter that he asked about, I would prefer to write to him. As I said, though, at the moment there is a fairly free discretion that might allow, thinking of the different sorts of Home Secretary that we had between 1997 and 2010, for a fairly broad range of penalties being imposed.
My noble friend Lord Bradshaw also asked a simple, straightforward question: if a passenger is refused leave to enter the UK, is the carrier responsible for removing them from the UK? I assure him that that is the case. Whether or not the passenger has any appeal rights will depend on the circumstances of the case itself.
On this occasion, I think that I have answered every single point that the noble Lord, Lord Rosser, and other noble Lords have put. However, I see that the noble Lord, Lord Berkeley, wants to intervene again.
I am grateful to the Minister for his explanation of the purpose, because it is important that we understand it. However, I then said to myself, “Well, if people are going to do harm, they can come in by ferry or small boat or across the land frontier from Ireland, and can still do harm in this country, although they’d have more of a job in sorting out an aeroplane because they haven’t got an airport”. Ours is not a completely secure boundary from that point of view. I am assuming that the real purpose of this is the problem of the aircraft itself, and I support that.
My Lords, obviously we have certain advantages in that we are an island entire unto ourselves—I think I could probably quote a bit more from John of Gaunt’s death speech in “Richard II”. There are easier ways in and harder ways in. We will continue to look at all different routes and at what is possible—what we can and cannot do. Airlines are important. That is why we are doing this.
Perhaps I could ask the Minister one more question in the light of the response he gave. I wonder whether I heard that correctly. He confirmed that it was the case that an IS72 would be issued to some carriers, which might apply to all or some of their routes. Did he go on to say—or did I mishear this?—that eventually it might be applied to all carriers? If that is the case, would it then become in effect a blanket requirement for every carrier flying people into the UK?
Police and Crime Panels (Modification of Functions) Regulations 2012
Considered in Grand Committee
My Lords, I will come to the regulations in a moment. First, I will set the context and talk about police and crime panels more generally. The introduction of directly elected police and crime commissioners is the most significant policing reform in a generation. It was set out in the coalition agreement and is now enshrined in the Police Reform and Social Responsibility Act. Forty-one directly elected police and crime commissioners will take office across England and Wales on 22 November this year, having been elected by the public the week before. The first commissioner is, of course, already up and running in London: in January 2012, the Mayor of London took over responsibility for oversight of the Metropolitan Police.
The Act lays out the framework for the strict checks and balances that will be fundamental to the reform. A key element of this is the introduction of police and crime panels, comprising local councillors and independent members. Panels will be established in every force area and will undertake an important scrutiny function, providing both support and challenge to police and crime commissioners as they perform their duties. It is vital that there are no barriers to panels being established. Every force area must have a panel, with arrangements in place to ensure that police and crime commissioners are appropriately scrutinised once they are elected in November.
I turn to the secondary legislation that is intended to provide this safeguard, which is the subject matter of today’s debate: that is, the regulations before us. They provide that, where a local authority defaults on its duty to nominate and appoint one or more councillors to the police and crime panel, the authority will no longer be required to agree the arrangements that govern the establishment and operation of the panel. As we have constantly emphasised, local leaders, not politicians or bureaucrats in Whitehall, will know what works best for them. Local negotiations are critical and the Act requires that all local authorities across the force area should work together to establish and maintain their panel, including agreeing panel arrangements and membership.
We understand that local government is rising to this challenge and we anticipate that panels will be established in all areas across England and Wales. However, in the event that a local authority chooses not to engage or is deliberately obstructive, it is important that it is not able to frustrate the efforts of the remaining local authorities in that force area to establish the police and crime panel. To this end, the regulations provide that where a local authority defaults on its statutory duty to nominate and appoint one or more councillors to the police and crime panel, that authority will no longer be required to agree the panel arrangements. This will allow the remaining local authorities to establish a police and crime panel and, crucially, will ensure that panels are in place in time for the arrival of the police and crime commissioners in November.
The regulations have been developed by the Home Office in consultation with key stakeholders representing those who will be affected by the proposals set out in the regulations. The regulations provide clarity and necessary safeguards while minimising bureaucratic burdens and central prescription relating to the panels. They will help ensure that police and crime panels are established later this month and that they are in full flow by November, in time to provide vital support and scrutiny to the new police and crime commissioners when they take office.
In conclusion, as I said earlier, Parliament has spoken on the police and crime commissioner model. The Government’s focus is now on making the model a reality and maintaining progress in local areas. The regulations before us are an important part of the legislative jigsaw that will make this happen. I commend them to the Committee.
My Lords, the purpose of the regulations is to stop a defaulting local authority from preventing the making of panel arrangements. This is understandable and should be supported. However, there are two issues of detail that I would appreciate the Minister’s clarification of in order to avoid doubt.
First, the Secretary of State has the power to nominate and appoint the appropriate number of members in the event of a failure by a relevant local authority to exercise its power to nominate or to appoint. It would be essential for the Secretary of State, in exercising this duty, to have due regard to the opinions of the other local authorities and to maintain due political and/or geographical balance in making such appointments. I say that because during the passage of the Bill there was significant discussion about the importance of geographical balance and political balance and, where there are two-tier authorities, of lower-tier councils having representation on the panels.
Secondly, will the Minister clarify the meaning of the words in paragraph 2:
“In the case of a multi-authority police area, all the relevant local authorities, with the exception of a defaulting local authority … must agree to the making or modification of the panel arrangements”?
I seek clarification of the words “must agree”. Do they mean that the relevant local authorities are compelled to agree by the decision of the Secretary of State—that is, they must agree to what the Secretary of State wants—or do they mean that only with the agreement of those authorities can the panel arrangements proceed? I took the Minister to mean that it was the latter, but I seek confirmation of my interpretation. If it is the former, I seek the Minister’s reassurance that due regard will be had by the Secretary of State to full consultation with the remaining local authorities and balance being secured in any nominations or appointments that the Secretary of State deems it necessary to make.
My Lords, the Minister has explained the reasons for the order. I will be interested to hear the response to the two points that have been raised. On the second one, where reference is made to the wording,
“In the case of a multi-authority police area, all the relevant local authorities … must agree to the making or modification of the panel arrangements”,
it cannot be a requirement that they must agree or presumably the order would not be necessary, because the defaulting authority would not be able to block it. That would be my interpretation, at least, but of course it is what the Minister says about the Government’s interpretation of the wording that counts.
I have a couple of further points. Will the Minister confirm that the Local Government Association does not see any difficulties in implementing the order as it stands? I take it that this is, let us just say, to clarify certain wordings in the Police Reform and Social Responsibility Act.
The Minister made reference to police and crime panels. We have doubts, which we expressed during the passage of the Bill, about the extent to which they will be any meaningful check on the exercise of his or her power by the police and crime commissioner. Do the Government intend to monitor the development of the effectiveness of these panels when they are operational? Will it be their intention to brief Parliament on the findings of any monitoring exercise that they carry out if it is their intention to do so?
My Lords, a number of questions have been put to me. First, I shall deal with those asked by my noble friend Lord Shipley. I can assure him that, yes, the Secretary of State will take note of views from other local authorities and will want to take account of political and geographical differences. That is the point behind what we are trying to set up in these authorities. The noble Lord will know as well as I do how police areas vary very much from authority to authority.
My part of the world, Cumbria, has a county council and six regional councils. Thames Valley Police has something rather complicated with, I think, 18 authorities, which are all single tier. I cannot remember whether I am right on that. However, it is very different from the traditional county district. In areas such as the noble Lord’s in the north-east, there are other set-ups. Obviously, we will want to take account of political and geographical differences. My noble friend’s second question was about what was meant by the words “must agree”. As regards the second part, obviously it is only with the agreement of all the local authorities, as he said.
