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Lords Chamber

Volume 740: debated on Monday 29 October 2012

House of Lords

Monday, 29 October 2012.

Prayers—read by the Lord Bishop of Wakefield.

Small and Medium-sized Enterprises


Asked By

To ask Her Majesty’s Government what additional funding to small and medium-sized enterprises, particularly in deprived communities, has resulted from the Funding for Lending scheme.

My Lords, the Funding for Lending scheme is not specifically targeted at particular regions or sectors of the economy; it is designed to incentivise banks to increase lending in aggregate, which will of course have a positive effect on the economy as a whole. The early indications have been encouraging but it is too soon to judge the impact of the scheme. The Bank of England will publish quarterly net lending figures for each participating bank from 3 December.

I thank the Minister for that Answer. However, the fact is that the Bank of England’s last quarterly report shows that the stock of lending to SMEs continues to decline. It also shows that the number of loan applications themselves is down. I note that only 50% of SMEs had ever heard of Project Merlin. Could the same lack of awareness of Funding for Lending be contributing to the problem? Do the Government know how many SMEs are aware of this scheme? What are the Government doing to make sure that they are aware of the scheme?

My Lords, the figures so far published do not take account of the impact of Funding for Lending, which only opened in August, and not least because it takes some time for loan approvals under the scheme to be finalised. I absolutely agree that promoting the scheme will be crucial. We are encouraged by the steps that the banks and building societies have already taken to do so, including double-page advertisements in national newspapers and promoting mortgage products very actively, not least through their websites. The Bank of England is administering the scheme but the Treasury is directly involved in monitoring it via a joint oversight board with the Bank.

My Lords, Funding for Lending is the very latest of a whole plethora of programmes announced by the Government to stimulate SMEs. But here is the truth: very little of the money is getting through to the SME community. Why is that? It is because the chosen method of distribution is through the high street banks, and their interest is more in stuffing their own balance sheets rather than advancing funds for SMEs. When will the Government realise that the banks are chronically risk-averse and ill suited to this important task?

My Lords, it is simply not true that the banks are stuffing their balance sheets as a result of this scheme. This scheme gives the banks incentives to lend, not to stuff their balance sheets. There is considerable evidence that the banks are offering loans to SMEs at significantly lower interest rates and offering new mortgage products. These are already beginning to generate new business.

Is the Minister aware that Rolls-Royce, in order to fund its suppliers, has lent them £500 million, because the banks are not doing so?

My Lords, it is a very sensible approach for large companies to provide credit down the supply chain. It is not just Rolls-Royce—many other companies are doing the same, and I think that they should be encouraged to do more of it.

My Lords, I agree with the Minister that the banks are lending to small and medium-sized business. However, they cannot get the money for progressing their businesses where they are situated. I have recent experience in visiting a number of small engineering companies which are being offered money to move and establish bigger premises but not to develop where they are. It is becoming quite a problem for such companies.

I do not think there is any general principle involved in that. The new products being designed under Funding for Lending would enable SMEs to get additional capital where they are. For example, RBS has introduced a new scheme under this programme that will cut the rate of lending by between 1% and 1.6% for small businesses and abolish arrangement fees for new loans. Those are not limited to companies that are moving but apply equally to companies which want to expand where they are.

My Lords, the scheme makes lending very attractive to banks because the cost of funding is remarkably low, but there are many situations where what is wanted is equity rather than loan capital. Will the Government review some of the changes to the EIS arrangements for providing equity, where the changes in loss relief and the latest FSE changes in marketing EIS are discouraging the raising of equity capital for small businesses under the EIS scheme?

My Lords, there has been a long-standing problem in small businesses raising equity in the UK. The EIS is one component in doing that. Of course, as we look towards next year’s Budget, we are reviewing all programmes that might offer any capacity to increase the flow of funds into small businesses.

My Lords, given that the ITEM club has just predicted that lending to SMEs by banks will fall to a six-year low this year, with 38% of applicants being rejected in quarter 1, and given that banks seem to be using money from the Bank of England to lend rather to homeowners with equity, will the Minister consider ring-fencing a good proportion of the Funding for Lending scheme funds specifically for SMEs?

My Lords, I think that a large proportion of these funds will be used for SMEs. That is why the banks have introduced new products specifically for SMEs following the introduction of the programme. I have already referred to RBS. Lloyds has done a similar thing and is reducing the interest that SMEs pay by 1%. Lloyds has placed double-page ads in some of the papers, which noble Lords may have seen. So the banks are directly targeting at SMEs a significant proportion of the funds that will now be available.

My Lords, given the urgent need for lending now, how soon does the Minister expect the first scheme to be in operation? Are the banks likely to offer 100% guarantees or will they require deposits?

The scheme is already in operation and the process under which the loans are approved is going through. I do not know whether the noble Lord meant 100% in respect of mortgages as opposed to loans but, for mortgages, the scheme is being made available for first-time buyers, particularly in respect of the Government’s new buy scheme.