The noble Lord, Lord Rosser, asked whether the LGA had any concerns. I can assure him that, as always, it has been closely involved in the development of the policy and regulations, and is working with us very much on the transition programme. As regards any monitoring of the effectiveness of the panels, I do not believe that that is a role for central government. I believe that local authorities will be key to ensuring the success of panels. If those panels turn out to be toothless, or whatever, it will be for local authorities to challenge that. I think that the noble Lord and others will be the first to raise their concerns should that be the case.
My Lords, perhaps the Minister can clarify his answer to the noble Lord, Lord Shipley, about political balance. Is he talking about the political balance of the entire police force area or of the defaulting authority? As I understand the construction of the police and crime panels, there is one representative from each authority and the purpose of this order is to deal with a situation in which one local authority has failed to put forward a suitable nomination. Is the intention under those circumstances that the Secretary of State will appoint someone to achieve some form of political balance across the whole area or simply to reflect whatever is regarded as the political majority within that particular local authority area? They are very different things.
My Lords, we are trying to achieve some sort of balance across the whole area of panels covering a police force. I can think of some areas where every local authority is Labour or every local authority is Conservative. That does not mean that one would want every member of the panel to be Labour or Conservative—to take those two extremes—as obviously a vast number of voters would not be represented. We hope that there will be negotiations between local authorities, even if—dare I say?—some Tory authorities want to push forward a Labour candidate for the panel to make sure that overall, throughout the entire area, there is a proper balance that represents the views of the electors of that area. That might be despite the authorities being red in one case or blue in another. Does the noble Lord follow what I am getting at? We are trying to achieve genuine cross-party representation with a balance that represents the constabulary in a proper manner.
I am grateful to the noble Lord for that clarification. I am not sure it completely helps me. In a two-tier area, with which he is familiar, you will have a county council that will be elected on a specific date. You will then have district councils either elected in thirds or possibly on specific dates but not the same date as the county council. Are we talking about a political balance that relates to the county or to the districts? They will not necessarily be the same thing—they might be by chance, but not necessarily.
The Local Government Association spent many happy years devising a system that is supposed to balance elections held at different times and the different status of counties, districts, unitary authorities and so on. That sort of formula might be the approach that is taken. But I had understood that this legislation did not necessarily prescribe for political balance but simply for area balance.
I do not want to be overprescriptive on these matters, particularly as every authority varies quite dramatically. I will use my own county, Cumbria, as an example because I happen to know it well. Cumbria County Council coincides with the police authority and so it is quite an easy one to do. There is a county council that has elections every four years. There are six district councils, one or possibly two of which have an election every four years while the other four have elections in the three years when there are not county elections. So everyone is electing at different times in different ways. All we are trying to do is ensure that local authorities act together to try to produce something that is reasonably practical. Possibly the model that the noble Lord is suggesting is not a bad one. He was taking it from the Local Government Association. We are not demanding anything absolutely precise; we are just trying to make sure that, as far as is reasonably practical, all views can be taken into account.
Can I just explain further my concern about political balance? There are existing committees, joint boards and so on that cross council boundaries and there are clear rules that apply to political balance in those cases. I hope that in the regulation it will be made absolutely clear that one-party control of panels would not be acceptable, even if all the councils in a given geographical area belong to one party.
That is what we are saying in the regulations. As far is practical, we want to make sure that there is this cross-party control. This does not happen in Cumbria, but even if all six councils happened to be Labour-controlled, we would not envisage that all the members of the panel should be Labour. We should get the appropriate balance that broadly reflects how people voted. The same will be true in the north-east and here, there and everywhere. It is balance—a word that I have been using a great deal since I came to the Home Office—that we are seeking, and balance is not just in the regulations but in the Act itself, set down there in letters of stone.
Further Education Institutions and 16 to 19 Academies (Specification and Disposal of Articles) Regulations 2012
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Further Education Institutions and 16 to 19 Academies (Specification and Disposal of Articles) Regulations 2012
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments.
My Lords, as you know, the Government are committed to improving standards of behaviour of young people in schools. An increasing number of young people of school age are being educated in colleges. We believe that they should have parity of treatment with their peers in schools.
Your Lordships will be aware that powers to search students without consent, and the list of prohibited items that students can be searched for, were introduced by the previous Government in 2007. The list then comprised knives, guns and weapons, and was extended in 2009 to include stolen items, illegal drugs, and alcohol if the student is under 18.
The Department for Education has recently extended by regulation the list that applies to schools to include tobacco products, fireworks and pornography. We are now doing the same in further education and sixth form colleges so that teenagers, and their parents, will have the assurance that expectations of behaviour will be the same, regardless of the educational institution attended.
While seeking to treat all under-18 year-olds equally, we should not impose on the civil liberties of adults. Colleges, particularly further education colleges, provide for a wide age range of students, and the majority of these are adults. Common sense, if nothing else, tells us that searching adults for cigarettes is an unwarranted intrusion on their privacy. This is why only students aged under 18 can be searched for these items, which is already the case for searches for alcohol.
I will set out briefly what these regulations mean in practice. Members of college staff can already search students and their possessions for knives and other weapons, illegal drugs and stolen items, irrespective of the student’s age. They can also search for alcohol if the student whom they believe possesses it is under 18. We are now seeking to add tobacco products, pornographic images and fireworks to this list. Like alcohol, they are only prohibited for students under 18.
Your Lordships will be aware that new provisions introduced by the Education Act 2011 also enable searches to be made for any item where there is reasonable belief that it has been, or is likely to be, used to cause an offence or cause harm or damage to property. Noble Lords may ask, therefore, why we need to specify further specific items for which a search may be undertaken. The answer is because of the substantial numbers of young people now being educated in colleges for whom these items are either harmful or illegal.
I am told by the Association of Colleges that in the previous academic year, 2010 to 2011, there were 911,000 students aged 14 to 19 being educated in colleges, including 58,000 14 and 15 year-olds. Of these, some 700,000 were full-time students and more than 200,000 were part time. Some of the youngest part-time college students will also be attending school. These figures do not include apprentices under 18, whose numbers are likely to increase following the recommendations of the Wolf report.
The Government’s coalition agreement promised to,
“give heads and teachers the powers they need to ensure discipline in the classroom and promote good behaviour”.
As I have already said, we believe that all children should be treated equally, which is why behaviour and discipline policies concerning colleges mirror those for schools as far as is practicable. This view is supported by the duty of care that colleges have towards the children whom they educate, as set out in Section 175 of the Education Act 2002.
Smoking is harmful to the health of both adults and children but, in making tobacco products a prohibited item for under-18s in colleges, we are reflecting Parliament’s view that children require extra protection against them. The Government are putting in place strategies to prevent children from taking it up. It is illegal to sell tobacco to under-18s, and the Department of Health recently imposed a ban on larger shops and supermarkets displaying tobacco products. But while we can try to protect children from the harmful effects of smoking, it is up to adults to decide for themselves whether they smoke, and it would be neither appropriate nor proportionate to make tobacco products a prohibited item for them.
As regards fireworks, it is illegal to sell fireworks to under-18s and for them to possess fireworks in a public place. It is not unreasonable, therefore, to prohibit under-18s bringing into colleges something which they are not legally allowed to possess and which they may not be sufficiently experienced to handle safely.
Pornography covers a wide spectrum of sexually suggestive and explicit material available in a variety of media, including printed matter and images stored electronically. While adults should be allowed to decide for themselves what they choose to read or view, children should be protected from exposure to material that is inappropriate, distressing or morally corrupting.