Alcohol: Pricing


Asked By

To ask Her Majesty’s Government, in the light of the recent Panorama programme about the scale of alcohol-related illness among the over-65s, when they will make a decision regarding plans for a minimum price per unit of alcohol.

My Lords, it is clear that harmful consumption of alcohol affects all age groups, not just the over-65s. The alcohol strategy published earlier this year sets out the Government’s commitment to introduce a minimum unit price for alcohol. The Government will consult on this and a number of other proposals in the strategy this autumn.

My Lords, I thank the Minister for that Answer. I should declare an interest. I was the journalist who made the “Panorama” programme. Last week, there was an indication that the plans to announce the minimum pricing of alcohol were being delayed and considerable concern about that was expressed by, among others, the BMA. Will the Minister press the Government to move urgently on this matter to stop wholesalers who are flooding the market with cheap ciders and cheap vodkas, which do a great deal of damage?

Although I missed the programme the first time around, I have been able to view the noble Baroness’s programme on iPlayer, and I congratulate her on the way she drew graphic attention to the issue. She makes a very good point. We are not dragging our feet on the issue, but we want to go out for consultation with all the details of an impact assessment to go with it, which will help inform the debate about at what level the minimum unit price should be set.

My Lords, I declare my interest as an adviser to two drinks companies. Details are in the register. Is the Minister aware that the BBC has now withdrawn the programme from its iPlayer service, having acknowledged that in the original broadcast wildly inaccurate and exaggerated claims were made about the likely impact of minimum pricing? Can he assure the House that when the Government finally come to their conclusions on the issue, it will be genuinely evidence-based policy?

I thank the noble Baroness for drawing that to the House’s attention. I saw it this morning, so it must have been a pirated copy or something. I apologise if I misled the House, but, none the less, the programme did contain a particular inaccuracy about the calculation of the number of deaths that might be saved by a minimum unit pricing policy. Of course, that is the whole point of getting impact assessments right: so that we can consult on facts. But that does not reduce the effectiveness of the programme.

My Lords, having regard to strong results from Canada and from the Sheffield University research, which seem to indicate a very strong link between prices and the beneficial effects on hospital admissions, crime, absence from work because of alcoholism, and unemployment due to alcoholism, will the Government also consider a minimum price per unit of 50p, and will they link that with banning discounts, because the joint effect is all the more beneficial?

The consultation is likely to cover both those elements—when I talk about discounts, I mean the multi-buy type of arrangement. That may well be included. The Scottish Government have already come forward with the 50p figure, but there could be different figures. We need to ensure that we are getting the maximum benefit without unnecessarily impeding the business of retailing alcohol, which is a perfectly legitimate one, or the pleasure that most people get from restrained consumption of alcohol.

My Lords, as a contributor from time to time to the BBC, I ask the Minister to recognise that occasionally the BBC withdraws programmes from iPlayer on the basis of just a single complaint, often not really related to the content of the programme. That may be important in the case of my noble friend Lady Bakewell.

I think I have made it clear that that does not, in my view, detract from the central thrust of the noble Baroness’s Question and, indeed, the programme: that excessive consumption of alcohol can be harmful and that we should take what measures we can to restrain it.

My Lords, in acknowledging that there is a huge problem regarding older people and their intake of alcohol, will the Minister assure us that if the Government go through with these plans, the treatment that older people need to give up their habit will be at the same level as that for younger people with alcohol-related conditions, particularly given the change in the law since the beginning of October, which bans discrimination on the ground of age?

The noble Baroness raises an interesting question, which arose in the programme: a lot of people drink because they are lonely. The Government’s alcohol strategy is part of a broader strategy that needs to take into account the social support that is given to older people and indeed, if I may also say so, the rehabilitation of people who have had a lifetime of drinking to excess.

As the BMA consistently supports the moderate consumption of red wine, how will this measure affect those retailers who normally sell by the case, particularly, though not exclusively, in the wine trade, the unit price thereby quite often being considerably below the normal price of a single bottle, whether that be wine or beer?

My Lords, is it true that more over-65s are admitted to hospital with alcohol-related problems than 18 to 25 year-olds? If so, what are the Government doing about this?

My Lords, that was one of the assertions in the programme—that the number had indeed increased—and it is a matter of concern. Although we have amused ourselves with this issue to some degree, there is a serious context in which we are discussing it.

My Lords, at the risk of spoiling the consensus, will my noble friend explain how it can be right to make responsible drinkers pay more for their drink in order to deal with a problem that is perhaps best addressed specifically rather than by putting up the price for everyone?

Perhaps it is not so much a matter of putting up the price as of stopping the price dropping. The real price of alcohol has halved over recent years, which is a substantial reduction. I think the noble Lord would agree that some of the offers that are available to people are there to tempt them to buy more alcohol than they need.

Nuclear Waste


Asked By

To ask Her Majesty’s Government what are their plans for a geological disposal facility for nuclear waste in the United Kingdom.