The conditions for searching students for these items remain unchanged. A search has to be undertaken by a member of staff of the same sex as the student being searched and in the presence of a witness of the same sex. The only exception to these conditions, introduced by the Education Act 2011, is when the member of staff has a genuine belief that there is an imminent danger of serious harm, to the student or anyone else, if the search is not carried out immediately. In this case, and in this case only, a search may be carried out by a member of the opposite sex and without a witness present.
Of course, we expect college staff to be sensitive to individual students’ circumstances when deciding whether to carry out a search. We know that colleges include students with special education needs, such as autism, for whom a search might be particularly distressing and, in collaboration with the Association of Colleges, we are preparing guidance on the conduct of searches which will be available later this year.
Colleges have a power to carry out searches for prohibited items, not a duty. College principals can therefore choose whether to exercise this power depending on their college’s individual situation. Where they do, they can be confident that they are supported by legislation. I beg to move.
My Lords, noble Lords will have noticed that we are somewhat embarrassed on this side because our spokesperson is not here. For the sake of completeness, if it helps, I can say that I am persuaded by what the Minister has said today and we are therefore prepared to support the order.
My Lords, I am grateful to the noble Baroness for being here and for saying that. I was aware that this issue has already been discussed in another place and that, apart from one or two points that I have been able to pick up on in my speech, we were in agreement. I feel that this is one of those times when this is okay. As I have said, the extension of the existing legislation will provide young people and their parents with the reassurance that they will have equal treatment regarding expectations of behaviour, regardless of the education institution that they have attended. We believe that it is important that all students at school age are treated equally. This is particularly so at the moment because of the increasing numbers of younger students in colleges. I trust that noble Lords agree—indeed, I know that they do, for which I am extremely grateful.
Legislative Reform (Annual Review of Local Authorities) Order 2012
Considered in Grand Committee
My Lords, this draft legislative reform order seeks to remove the unnecessary bureaucratic requirement on the Chief Inspector of Education, Children’s Services and Skills annually to review and rate the performance of each top-tier local authority in England in relation to its children’s services functions. The process is simply an amalgamation of other inspection evidence and data, rather than an inspection in its own right. My honourable friend the Parliamentary Under-Secretary of State for Children and Families announced in December 2010 the Government’s intention to repeal this requirement, imposed under Section 138 of the Education and Inspections Act 2006, at the earliest legislative opportunity. The draft order would effect that repeal.
Ofsted’s children’s services assessment is a remnant of a more centralised local government performance management framework and formed part of the previous Government’s comprehensive area assessment regime, which drew together separate assessments from other inspectorates including the Care Quality Commission, HM Inspectorate of Constabulary, HM Inspectorate of Prisons, HM Inspectorate of Probation and Ofsted. Although the annual assessment was intended to provide the general public with an independent judgment of the performance of their local council in respect of children’s services, there is no evidence to suggest that the general public engage with the process. The assessments and the associated bureaucracy are also not valued by local authorities themselves, with the Local Government Association suggesting their termination and directors of children’s services making it clear that they do not find the process helpful.
The repeal of Section 138 and the resulting removal of the requirement to undertake annual children’s services assessments will eliminate an unnecessary regulatory burden on both Ofsted and local authorities. It would bring a cost saving to Ofsted of between £1.3 million and £1.7 million per annum. It would also bring cost and administrative savings to local authorities, which the Association of Directors of Children's Services has said are “unquantifiable but … not insignificant”. The same organisation said of removing the requirement to conduct annual children’s services assessments that the benefit should not be understated. Indeed, it is not only the local authority that would like to see the requirement removed. The NSPCC stated in its response to the consultation on the use of a legislative reform order to repeal Section 138 that it was,
“not aware of any evidence to show that the annual assessment process has had any impact on the protection of children”,
and that it is,
“too superficial to add anything of real value to the inspection regime”.
I should add that the repeal of Section 138 would not affect the wider inspection of local authority children’s services. Ofsted will continue to inspect all services covered by the children’s services assessment, including child protection and safeguarding, looked-after children’s services, fostering and adoption services, schools and early-years provision. Indeed, Ofsted has recently introduced a new universal child-focused inspection regime for local authority services for the protection of children. A similar new inspection regime for local authority fostering, adoption and looked-after children’s services will follow in early to mid-2013.
The new inspection regimes will focus more closely on front-line practice than previous inspection frameworks and, particularly in relation to adoption services, will raise the bar for what constitutes good or outstanding practice, which will more effectively help drive improved services for vulnerable children. Ofsted will also continue to make an annual report to the Secretary of State under Section 121 of the Education and Inspections Act 2006. Ofsted’s annual reports summarise the overall results of inspections conducted under the various different frameworks that span its remit. Such annual reports must also be laid before Parliament.
To sum up, this repeal is necessary to remove unnecessary and costly bureaucratic burdens from Ofsted and local authorities. I beg to move.
My Lords, I thank the Minister for her explanation of the order. She will know that the issue of the quality of services for children and young people provided by local authorities is particularly sensitive, not least because of the ongoing concerns about standards in children’s homes and the need for vulnerable young people to be protected. Therefore, it is crucial that if we are to change the inspection arrangements, we have to be satisfied that the new regime is an improvement on what has gone before.
I am unconvinced by some of the key justifications for these changes, which centre on the need to reduce the regulatory burden and the pressures on Ofsted to operate within a 30% budget cut. It is hard to envisage how a shift in policy from centrally designated and measured standards to local monitoring and accountability can work when dealing with the most vulnerable and powerless children and young people, who do not have a voice to demand quality services at a local level.
Nevertheless, I am persuaded that the inspection regime as it is currently composed and implemented is not achieving the objectives originally set for it. This seems to be the view not only of Ofsted and local authorities but, more importantly, as the noble Baroness said, of children’s charities, which clearly have the interests of children at heart. With this in mind, I will ask the noble Baroness a few questions about the proposed new inspection arrangements.
First, will she clarify what funds are being put in place to ensure a comprehensive inspection service is maintained, and reassure us that the changes are not being finance-driven? Secondly, will she clarify the start date of the new arrangements should the order go through? Ofsted has talked about putting in place the new inspections provision between May 2012 and mid-2013. Can we be sure that there will not be a gap in regulatory coverage in which poor practice could go undetected?
Thirdly, as the noble Baroness said, Ofsted has announced that it is working on a joint framework for multi-agency inspection of services for the protection of young people, including the Care Quality Commission, Her Majesty’s Inspectorate of Prisons and the probation service, to be implemented during 2013-14. Is the Minister concerned that this further imminent upheaval in local authority inspection arrangements might cause confusion and further bureaucracy? Can we be assured that the transfer of arrangements will take place seamlessly? Will she also clarify how the strengthening of the role of the Children’s Commissioner, announced by Sarah Teather yesterday, which will include the power to carry out investigations, will fit with the new multi-agency inspection arrangements?
Finally, and most importantly, will the Minister assure the Committee that once the order has been implemented, the replacement provision will be more comprehensive and more stringent, giving vulnerable children and young people the protection they should have a right to demand of modern, caring local authorities? I look forward to hearing her response.
My Lords, I am grateful to the noble Lady, Baroness Jones of Whitchurch, for the thought and consideration that she has given to these important issues. The questions that she posed all raise key points. I am pleased to be able to address them and, hopefully, to put reassurances on the record.
I start by stating clearly that the removal of the requirement on Ofsted to undertake annual assessments of local authority children’s services is intended, first and foremost, to reduce bureaucratic burdens on local authorities and Ofsted. In the context of the budget savings that all public sector organisations need to achieve, the repeal of Section 138 will have a secondary benefit of allowing these organisations to free up resources that would otherwise be spent on bureaucratic activity and redirect them to the front line where they will have the greatest impact on helping protect vulnerable children and young people, which is something that we all seek to do. Ofsted’s inspection budget, although reduced, will still run to some £167 million in 2012-13. It is also important to be clear that other inspectorates will also contribute resources to the new child protection and looked-after children inspection frameworks.