My Lords, government policy for the long-term safe and secure management of higher-activity radioactive waste in the UK, excluding Scotland, is to place it deep underground in a geological disposal facility. Our approach to implementing geological disposal is community-led. The Government are committed to voluntarism, working in partnership with areas that have come forward to take part in the site selection process. To date, three local authorities in west Cumbria have expressed an interest in that process, but the invitation for other communities to come forward remains open.

My Lords, I am grateful to my noble friend for that Answer. However, as she will be aware, the local authorities have sent a letter, which I have seen, asking for a pause in the process of agreeing how this radioactive waste agreement might be reached. The letter recognises that:

“The economic future of West Cumbria is inextricably linked to the future of the nuclear industry”.

Will she assure the House that the outstanding issues listed in the letter are currently the subject of serious and positive negotiations? Given that it has been the policy of successive Governments that they,

“need to be satisfied that effective arrangements exist or will exist to manage and dispose of the waste”,

and given that there remains a possibility, however remote, that the Cumbrian authorities may not be able to reach agreement with the Government, will she confirm that the Government have a plan B?

My Lords, I congratulate the three councils in Cumbria. They are robustly engaged with the Government in ensuring that it is a community-led approach. We are also working closely with key decision-makers such as business, the unions and local Members of Parliament. As my noble friend knows, it is a staged process, and this pause has come about because the councils require some clarifications to be addressed. I am pleased that they are taking this issue so seriously. The process will take many decades, so a rushed response would actually not be helpful to anyone.

My Lords, our stock of plutonium waste would represent a valuable resource for power generation if we were to consider burning it in fast breeder reactors. Could the Minister tell us whether or not there are any genuine intentions to pursue this recourse?

My Lords, we are very serious about underground disposal. We are going to ensure that all the questions that are being asked are answered. We are working very closely with local authorities in Cumbria. We welcome other local authorities coming forward, but making sure that we safely secure radioactive waste is a serious question. That is the mission of this Government.

My Lords, I think my noble friend is aware that originally it was stated that the cost of storing plutonium was commercially confidential, but the Secretary of State wrote to me this morning saying that the cost is £1.9 billion, presumably only as far as 2020. When my noble friend receives the report from the Nuclear Decommissioning Authority on how to dispose of the plutonium, including the cost not only of storage but of credible alternative options, will that report be laid before Parliament and before the Select Committee on Science and Technology so that Parliament can have an opportunity of expressing its opinion before the Government make the final decision?

My Lords, my right honourable friend the Secretary of State would have given my noble friend a date of 2120, not 2020. The cost of storing plutonium is commercially confidential, but my department has assessed the cost of long-term storage alongside other options, such as MOX. Based on a discounted lifetime of 100 years, the cost is around £8 billion. My noble friend asked about the report being laid before Parliament. Once we have received the report, I am sure we will consider that.

My Lords, the noble Baroness has just taken on responsibility for this area. Will she share with us her first impressions? Most people who have followed this issue know that for decades there has been muddle, confusion and delay which, more than anything else, is likely to prejudice the voluntarism of a number of communities in west Cumbria that recognise, perhaps more than anyone else, the economic importance of proper and orderly disposal. That is not an excuse for delay. Will she please try to make this process move a lot more quickly so that the uncertainty can be removed?

The noble Lord is right that I have been in the department for seven weeks. My first mission was to go to meet people from Cumbria and Sellafield. It is important that we get some clarity, but it is also right that this process is community-led. If there are clarifications that need to be made, it is right that they are made. We do not want delays further down the process, so it is best that we get clarifications and sort out people’s worries and concerns at the beginning.

Will the Minister tell the House how much consultation is going on with our European partners, particularly with the French and Germans, on the disposal of nuclear waste?

The noble Lord raises an interesting point. Countries, including France, have opted for underground nuclear disposal.

My Lords, given the time that these discussions are clearly going to take, the absence of a plan B in the answer to the question asked by the noble Lord, Lord Jenkin, and the importance of ensuring that nuclear materials, whether waste or otherwise, are kept secure from those who might steal them, is the Minister satisfied with the resources available to the civil nuclear police to protect those nuclear materials, and is she satisfied with the arrangements whereby they can call on the assistance of Home Office forces in the event of any challenge to the security of those materials?

My Lords, to reassure the noble Lord and all noble Lords in the Chamber, I can say that safety and security are paramount to everything that we do. While we build consensus for underground disposal, it will be very important that everything kept above ground will be secure and safe. Of course, we will always be looking at security as time progresses.

Iraq: Chilcot Inquiry


Asked by

To ask Her Majesty’s Government what representations they have made to the chairman and secretariat of the Iraq Inquiry about possible delays in publication of its report due to responses from officials of the government of the United States.

None, my Lords. The drafting of the inquiry’s report and the contents are entirely a matter for the inquiry, which is independent of government.

We remember, of course, the many thousands of Iraqi civilians, including women and children, who were killed after this illegal invasion. Will my noble friend the Leader of the House reassure the House that the Government will attach every meticulous attention to the contents of the report when eventually it is published? It is a very long process and the sooner it is published the better, but there is still a considerable delay. The particular implications of eventual submissions to the ICC should also be borne in mind.

My Lords, my noble friend is correct to draw attention to the report. I can confirm the seriousness with which the Government will accept the report. It perhaps is worth pointing out that Sir John Chilcot, the chairman of the inquiry, has advised that the inquiry will be able to submit its report to the Prime Minister once it has given those who may be subject to criticism in the report the opportunity to make representations to the inquiry before the report is finalised. The inquiry has concluded that it will be in a position to begin this process, known as Maxwellisation, by the middle of next year.

My Lords, in replying to the Question posed by the noble Lord, Lord Dykes, the Minister gave no reaction to the noble Lord’s use of the word illegal. Was that an oversight or does he agree with that analysis? If he does not agree with it, will he confirm that it was a quite legal action that we were engaged in?

My Lords, I would not want anyone to think that I was agreeing with either the word “illegal” or “legal”. The inquiry is taking an enormous amount of evidence, which, no doubt, will be published in several volumes. At that stage, we will be able to take a far better and more rigorous view as to exactly what happened.

My Lords, if the report has been finalised, why will it take from now until the middle of next year for the consultations with those being criticised to take place?

My Lords, the inquiry has said that it is determined to be rigorous, fair and frank. It soon expects to be in a position to begin this process of Maxwellisation. Once that process is complete, the inquiry will submit its report to the Prime Minister. It is understood that that is unlikely to be until the latter part of next year.

My Lords, I share the concerns raised by the noble Lord, Lord Tomlinson. Does the Minister share my hope that at a very early opportunity after publication this House will have an opportunity to debate the report?

My Lords, I think that the House will have a great deal of interest in it—in fact, not just this House but another place as well. However, it is far too early to jump the gun on this issue. When the report is published, no doubt the usual channels will get together and I cannot imagine the circumstances in which we would not wish to give it a full debate.

Official Secrets Act 1989 (Prescription) (Amendment) Order 2012

Motion to Approve

Moved by

That the draft Official Secrets Act 1989 (Prescription) (Amendment) Order 2012 laid before the House on 2 July be approved.

Relevant document: 7th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 23 October.

Motion agreed.

Electoral Registration and Administration Bill

Committee (1st Day)

Relevant documents: 6th and 8th Reports from the Delegated Powers Committee, 5th Report from the Constitution Committee.

Clause 1 : Individual registration

Amendment 1

Moved by

1: Clause 1, page 2, line 8, at end insert “, but only if the Electoral Commission believes that the new electoral system is operating effectively”

My Lords, so many noble Lords are leaving—this is a disappointing reaction to such an interesting Bill, which goes to the very heart of our democracy. And still people leave, in such numbers that there is a blockage at both doors.

We on these Benches support the principle of individual electoral registration, as we indicated at Second Reading. Indeed, as has been pointed out on a number of occasions, we legislated for it in the Political Parties and Elections Act 2009, in the last Parliament. We believe that it is desirable to have a complete and accurate electoral register. We also believe that individual electoral registration is a system compatible with modern society, and we recognise that it is outdated to rely on the head of the household. In essence, the issue between us and the Government in this respect is how you introduce it, and the timing of how you introduce it. You have to make very sure that you are not losing too many people off the register before you introduce it.

Moving to individual electoral registration is a significant change; it is the right change, but it must be implemented correctly. The risks to British democracy if it is not are too great. So despite supporting the principle, as I have made clear, we have genuine concerns. Our amendments, to be debated over the coming three Committee days, have been tabled to reflect those concerns.

Data published by the Electoral Commission and the Electoral Reform Society and acknowledged in the Government’s impact assessment for this Bill show that anything between 3.5 million and 7 million people are missing from the electoral register. That is an unsatisfactory base to start from, but the Electoral Commission also predicts, and the Government have acknowledged, that the shift to individual electoral registration could see an initial further hit to the completeness of the register by up to 30%. Experience from Northern Ireland bears this out, although I accept that there may be special factors that apply in relation to Northern Ireland that may not apply on the mainland.

We need to do all that we can to address these issues and to ensure that the electoral register is as accurate and complete as possible. So the guidance provided for in Clause 1 is good, especially during the transition from one system to the other and in the early stages of the operation of individual electoral registration. We welcome the specific requirement on the face of the Bill, but our concern is over why the role of the Electoral Commission has been undermined. The Government’s Bill gives a very significant amount of decision-making power to the Minister while bypassing the Electoral Commission and Parliament. We feel that a five-year transitional period for issuing guidance may be too short; the Bill’s Explanatory Notes are no more certain than deeming it “likely” that the new system will have reached a “steady state” in five years. And how do the Government define “steady state”? Given the levels of uncertainty associated with the transition, we argue that at the very least the Minister should be advised by the Electoral Commission on whether the system is operating effectively before guidance is withdrawn.