The noble Baroness also asked for further clarity on the start dates for the new inspection arrangements. This is another vital point; it should all happen seamlessly. Yesterday, Ofsted published for consultation its proposed arrangements for the inspection of services for looked-after children and care leavers, as well as proposals for the joint inspection of multi-agency arrangements for the protection of children. Ofsted set out scheduled start dates for the new inspections in the consultation documents. The looked-after children and care leavers inspections are due to start in April 2013, and the multi-agency child protection inspections will start in June 2013. Of course, until then, existing fostering, adoption and child protection inspections will continue.
On the noble Baroness’s third question, I can understand her concern to ensure that changes to local authority inspection arrangements will not cause confusion and generate bureaucracy. Obviously, that is something that we would wish to avoid when there are any changes in arrangements, particularly with such a vulnerable group as the one that we are talking about. That is certainly not the Government’s intention and I am sure that Ofsted will work diligently to minimise both these factors. The repeal of Section 138 is intended to reduce unnecessary bureaucratic burdens, and Ofsted has been explicit about its plans to minimise bureaucracy in its multi-agency child protection inspection consultation proposals. The move to unannounced inspections, too, is intended to reduce the bureaucracy that was generated as a result of the previous announced inspections of safeguarding and looked-after children’s services, so we hope that there will be improvements and benefits from what is being proposed on a number of fronts.
I also assure the noble Baroness that the removal of the requirement to conduct annual assessments of local authority children’s services will in no way impact on the protection of vulnerable children and young people. This was another point that she raised. The new inspection frameworks that Ofsted and its partner inspectorates are developing and introducing are intended to focus far more intensively on front-line practice than the frameworks that have gone before. This focus on front-line practice is intended to examine forensically the services being received by vulnerable children and young people to ensure that they are properly protected from harm and receive high-quality services from local authorities. The multi-inspectorate approach to the new frameworks is also intended to ensure that the vital contributions of other agencies, in particular to child protection, are appropriately reflected in inspection judgments.
The noble Baroness asked about the relationship between inspection and the new investigative role of the Children’s Commissioner. The proposed legislation to reform the Office of the Children’s Commissioner would include a requirement on the chief inspector and Ofsted to have regard to any matters raised by the Children’s Commissioner. Placing this requirement on the chief inspector and Ofsted is designed primarily to ensure that the views and interests of children within the Children’s Rights Director’s remit will continue to inform Ofsted’s work when the CRD’s functions transfer from Ofsted to the Children’s Commissioner. As a result of the “have regard” requirement, Ofsted will take account of the matters raised by the Children’s Commissioner when carrying out inspections under its various frameworks. I hope that this provides reassurance about the fit between the Children’s Commissioner’s strengthened role and Ofsted inspections, and that the noble Baroness will see that these things have been thought through thoroughly.
I hope that the noble Baroness will also be reassured that the new inspection frameworks that Ofsted will introduce are intended to be more stringent and to raise the bar in our expectations of local authority services for the most vulnerable children and young people in our society. The repeal of Section 138 is intended to help remove bureaucracy and allow both Ofsted and local authorities to refocus their resources on the front-line services that contribute to helping vulnerable children and young people.
I hope that I have addressed all the noble Baroness’s questions. If any are outstanding, I will write to her. With those assurances, I commend the order.
Public Bodies (Child Maintenance and Enforcement Commission: Abolition and Transfer of Functions) Order 2012
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Public Bodies (Child Maintenance and Enforcement Commission: Abolition and Transfer of Functions) Order 2012
Relevant documents: 1st Report from the Secondary Legislation Scrutiny Committee, 1st Report from the Joint Committee on Statutory Instruments.
My Lords, the order was laid before Parliament on 23 April under the powers granted by the Public Bodies Act 2011. It provides for the abolition of the Child Maintenance and Enforcement Commission and the transfer of its functions to the Secretary of State for Work and Pensions. I am satisfied that this instrument is compatible with the European Convention on Human Rights.
Before addressing the order in detail, I emphasise that there is no intention to change the services currently delivered by CMEC when its functions are transferred. The promotion of financial responsibility and child maintenance, the provision of information and support and the delivery of the statutory service will all continue. However, it would be helpful to provide some background on CMEC and the proposed abolition and transfer.
CMEC was established by the Child Maintenance and Other Payments Act 2008 and took over responsibility for the child maintenance system in Great Britain. Its primary objective is to maximise the number of effective child maintenance arrangements in place for children who live apart from one or both of their parents, whether these are made collaboratively between parents through family-based arrangements, by court order or through the statutory scheme. To achieve this objective, CMEC has three core functions: promoting the financial responsibility that parents who live apart have for their children; providing information and support to help parents make effective maintenance arrangements; and providing an efficient statutory child maintenance service with effective enforcement.
CMEC currently has two delivery bodies: Child Maintenance Options, which provides a free and impartial information and support service, and the Child Support Agency, which continues to administer the two existing statutory maintenance schemes. Together they are staffed by some 8,000 committed and dedicated people but, despite their best efforts, CMEC does not properly achieve its key purpose. Noble Lords are well aware of the complexities, inefficiencies and poor IT that have been a well publicised feature of the existing schemes but, crucially, around half of children living in separated families do not benefit from effective child maintenance arrangements—that is more than 1.5 million children.
CMEC costs taxpayers £500 million a year, but at present the Government spend less than 10% of that on positively helping families to address relationship issues or helping them to work together for the benefit of their children. That is why the system needs reform, and that is what we are working towards. I know that there will be particular interest in the planned reform of the child maintenance system but I do not propose to dwell on those matters here. I will write to noble Lords soon, inviting them to a meeting to discuss our proposals in more detail.
The proposal to abolish CMEC was announced as part of the Public Bodies Bill review on 14 October 2010. The review’s overriding aim was to increase transparency and accountability as well as to cut out the duplication of activities. Three criteria were set out by the Minister for the Cabinet Office in the Public Bodies Bill review which determined whether a body or function should be delivered at arm’s length from Ministers. I am satisfied that CMEC does not meet any of these criteria because, first, it is not a technical or fact-gathering body that needs independence, nor does it require political impartiality to discharge its responsibilities, nor does it need to act independently to establish facts. CMEC performs an administrative function and the services that it provides should be managed within the Government rather than by a non-departmental public body.
Child maintenance is an important part of the Government’s central aims and objectives in supporting families, particularly the 3 million-plus children living in separated families. It is right that Ministers should be directly accountable and responsible for the operational delivery, strategic direction and policies relating to child support without an additional layer of external management, as currently exists with the CMEC board. As I have already mentioned, the current system needs reform, and the proposed integration into the Department for Work and Pensions will enable us to do that much better. In the longer term, efficiencies can be achieved and I am convinced that the change will enable a better service to be provided to parents and children.
In accordance with requirements of the Public Bodies Act, which this House requested, a consultation on the abolition of CMEC ran from 10 October 2011 to 3 January 2012. Only 11 responses were received, a rate that indicates that this really is not a contentious change. Indeed, five responses were broadly supportive of our proposals, either agreeing with or welcoming the change, albeit with some minor concerns. Three responses disagreed or asked for reconsideration. One respondent had no comments to make and another had misunderstood the consultation criteria.
The order was laid on 23 April 2012. Orders under the Public Bodies Act have a minimum 40-day scrutiny period, with a Committee of either House able to extend that to 60 days by resolution if it feels it is necessary. The order has been scrutinised by several committees within Parliament: in this House by the Secondary Legislation Scrutiny Committee, as it is now called; in the other place by the Work and Pensions Committee; and collectively by the Joint Committee on Statutory Instruments. None of those committees chose to trigger the optional 60-day scrutiny period.