The Electoral Commission is an independent statutory body operating outside the political system with responsibility for electoral matters. We feel that it has a proper role in reaching an objective decision on these issues and that this should be written into the Bill before us today. Amendment 36 calls for annual registration reports to be produced by the Electoral Commission, presented to the UK Government and laid before Parliament with time set aside for Parliament to debate each report. In keeping with the theme of this group of amendments, which is related to improving the accuracy and completeness of the electoral register, Amendment 36 also addresses our concerns about unchecked ministerial power and the bypassing of the Electoral Commission.

Finally, Amendment 59, which is the third amendment in this group, calls for the results of the ongoing data-matching pilots, to which the noble Lord, Lord Wallace of Saltaire, referred in his opening speech at Second Reading, to be reported and evaluated before the full transition from the old to the new register takes place. According to the Government’s implementation plan for the Bill published in July, data-matching pilots have been running since August 2012, and data-mining pilots to identify potentially eligible voters who are currently missing from the register will begin in early 2013. I anticipate that the Minister will reject our call for a delay until the results of these pilots are known but will argue that a second set of data-matching pilots be commissioned. We accept that the second set of data-matching pilots should be commissioned but will the Minister acknowledge the concerns of the Electoral Commission about the findings from the first? In its evaluation report, the commission wrote:

“Our main conclusion is that these pilot schemes do not provide sufficient evidence to judge the effectiveness of data matching as a method for improving the accuracy and completeness of the electoral registers”.

We are serious about the status of the electoral register and believe that all action should be taken to ensure that it is kept as up to date, complete and accurate as possible. We are serious about the most appropriate bodies and individuals being given the power to advise and issue guidance. We are serious about proper parliamentary scrutiny of an exercise of ministerial power, particularly in an area that is absolutely crucial to the effective working of our electoral system, as everybody agrees. We look forward very much to hearing what the Minister has to say in response. I beg to move.

My Lords, I did not have an opportunity to participate at an earlier stage in this Bill but these amendments, particularly Amendment 1, which relates to the role of the Electoral Commission, about which the noble and learned Lord has spoken so eloquently, is very important.

The Bill sets out the rules that would apply for Great Britain. In replying to these amendments, will my noble friend give us guidance on where the Government are in respect of the changes which are being promised by the Scottish Government in the conduct of the referendum on independence? This is important because at the Scottish National conference the First Minister of Scotland said that he would bring in a Bill which would provide for a new electoral register which would include 16 year-olds. It would not provide for 16 year-olds being able to vote in the referendum who were already on the electoral register: that is, the so-called attainers who reach the age of 18 at a subsequent election in respect of the existing roll. My understanding is that the publicly declared policy of the Scottish Government is to create a new register, which would be based presumably on individual registration by 16 year-olds, expressly for the purpose of the referendum on independence. This seems to me to drive a coach and horses through what this Bill is about, which is establishing a uniform system throughout Great Britain. I just wonder what the Government’s attitude is.

Ministers are on record as saying that it would not be possible to have a new electoral register. I think that the noble and learned Lord, Lord Wallace of Tankerness, suggested this from the Dispatch Box in answer to a question from me during a Private Notice Question. However, my understanding is that that is the intention of the First Minister and that this is being done without any oversight by the Electoral Commission. What is the Government’s attitude to that, because the election for the House of Commons will take place a few months after the proposed date of the referendum? We will therefore have one register of 16 year-olds who will be able to vote on whether to smash up the United Kingdom, and then another when six months later the self-same people are told, “There is a different register of electors for elections to the United Kingdom Parliament, European elections and the rest and you can’t be on it”.

We seem to be getting into a bit of a mess here as regards whether the conduct of the register and its content is or is not a devolved matter. It seems to me that it is a reserved matter. However, by virtue of a private negotiation, Ministers have cleared the way for the creation in Scotland of a register that would include 16 year-olds and a change in the franchise that would have an impact, not just on people’s aspirations as to the franchise elsewhere but the register itself. One would have thought that the body which has responsibility for the conduct of elections, the Electoral Commission, would be central to ensuring that this kind of confusion does not occur.

I therefore have considerable sympathy for the noble and learned Lord’s amendment, which seeks to prevent any further dilution of the role of the Electoral Commission. I do not want to get out of order here but, for example, people keep telling me that the commission will be responsible for the referendum question. That is not what has been agreed. What has been agreed is that the Electoral Commission will be consulted as to the intelligibility of the question, not to its fairness, appropriateness and the rest.

I hope that my noble friend will give consideration to what the noble and learned Lord has suggested in looking at the role of the Electoral Commission. Perhaps my noble friend may be able to give us some reassurance as to what exactly the Government’s attitude is towards ensuring that we have a single, coherent, fair and properly co-ordinated electoral register throughout the United Kingdom for the purpose of carrying out all democratic procedures. I understand, of course, that referenda have been conducted on a different basis in the past, but this Bill, which is an attempt to try and pull this together, is somewhat remiss in not observing the elephant in the room—or, in this case, the elephant that is north of the Tweed.

My Lords, in the course of the Committee’s deliberations, it will become clear why I have considerable sympathy with what this group of amendments seeks to achieve. However, it is not right for the Electoral Commission itself to decide whether the arrangements for individual registration have been completed sufficiently well for the new system to be fully introduced and those registered only under the old system to be dropped from the voting registers.