The Secondary Legislation Scrutiny Committee reported on the order on 15 May and concluded that it increased direct ministerial accountability by reversing the provisions of the Child Maintenance and Other Payments Act 2008. In the other place, the Work and Pensions Select Committee held an evidence session on the draft order on 25 April, which the Child Maintenance Commissioner and the Minister for Disabled People attended. The committee raised a number of issues, including how CMEC’s current objectives and functions would be pursued, how its activities would be reported following the transfer and whether the transfer could be justified on the grounds of improving value for money.
Similar concerns were voiced during the passage of the Welfare Reform Act 2012, and we were able to provide assurances that the Secretary of State would continue to have in mind all of these matters. He already has sufficient powers to ensure that the department maximises the number of effective child maintenance arrangements and has strong incentives to do so. He also has sufficient powers to provide information and does not need legislation to set out objectives on information-sharing.
The commissioner and the Minister for Disabled People also confirmed to the committee that transparency and information-sharing would be improved as a result of the change, and I am pleased to repeat that message to the Committee. Our focus will remain on ensuring effective child maintenance arrangements and on publishing data that will enable success to be measured.
On 3 July the Delegated Legislation Committee in the other place considered the draft order. The Minister for Disabled People confirmed that we will continue to publish the same data reports as we do now, so that the effectiveness of arrangements can be measured and monitored. We will also use the biennial Understanding Society survey to gain a valuable overall picture across society of effective child maintenance arrangements.
Under the order, CMEC will be abolished and will no longer exist as a separate legal organisation. Staff will transfer from CMEC to DWP under the Cabinet Office Statement of Practice rules, and the transfer will be treated as a machinery of Government change from one department to another. Staff will retain their civil servant status, and staff terms and conditions will be protected at the point of transfer.
There will no longer be a separate CMEC board and Noel Shanahan, the current CMEC commissioner and chief executive, will become head of the operational business unit, to be called the Child Maintenance Group. He will report directly to DWP’s Permanent Secretary and will become a member of the DWP executive team. There will therefore be important continuity at the most senior levels of the organisation.
When this matter was discussed during the passage of the Public Bodies Bill, the intention was to form an executive agency similar to Jobcentre Plus within the department. However, since then all DWP executive agencies have been incorporated into the department to enable greater efficiencies to be gained, particularly in back-room functions such as IT, finance and corporate services. The intention is for the department as a whole to work as “one DWP”.
As I confirmed, there is no intention to change the services currently delivered by CMEC when its functions are transferred. The focus will remain on delivering child maintenance support, with the same staff continuing in similar roles to provide an effective service to parents. It is important to underline again that Ministers will not be involved in operational matters such as the day-to-day running of cases, in the same way that they are not involved in the day-to-day running of benefits such as jobseeker’s allowance or the employment and support allowance. That will rightly remain a matter for officials and, where necessary, tribunals. Nothing in the order changes that.
The abolition and transfer of CMEC is designed to increase effectiveness and achieve economies over the longer term. Most significantly, those managing the delivery of the service will no longer be at arm’s length from Ministers, who will be accountable and answerable to Parliament for performance in this area and for the ongoing reform of the child maintenance system. This will enable Ministers to manage the major reforms to that system and to work towards the goal of helping more parents to make the right choices in the best interests of their children by taking responsibility for their financial, emotional and social needs and remaining involved in their children’s lives even when relationships have broken down. I beg to move.
My Lords, I thank the Minister for his explanation of the order, which is to abolish CMEC and transfer its functions back to the DWP, where it will operate as a business unit within the department. As we have heard, CMEC has not been around for long; it was created by the 2008 Act but was an integral part of the reform of the CSA that broadly followed the recommendations of the Henshaw report. This was essentially the third attempt to make it fit for purpose after its flawed creation in 1991.
That third attempt—we have heard some of this from the Minister—included a simplified assessment system, based on gross income, to be provided directly by HMRC; an overriding objective to maximise the number of effective maintenance arrangements; the removal of the compulsion on benefit claimants to use the statutory system; the obligation to promote awareness of the importance of maintenance arrangements; the obligation to provide information and guidance to parents by the Child Maintenance Options service; new IT systems eventually facilitating the provision of just one statutory calculation system; and a range of strengthened enforcement powers. All this was placed under the control of CMEC, an NDPB and, unusually, a Crown one at that—there are only a couple in existence.
We acknowledge that the transfer of the CSA was not a popular decision among staff who were concerned about losing their Civil Service status, although terms and conditions were protected. Truth be told, it was not the only possible structure within which the CSA revamp could have taken place. At the time, though, it was seen as having the merit of being part of giving the CSA a fresh start and of having not only a dedicated operational management but dedicated board oversight to see that the range of objectives were progressed. This was seen as important for the efficiency of the fundamental assessment, collection and payment arrangements but also for the wider obligations of the promotion of child maintenance and the provision of information.
It is understood that the Government contend that each of the objectives of the revamp endure and that reverting to be a part of DWP will not change this; the Minister has pretty much confirmed that. It is contended that the abolition of CMEC will allow for greater ministerial accountability for child maintenance. Frankly, that is at best a marginal argument. It suggests that there are not clear lines of accountability between NDPBs and Ministers. These are generally through regular reporting but technically through the department’s framework agreement and, of course, through budget-setting. These provided a natural separation between operational matters and policy, and the oversight of the board was important in ensuring a balance of effort and resource going to the collection process and the support service.
The Minister will be aware that, as in the other place, we seek assurance that the removal of the explicit objective to maximise the number of effective maintenance arrangements does not mean that it will not remain the key objective. Can we understand what data will be routinely available to monitor whether this is so? There is a risk that this will get subsumed into broader issues around family policy with which we might entirely agree but where there is a loss of focus on this aspect.
Incidentally, I note that the order is to take effect soon. Would it not have been better to have any transfer at the end of a financial year? Will the Minister confirm that there are no adverse tax consequences of the transfer of property, rights and liabilities from CMEC to the DWP? Can we please have an update on the move towards a single statutory system of child maintenance? What is the latest timetable?
Specifically on the enforcement powers, can it be confirmed that the powers set out in the 2008 Act can be implemented equally as effectively by DWP as by CMEC? What is the timetable for bringing them all into effect?
We are not sure this move is necessary or the right one at this time but will not oppose it, although we will seek to keep up to date with progress under the new arrangements.
My Lords, I come to this discussion with some background knowledge of bodies being taken “in house” under the previous and present Labour Administrations in Wales. Accountability is crucial. The question we should ask is whether a body has the right purpose. In this case, the purpose is correct, in that CMEC provides a determined service and does not require the same flexibility of operation or fleetness of foot as, for example, an economic development body might need in attracting new investment into one’s country. However, the question of accountability remains. Any change of this sort works only if it provides a better outcome for customers at the other end and in terms of the services being provided. Does my noble friend the Minister agree that having a phone number for complaints, when last year there were 23,000 complaints, would not be a helpful way for the Government to proceed? Asking in a year or two whether there had been a certain level of complaint about the service and whether it had improved as a result would be the way to judge whether this is the correct move.
Additional funding for voluntary agencies and third-sector organisations to support this work was announced during the passage of the Welfare Reform Act. How does my noble friend see that dovetailing with the in-house operation? Will it deal with the level of change being anticipated? What relationship is there to be between those third-sector organisations and the department?
One of the criteria that always worry customers is, “Is there somebody who I can call or who I can contact who is dealing with my case?”. Will there be someone in the in-house regime who holds the file for a particular customer so that the customer can know who they will be talking to if they wish to make contact?