A later amendment, Amendment 58, in my name and that of my noble friend Lord Tyler proposes to put this responsibility where it belongs—with Parliament. I accept, however, that many of us would in any event be properly guided by the Electoral Commission’s view as to the accuracy and completeness of the electoral register at the time. What is most clear to me is that we simply cannot proceed with elections and boundary reviews based only on the new individual election registration processes if the voting registers resulting from these new processes are significantly less complete than they are now. I discussed this very point with the former Minister, Mr Mark Harper, who said that he understood the difficulties of trying to conduct elections in 2016 if the voting registers were essentially “not fit for purpose” at that point.

There are of course important elections in 2016 to the Scottish Parliament, the Welsh Assembly and many English local authorities, as well as the next review of Westminster parliamentary constituencies, that should, under the terms of this Bill, be based on voting registers exclusively compiled on the basis of individual voter registration as at 1 December 2015. We cannot be sure at present that the new registration system will be working sufficiently by then. I should therefore be grateful if, later, the Minister could tell the Committee what consultation there has been with the Scottish Parliament, the Welsh Assembly and the Local Government Association over the major changes to electoral processes that are due to have come into effect in full by May 2016.

The debates on this Bill both in the other place and at Second Reading in your Lordships’ House have shown that the timing of full implementation is a matter of intense controversy.

Is the noble Lord aware of any consultation that there has been with the National Assembly for Wales on the implications of these changes for the next round of elections?

That is exactly my point. I am unaware of any consultation on this issue. I have asked a number of times by correspondence what consultation there may have been with the Scottish Parliament, the Welsh Assembly or the LGA, which is responsible for local elections. It seems that these bodies are unaware that, through the Bill, there will be significant changes to the electoral arrangements for those elections in May 2016. I believe that they should be aware of them and their view should be part of our consideration of this Bill.

As I said, the principle of IER is not really in dispute between the parties. All the parties agree the principle of it, and they agree that a household-based system is insecure, inadequate and leads to inaccuracy. However, the question is how you get from that system to a more secure and more rational alternative without losing from the register lots of people who are legitimately entitled to vote.

In that objective, the noble and learned Lord, Lord Falconer of Thoroton, the noble Lord, Lord Wallace of Saltaire, and I are all agreed, but the question is: what if we have not achieved our objective by 1 December 2015? I am convinced—and the Electoral Commission warns us of this—that there is a real possibility that we will not have achieved our objectives by 1 December 2015. Furthermore, I am convinced that the possibility of failure will be lessened if we do not in this Bill sign up to full implementation by then, irrespective of what progress is actually made on implementation in the next few years. In other words, a strong signal will be sent to government if they have to make this system work before it is fully implemented. I think that it would be invidious to expect the Electoral Commission, on its own, to push the “go” button on the final parts of the transition to IER. Therefore, to help to ensure that the stated objectives are met, I would prefer to see provision made to permit Parliament effectively to extend the carryover of voters from existing registers for a further period if, in the judgment of Parliament, the register is not in a sufficiently complete state on the basis of individual registrations alone. On that basis, we do not support Amendment 59, as we believe that there is a better, alternative approach, which we will set out when we reach a later group.

Turning briefly to Amendments 1 and 36, I should like to see the Electoral Commission reporting in this way, as it would inform our future debates. However, these reports themselves would be of little value if there were no possibility of Parliament providing for carryover to continue beyond 2015. Likewise, the capacity of Ministers to give guidance to electoral registration officers is of little value if the law says that electors on existing registers in their area should be removed from future registers, even if Parliament is not satisfied that we have been able to get a proper alternative registration system in place.

In due course, I hope that all concerned will accept that Parliament should have the final say on whether we are succeeding sufficiently well in our aims of having an accurate and complete electoral register before we exclude unnecessarily from the voting rolls perhaps several million people who will still be legitimately entitled to vote. We will not be able to make that judgment until we see how the new system is working.

My Lords, like the noble Lord, Lord Forsyth, I regret that I was unable to take part on Second Reading, but since that debate the Constitution Committee, which I have the privilege of chairing, has issued its own report on the Bill. The report very much echoes some of the points that have just been made by the noble Lord, Lord Rennard. Overall, the Constitution Committee sought to impress on today’s Committee that the Government need to do everything possible to ensure that the completeness of the electoral register is matched by its accuracy. Concerns were raised—I know from reading the Second Reading debate—about the way in which the impact might fall heaviest on areas of urban population where, for example, many people in private rented accommodation—ethnic minority people, the young, and so on—might be unnecessarily excluded in the pursuit of the completeness, which might not necessarily reflect the accuracy and vice versa of the new register.

Although I take the point made by the noble and learned Lord, Lord Falconer of Thoroton, that there may have been special concerns and reasons in Northern Ireland, it is worth noting that the accuracy of the register fell by nearly 10% when individual registration was first introduced. The other major point that applies to this group of amendments—again I am echoing the noble Lord, Lord Rennard, and the concerns raised by the Constitution Committee—was about the necessity not to express many of these important concerns in guidance. The committee was concerned that there should be much greater parliamentary oversight of the introduction of the new register and that these matters should be put in regulations. We felt that for the Secretary of State to be able to determine requirements for exercising the right to vote without effective parliamentary oversight would indeed be constitutionally improper.

My Lords, I begin by apologising to the Committee because like the noble Lord, Lord Forsyth, and the noble Baroness, Lady Jay, I did not speak on Second Reading. I had a specific reason for not doing so. I was on the list to speak but unfortunately I was in the Information Committee. I thought that the business would go on longer but I suddenly realised that I could not make it into the Chamber in time to hear the beginning of the Minister’s opening remarks. I was therefore asked not to speak on Second Reading. I apologise to the Committee for making that mistake. The danger is that now I will fall into the trap of making the Second Reading speech that I would have made.

The noble Lord, Lord Rennard, in particular, roused me to my feet as I have one simple point to make. The Bill is designed to stop fraud and ought to be designed to encourage people to vote, and there is one simple way to deal with that. Unfortunately this House and the other place both voted to get rid of that simple way of dealing with this matter, which was the introduction of an identity card—a general register of all people. It would have been a compulsory identity card for everyone. It would have ensured that everyone was on the central register and we would not be in this position. The noble Lord, Lord Rennard, led the campaign, as much as anybody did, against ID cards, which was a major error on his part. By the way, the technology on ID cards, or smart cards, has moved on extensively even since we abolished the proposal less than two years ago. Now we could have a smart card that would ensure that people were on a central register and the register itself would divide and set up online registers for the whole of the country. Each constituency would have a register, not completed by a registration officer or by individual registration but automatically: by pressing a series of buttons on a computer it would come up with the right answers. Each individual would be able to vote only by producing an ID card. This would stop a great deal of fraud, provide a workable system and, I hope very rapidly, we would move to voting electronically and using the ID card to register our votes.

It is absurd that on “Strictly Come Dancing”—where although the results are announced on the Sunday they are known on the Saturday—every individual voter can use their mobile phone, their home phone, their computer or whatever it might be to register their vote. However, what do we do when voting in a general election? We go traipsing off to a school and are given a pencil with which to put a cross on a piece of paper. To many young people—and to people like me who are perhaps more technologically aware than others in this place—that view of how we should operate in this country is out of date and old fashioned. As a result, we are making ourselves—and, unfortunately, our system of democracy—look foolish.

We are in danger of damaging or threatening our democratic structures if we do not move toward reintroducing an ID card, reintroducing a central register and then moving quite quickly towards people voting electronically—first perhaps in one place and then, secondly, wherever they are capable of using an ID card which identifies them as being eligible to vote.

I remember being on the Culture, Media and Sports Select Committee in the other place when the contract for the lottery came up for renewal. Camelot, of course, retained it, but one of the companies said that it would introduce a system which would not only enable people to play the lottery on their computers but also to vote using their computers, should the Government eventually move towards that facility. I left the other place 11 years ago, so it was probably possible to do this 13 or 14 years ago. Technology has moved on fast since then. Surely the Government should withdraw the Bill, look again at ID cards and see what they can do in regard to a central register.

My Lords, I hope the noble Lord, Lord Maxton, will forgive me if I briefly return to this group of amendments.

I was looking forward today to a tour d’horizon by the noble and learned Lord, Lord Falconer, with historical analogies, assessments and context, because, as it happens, I am celebrating my birthday today and I thought this would be highlight of the day. I am sorry that the noble Baroness, Lady Gould, is not in her place because she shares my birthday but is not sharing the wonderful experience that we usually have.

The history is important because the discussion on this group of amendments is all about monitoring success and measuring progress rather than the principle of IER. There is unanimous support and—dare I use the word?—consensus in this House that we have to move. The previous Government said so and this Government say so. It is a question of timing and getting it right, a point made by the noble and learned Lord, Lord Falconer. I am therefore disappointed that he did not refer to the past history and how we got to where we are. It was in 2003 that the Electoral Commission advised Parliament that it was necessary to move in this direction to improve the accuracy and completeness of the register and it took five years, as the noble Lord, Lord Wills, will know only too well, for the previous Government to take this issue seriously. We would not be having the suggested problems if it was not for the fact that that delay took place under the previous Administration. It is disappointing that the Labour Benches have not been able to recognise that that delay has made it more difficult to achieve success.

That is not least, of course, because during the nine years since 2003, the existing register based on household head registration has dropped dramatically. It is less complete and less accurate than it was when the Electoral Commission first made its recommendation. Until a matter of months ago we had all assumed that the existing register was something like 90% accurate; it is somewhere around 80% accurate. As I pointed out during the Second Reading debate and as the noble Baroness, Lady Jay, has said, in some areas it is much lower than that for the reasons she so eloquently expressed. The delay has made the situation more difficult, and in assessing the progress we must now make, your Lordships have to take that into account.