It would be to the advantage of the in-house service if other parts of the DWP were to provide supportive services. We know that people call CMEC at present with a variety of problems. They are not purely financial but relate to other sorts of service and support. Some of them are to do with local authorities; some are to do with caring responsibilities; and some are to do with work and so on. Can my noble friend indicate what range of on-call services the department will be able to provide to the new in-house operation? For example, data held under the universal credit system might be made available to people working in the new part of the department, thereby making things quicker.
At family breakup, a complex web of issues faces parents. What will be the scope of advice and signposting in the new regime? Will a sympathetic ear be available? Will there be someone who can provide a range of signposts to different services or make the connections if some of them are within the department?
I return to the issue on which I started: accountability. There will now be accountability to Ministers, but that accountability will be tested by Parliament. Does my noble friend intend to produce an annual report or regular update on performance in this area of work, so that noble Lords might be able to test whether the regime has worked effectively? Clearly, this service has not worked effectively over the years since its creation. It has caused a great deal of heartache for a large number of people. The ambition is to improve but we need to be able to test that improvement, and I wonder in what ways that will happen, apart from the normal scrutiny of the Minister through questioning. Perhaps the Minister could lay before Parliament some of the issues that have been successfully achieved or otherwise in data form so that we can make that judgment.
My Lords, first, I apologise to the Minister for having missed the beginning of his opening remarks. I am afraid that I misjudged the timings somewhat. In speaking to these regulations, I remind the Committee of my registered interests. In particular, although the Child Maintenance Enforcement Commission had a brief life, I managed for two of its years to be a member of its board, serving as a non-executive director until 2010, shortly after I entered the House. I also declare that I am a former chief executive of One Parent Families, now Gingerbread, to which I am grateful for the briefing.
These are small regulations to effect a major reorganisation. I want to ask the Minister a couple of questions, picking up some points made by my noble friend Lord McKenzie. When CMEC was set up by the Child Maintenance and Other Payments Act 2008, its primary objective was,
“to maximise the number of those children who live apart from one or both of their parents for whom effective maintenance arrangements are in place”.
The wording is significant. As the Minister knows, this does not refer simply to maximising the number of maintenance arrangements made through the statutory system but to maximising the number of arrangements in total. In other words, CMEC had a duty, which it took very seriously, to maximise the number of private maintenance arrangements alongside those undertaken using the statutory system. Given that, what assurance can the Minister give us that this objective will be taken on by the Secretary of State, to whom CMEC’s functions are being transferred? How will that be discharged? The noble Lord, Lord German, suggested that perhaps a report to Parliament might work.
Before CMEC was created, when the Secretary of State had responsibility for child maintenance, the Secretary of State actually issued targets and then reported publicly to Parliament on the extent to which those targets had been met—or not. That might be something that the Minister might like to take on board. Can he tell us if the Secretary of State would be willing to do that, and if not, what other mechanism is there for reporting to Parliament and for ensuring that Parliament can have some criteria for judging the report that is thus made?
The Minister, I am sure, will have read the report on CMEC by the National Audit Office of 29 February 2012, as well as the report of the Public Accounts Committee from April. In relation to the decision to charge parents for using the statutory maintenance service, the PAC report noted:
“A successful fee regime will depend on the Commission being able to deliver reasonable standards of service”.
However, it also said that because of problems with the service, there was a danger that parents would not want to use it. The committee noted:
“The risk is that parents who cannot agree private arrangements and do not trust the statutory system are left without effective child maintenance arrangements and that could impact on child poverty. The Commission should work with stakeholders to monitor whether more separated families agree their own arrangements and understand any service-related reasons for lower than expected applications”.
It also suggests that:
“The first monitoring report should be carried out six months after the introduction of fees”.
What is the Government’s response to that recommendation from the PAC? I apologise if the Minister mentioned that in the first five minutes of his opening remarks. Will the Government accept that recommendation and the timetable, and if not, by what other means are they going to address the concerns raised by the PAC?
Can the Minister give the Committee some assurances about the readiness of all involved for this transfer? The PAC report also noted that the commission’s plans to deliver the £117 million of cost reductions imposed on it by 2014-15 were “high risk”. It said:
“There is a £16 million funding gap for 2014-15 which could widen by some £3 million for every month the new IT system is delayed. A further shortfall of up to £30 million could arise in 2014-15 if projected fee income does not materialise”.
What assurances can the Minister give the Committee that the statutory service has adequate funding to deliver the service promised when the Welfare Reform Act was passing through this House?
Finally, I know that the Welfare Reform Act has made the decision to transfer this but can the Minister tell us what lessons the Government have learnt from history? The department has had the opportunity to see the CSA operating both inside and outside government. In bringing it back in, what lessons has the department learnt and how does it hope to avoid some of the very considerable problems the CSA had in the early 1990s?
My Lords, I am delighted to follow the noble Baroness, Lady Sherlock, because she said just about everything I had in mind to say. I concur with the important points that she made.
I am very pleased that the noble Lord, Lord Freud, offered us a meeting later in the year. That is part of his unique way of doing business and it is very helpful to the rest of us as we try to understand what is going on. I understand that he and his colleague in the other place are putting a great deal of work in to this important area.
I will stress—because it is easily forgotten—that the client group with whom we are dealing may be disproportionately affected by the impact of the austerity measures that the country faces. I am sure that the Minister and his advisers are already aware of this. As a board member of the Institute for Fiscal Studies, perhaps I could draw his attention to the analysis by James Browne that was published by the IFS for the Family and Parenting Institute in January 2012. It predicted an 8% net loss of income for working single parents and a 12% loss for non-working single parents. We are dealing with a particularly vulnerable client group here, and we all know that. The IFS analysis is useful as a reminder of the importance of getting it right. I know how concerned the noble Lord, Lord Freud, is about these vulnerable groups because he is doing a lot of work on universal credit to try to make sure that these issues are addressed.
In addition to the points addressed to the Committee by the noble Baroness, I will say that other NAO and PAC reports that came out earlier this year—particularly on client fund accounts and on CMEC’s plans to reduce its own spending, which was in an NAO report on 12 February this year—raised matters about which we should all be concerned, including the ability of CMEC to achieve its estimated £117 million savings between now and the fiscal year 2014-15. That is something I would like to put on the agenda for the meeting later in the year, which I would be very pleased to attend—if I get an invitation after this speech.
The NAO was also concerned about the plans to levy charges. I do not need to repeat the point that there is some disjunction between the early planning and the work that the NAO did in highlighting some of the gaps. This will have been worked on and I hope that there will be further and better particulars available. At any future meeting I would like to try to understand how much risk there is in the levying charges policy that is currently being publicly promoted, at least by CMEC.
I agree with the NAO analysis about planning for a 71% take-up of the new statutory system. I have no way of knowing the metrics, systems or processes that CMEC has for measuring that 71%. It is relying very heavily on that as an income stream from which it hopes to move forward. The Comptroller and Auditor-General, the NAO and the PAC were interested to learn more about that, and again expressed concerns. I will also reinforce the point about maximising payments. That is an important duty that will be lost. Any system, whether or not it involves annual reports, should underpin efforts to win back as much of that as we can in the circumstances. That would be useful.
Finally, we still expect a consultation on charging mechanisms. That is a very important piece of outstanding work in which the community, pressure groups and others to whom this area of public policy applies are particularly interested. Perhaps we could add that to the agenda of what now looks like quite a busy meeting some time in the autumn.
This is an important area. I am very ambivalent about this change but I can understand that the costs have to be reduced in a sensible way. I just hope that we are able to do that in a way that does not disproportionately affect the client group we are seeking to serve here. But I have trust that my noble friend Lord Freud is aware and alive to all these things. I hope that the Committee can look to him to give us reassurance, whether privately or publicly, going forward.
My Lords, as ever, there have been some very thoughtful and knowledgeable speeches. Why am I not surprised? I will set the context of the process we are going into in terms of consultation. I deliberately kept my speech very focused on this order. As we are all aware, there are a lot of issues around CMEC charging generally, which we will have a lot of time to address. As I said in my opening remarks, I plan to write to noble Lords reasonably soon. I made a commitment to involve noble Lords particularly in the charging process and the plans that we have. I said that I would do that at two points: first, at the outset in order to allow noble Lords to see plans at the beginning as we develop and discuss them and, secondly, before regulations are laid towards the end of the process as the debate has gone through. There is time outside the formal calendar in which to go through this.
I am conscious that when things are difficult—and in this area of child maintenance there is a lot of sensitivity and concern—an involved process is much better than just slamming a set of regulations on the desk. That is why I have done it in that way and have made some cuts. We could easily spend all night on this and I am trying to concentrate just on the core transfer.
There were quite a few questions from noble Lords on the reporting process and the data process. The group will be included in the DWP’s annual report and accounts. It will continue to publish a quarterly summary of statistics of child maintenance and the figures will be included in the biennial Understanding Society survey. We will respond to the question asked by the noble Baroness, Lady Sherlock, and the PAC through a Treasury minute, which will be published in the near future. I do not have a translation for “near future”, so we will have to go on the commonplace interpretation of what that means.
My noble friend Lord German asked about historic debt and our strategy. It remains a priority. We have a debt of £3.8 billion outstanding. We want to collect as much of that as we can and are using all the powers available to us to do so. He also asked about effectively co-ordinating family support services. A number of principles are involved here: we need to make sure that families have the right information when they separate and that they are encouraged to have a collaborative relationship. That, as noble Lords are fully aware, is a core part of the Government’s strategy here. In the main, services will be voluntary and community sector-led. That is why we have formed a steering group of representatives from the sector to inform our thinking and propose how best to evolve those services. My colleague, the Minister for Disabled People, Maria Miller, announced in January that £20 million was available to support this work and on 25 June she confirmed that £14 million of it would be placed in a new innovation fund to finance effective and innovative interventions. I will not go into that in any greater detail.
On the question about timetabling asked by the noble Lord, Lord McKenzie, the programme is extremely complex and we are focusing on achieving the introduction in late 2012. There is a lot of work to manage the programme time and cost. Ultimately, we need to introduce a service that works for our clients, so we will introduce a system only when it has been thoroughly tested. Indeed, if I am asked about the lessons of history, as the noble Baroness, Lady Sherlock, did, that is probably the most important one. The early introduction of an unready and inadequately tested system was one of the causes of why things went so badly wrong in 2003. I am not sure that I can think of many other lessons from history off the top of my head.
Actually, I would like to turn that around on the noble Baroness; I will accept a letter from her on the lessons from history, and I will pass it on and make sure that they are applied. I look forward to receiving that.
On my noble friend Lord Kirkwood’s question about how we will achieve the savings, we are talking about securing ministerial accountability—this is not about driving savings. The amount of savings from this measure is pretty modest: direct savings are probably running at about £500,000 a year, and that is due to changes to IT systems and one-off costs. We would hope to see longer-term savings from integrating services more deeply into the department. I think, and this point was raised by my noble friend Lord German, that there are some real opportunities here to get holistic support. The longer that I have been in this job, the more I have realised that bringing support together for people and families in trouble is the way to go. There is an opportunity for us to pull the services together in this context as well as in other contexts.
I am tempted to offer to write to the noble Lord, Lord McKenzie. I always feel that it is a triumph if I can get out without offering him a letter because I can answer all his very clever questions. I think that I am down to the one on adverse tax consequences. Although it is always difficult to prove a negative, I cannot imagine how there can be adverse tax consequences because we do something in the middle of the year, when they are both effectively Crown bodies. If that is a wrong tentative statement, I will commit to write, but I hope that I will have avoided any need to put pen to paper for him on this occasion; that would be one of my personal targets. This is about making sure that Ministers are fully accountable to Parliament.
So that the Minister does not have to commit anything to paper, will he deal with the question about the enforcement powers? There is a whole raft of them in the 2008 Act. Those are all presumably going to be taken over by DWP. Where is the department on bringing those into effect?
My Lords, the noble Lord is right: we just transfer those powers over. There is no change in them. As to the detailed timetabling of all that, we are preparing to show that to noble Lords. The easiest way is if I come to that, unless I have a miraculous answer—which I do not think that I have to this specific question. I will deal with that when we assemble, quite soon, on that issue. I will not write.
I close by reassuring noble Lords that ensuring that children get the support that they require, both financial and otherwise, when their parents cannot live together and ensuring that they have the best opportunity to thrive during their childhood is what this is about.
Social Security (Civil Penalties) Regulations 2012
Considered in Grand Committee
My Lords, I can confirm that, in my view, the statutory instrument is compatible with the European Convention on Human Rights.
These regulations support the powers introduced by Section 116 of the Welfare Reform Act 2012, which allow both the Secretary of State and local authorities to impose civil penalties in relation to benefit claims and awards in certain circumstances. That section allows for the amount of the penalty to be set by regulations. Our reason for bringing forward these regulations is straightforward. It is right that claimants should take responsibility for the information which they provide in order to receive benefit, or to notify us of important information affecting their entitlement. Claimants are in the best position to tell us of these facts and of these changes as soon as they occur. When you consider that £1.3 billion is lost each year as a result of claimants who fail to do this, it is clear that we have an immediate issue to address.
Introducing a civil penalty will help to make claimants more personally responsible for the overpayments they incur and encourage a positive change in future behaviour. We remain committed to tackling the intolerable financial loss through claimant error and the regulations before the Committee support that aim, the detail of which I will now explain.
In bringing forward these supporting regulations, we have set the civil penalty at £50 in all three cases where a penalty may be imposed. The amount of £50 was previously announced in government publications and was stated by me and my honourable friend in another place during the passage of the 2012 Act. I trust, therefore, that the penalty level is no great surprise today. In setting the penalty at £50, we aim to be tough but fair in our approach. It is also a significantly lower amount than the harsher consequences which would apply to those who commit benefit fraud offences. The penalty is directed at a failure to take proper care of a benefit claim, as distinct from fraud. We believe that £50 is an appropriate amount for the penalty level. It is high enough to encourage claimants to take more personal responsibility for overpayments incurred through their negligence as well as encouraging a positive behaviour change in any future dealings with the department. The penalty will be simple to calculate and easy for the claimant to understand and recognise. Providing for the same penalty to be imposed in all three cases where they can be imposed will allow for this.
I reassure noble Lords that we will always consider the individual circumstances of the case when deciding whether to impose a civil penalty. To be clear, we must tackle claimant errors which results in losing as much as £1.3 billion each year. This penalty will help us to achieve that. Those who continue not to take proper care of their claim in future will also risk incurring a £50 civil penalty on top of having to pay back the overpaid money. I beg to move.
My Lords, I thank the Minister for his explanation of these regulations. They have of course already been considered in another place. We do not object in principle to what is proposed, given that some £1.3 billion is lost through claimant error each year. I do not know if the Minister has an update on estimates of benefit overpaid through official error; if he does, it would be of interest to hear what that number is.
As we have heard, the civil penalty is set at £50 for each of three types of error, namely incorrect statements, failure to provide information and failure to notify changes of circumstances. So far as incorrect statements are concerned, they must have been made negligently and reasonable steps not taken to correct the error. In the case of disclosure of information and failure to provide details of changes of circumstances, there is the defence of “reasonable excuse”. It is therefore acknowledged that application of the civil penalty should always require a judgment to be made; the Minister confirmed that.
Can the Minister confirm first that, except in the case of housing benefit and council tax benefit, the judgment will always be made by Jobcentre Plus decision makers and not by contractors? The Minister of State in the other place confirmed that guidance would be available to staff, but we would be grateful if the noble Lord, Lord Freud, could say a little more about that guidance. We have discussed many times the situations of those with mental health conditions, especially those with fluctuating conditions, in connection with the issue of sanctions. The same issues must surely run for the issue of penalties. Can the Minister say specifically what the guidance is likely to cover in this respect?
The Explanatory Note says that DWP will,
“draw on the expertise of interested outside stakeholders to ensure that guidance, communication products and decision making processes are suitably tailored to meet the needs of the range of claimants”.
Might we be told what this has amounted to, to date?
In passing, we had a very helpful presentation on progress on universal credit earlier today. I did not spot anything flagged as part of the claimant process issues around the prospect of civil penalties in the various bits of information we had, but perhaps we missed it in that presentation.
The Explanatory Memorandum states at paragraph 7.7 that where a failure to disclose could cause an overpayment of more than one benefit,
“only one civil penalty will apply”.
What is the situation where the failure relates to an assessment of, say, jobseeker’s allowance and housing benefit? Prior to universal credit being introduced, the appropriate authority for the latter will be the local authority, not the DWP. How will it be ensured that only one civil penalty will arise?
We debated this during the passage of the Welfare Reform Act, but will the amounts collected in penalties accrue to the Treasury, to the DWP or to local authorities? If the latter, how will a single civil penalty be divvied up?
There was discussion in the other place during the passage of the Welfare Reform Act about the anticipated volume of civil penalties—in excess of 500,000—especially in contrast to HMRC data concerning parallel provisions. If this is right, it is a worryingly high volume and calls into question the real level of discretion that will be available in judging whether someone has been negligent or has failed to take reasonable steps to correct an error. What assessment has the department made of the time and cost involved in making these judgments? There must surely be an impact also on the volume of appeals. What does the Minister think this might be?
The provisions apply to the administration of council tax benefit also. As I indicated earlier, we are doing our best for the Minister to have its replacement inculcated within the universal credit through our deliberations on the government Finance Bill but, I am bound to say, some of our arguments are, unusually, falling on stony ground. Should council tax support be localised, the provisions of this order would presumably cease to have effect for local schemes, even the default ones. Presumably one would have to look to the powers in that Bill to see what alternatives might be available.
Because the universal credit is intended to be the great simplification, one would hope that that would make claims and associated issues easier to deal with and would therefore ease the circumstances in which these penalties might be applicable. However, that remains to be seen. We will not oppose these regulations.
My Lords, may I explore one item and ask a cheeky question at the end, related to the universal credit demonstration that some noble Lords were able to hear earlier on? Very welcome it was, too.
Paragraphs 9.1 and 9.2, which the noble Lord, Lord McKenzie, has already referred to, are about the guidance that is to be issued. In response to my questions to my noble friend about the way in which decision-makers behave, the answer has invariably been that we must encourage the empowerment of decision-makers. Of course, written guidance does not necessarily help people to use their discretion.
The other problem that is painfully obvious to many observers of the situation is that, when discretion is used, it may not necessarily be uniform throughout Jobcentre Plus offices. There have been a number of occasions, and some of these have reached the media, when decisions have been made on the basis of what may appear to be fairly flexible guidance but has been interpreted in a very literal way. If these penalties are to be most effective, then they are a weapon that has to be used with great discretion. Is my noble friend prepared to outline a little more about the nature of the work that will go on with Jobcentre Plus decision-makers to advise and empower them but also to train them in a method that does not simply consist of reading written materials from the department, and whether he has put in place a reviewing or monitoring mechanism—some way of judging whether that discretion is being used in a fairly uniform way? Nothing could be worse than if people were to rigidly apply rules in one office while next door someone was being treated with discretion and therefore differently. Noble Lords will know that it is difficult to strike a balance between discretion and uniform application. I wonder how that circle is being squared by the department, particularly in relation to paragraphs 9.1 and 9.2.
One of the problems found in the employment support allowance process is that claimants often fail to provide full evidence of their condition until perhaps after the decision has been taken and their appeal is on its way or reaches the tribunal stage. Does my noble friend see any use in the threat of these penalties that might assist people to come back earlier and give their full position and provide all the details in evidence that may be relevant to their claim up front in order that decision-makers might help to get the claim right at the first attempt?
This is a minor and very cheeky question. Under the universal credit, where real-time information is to be provided, is there a double banking system—does the claimant of universal credit also have to report these matters to the department? Is there a double check or, if there is a failure at one end of the system, will the claimant be blamed for what may have gone wrong in, say, information being inputted wrongly by his or her employer? Will any form of double-checking take place? Does the claimant stand any liability for what might happen in that respect?
My Lords, I shall try to deal with as many questions and to avoid writing as many letters as possible. The noble Lord, Lord McKenzie, asked about the latest figure on official error. The latest figure is £0.8 billion. As regards making sure that one civil penalty will apply, we have put in place processes for decision-makers to check whether a penalty has already been applied for the same failure or error resulting in the overpayment. Only the JCP and the decision-makers, PDCS, are dealing with the non-housing matters. The way in which we ensure that we do not get a double whammy with local authorities and DWP is for local authorities to apply their penalties only when the standard housing benefit or council tax benefit is the only benefit in payment. In that way, there is no possibility of an overlap.
We are drafting the guidance and we hope to share the final draft guidance with SSAC by the end of this month. We will look to share it with other relevant stakeholders at that time to take on board their comments. The guidance will cover the obvious examples of negligence, reasonable steps and reasonable excuses. As one would expect, there will be intensive training, which will explore definitions of the penalty criteria. I do not think that the figures have changed from the impact assessment that we discussed when we were looking at the Bill. The cost is £19 million over 2014-15. The appeals estimate, which we discussed, remains purely an estimate.
In response to my noble friend Lord German’s question on the difficult mix of discretion and consistency, it is important that we have clear guidance about what constitutes the penalty criteria. Each case will be individually considered by a decision-maker. They will have general duties, such as to look at only what is relevant and to explain their decisions to claimants. My noble friend’s idea had not occurred to me. He is more devious than me about using this process to make sure that we do not have different information going to decision-makers and later to tribunals. I think that I shall take that away and think about it, as it is rather clever. That is a design issue that we shall explore.
I say in answer to the noble Lord, Lord McKenzie, that we will monitor the new penalty to ensure that it is effective—and to what extent—and that there is equality of treatment. We will use evidence from a range of sources such as administrative data and wider data sets. In practice, one of the main success criteria will be that we impose fewer penalties as time goes by.
We talked in the past about the fact that we now have a framework for conducting trials much more coherently right through the system. Clearly, we will pick out the key behavioural impacts of different aspects of the policy. How sanctions will work in that area is something that we will look at with randomised control trials. It is a very obvious test and there will be mechanisms for conducting it. We will look at the results very closely, and rather earlier than at the results of other tests, once UC has come in. I hope that I have dealt with all the issues.
My Lords, I distinctly remember writing a letter to the noble Lord on this matter—and I really regret that I cannot remember what I said. So I will let my letter on the matter stand. Perhaps the noble Lord would look through his files. I have just received a note to say that penalty revenue will go into the Consolidated Fund. I remember writing that now; I laid it out in detail. If the noble Lord would like amplification on that letter, which was quite long, I would be happy to give it to him, perhaps over a cup of tea.
Yes, but in reality there will be a transfer one way and then a transfer the other way within the overall DEL settlement. There may be some minor timing discontinuities, but my officials in the DWP are extraordinarily well versed in discussing these matters with equally well versed Treasury officials and getting the flows of funds to work together—so not even tea on that issue.
As ever, noble Lords asked very informed questions. I hope that I have dealt with all of them and welcome the fact that there is general support in principle for the regulations. I commend them to the Committee.
Committee adjourned at 4.58 pm.