Do the experiments in Glasgow and elsewhere not show that if the local authority is given the necessary resources to go around and canvass to make sure that there are returns, the percentage is much higher? Is it not because of the cuts in local authorities’ expenditure that they are not able to do that as effectively as they used to?

That is for a later part of the Committee stage, but I have sympathy with the point made by the noble Lord. Indeed, I pointed out at Second Reading that the London Borough of Hounslow has done incredibly well over recent years, despite the difficulties that most local authorities have been facing. Hounslow has used a whole number of positive and negative ways to encourage people to register. It is not just where these things happen; it is the degree of attention that the local authority is able and willing to give to these matters.

As my noble friend Lord Rennard has indicated, we have a later amendment which we think would bring back to Parliament the last word in pressing the go button, particularly for 2016. I think that that is more appropriate than asking the Electoral Commission to be, as it were, judge and jury in its own case.

My Lords, as always it is a pleasure to follow the noble Lord, Lord Tyler, and particularly so on his birthday. I should like to take this opportunity to wish him many happy returns. I am surprised, though, that in his interesting history of the previous Government’s legislation in this area he omitted to mention that the Political Parties and Elections Act 2009, to which my noble and learned friend Lord Falconer referred, was agreed as being the best way forward by the Conservative Front Bench in opposition and by the Liberal Democrat Benches in opposition. We have still not had any explanation of why that agreement has been ditched and we have to spend the time of this House and the other place on this new legislation. Perhaps he will return to that in due course and explain to those of us who are still mystified by it exactly why that was the case.

I support these amendments, which have been so ably spoken to by my noble and learned friend Lord Falconer. They all go to mitigate what many of us think are the risks of a decline in levels of registration as a result of this legislation. There is no certainty that the levels will decline, but we feel that there is a risk of that. We do not know whether the Government agree because so far they have studiously avoided saying whether they think there is any risk, but what we do know is that they are commendably committed to a comprehensive register. They have said that many times and I think we all agree on that. We also know that, again commendably, they are bringing forward a number of measures to that end, and they have the support of almost everyone in the House for those measures. But what we have also learnt is that they seem to feel that a level of registration of 85% to 87%—in other words where there would be 6 million people who would be eligible to vote but who would not be on the register—is a level of completeness that, in the words of the noble Lord, Lord Wallace, in an email to me, is, “as complete as is reasonably possible”. That at least indicates that they think there is some considerable difficulty in achieving a truly comprehensive register. We do not know exactly why the Government will not say whether they think there is any risk of a decline in levels of registration as a result of this legislation. It may be because they actually think that there is no such risk but that it would be imprudent for a Government to commit themselves in that way. It may be that they have done some work which shows that there are considerable risks inherent in the legislation, but again they do not want to tell us.

Governments are not infallible. Amendment 36, which I particularly support, offers Parliament the opportunity to assess the Government’s record in this area. This amendment would commit not only this Government but subsequent Governments. This Government may not be in power after 2015 so this amendment would commit a future Labour Government to bring before Parliament the opportunity to scrutinise levels of registration and, if necessary, to produce remedial measures. I think Parliament should have that opportunity.

This is not a minor technical matter, although some of the details are technical; it is about the very wiring of our democracy. The outcome of general elections depends on electoral registration. There are worries on this side of the House that this legislation, coupled with the PVSC Act, will lead to partisan outcomes in levels of electoral registration. These are important issues and Parliament ought to have the opportunity to scrutinise them regularly.

The Minister may say that the Electoral Commission will do its usual good job in bringing forward annual reports on the state of electoral registration and then it may be for Parliament to discuss the matter if it so wishes, but I hope that the Minister will not rely on such an argument. That would be to downplay the importance of this issue and the risks inherent in this legislation. I hope that the Government can agree with what is actually a modest amendment and allow Parliament the opportunity to scrutinise levels of registration on an annual basis.

My Lords, it is a great pleasure to follow the noble Lord, Lord Wills. I always listen very carefully to what he says but on this occasion I must take a rather different view of him. The cat was rather let out of the bag this morning by the BBC, which said that many Members of this House, and indeed the other place, regard this Bill as being a partisan, party-political Bill—a conspiracy on the part of the Conservative Party to extract maximum electoral advantage. This Government have been accused of many things but being part of a Conservative Party conspiracy to extract maximum electoral advantage is not a characteristic that they display daily.

Clearly the Bill is of considerable importance. It gives more effective meaning to the principle of “one voter, one vote”. It is just too important to be played for party-political advantage. Indeed, from my point of view, it stands alongside redistribution of boundaries in ensuring that elections are fair and balanced. Surely it is no fault of this side of the House—at least this party—that at the next election the principle of “one voter, one equal vote” may not apply, although I live in hope that my colleagues in the coalition may yet see the way to a liberal dose of common sense and just a smidgen of consistency even on that issue.

Of course, the important question is: how do we measure the success of this Bill? I share the concern expressed by the noble Lord, Lord Wills, and other noble Lords that numbers are falling as a result of the current system of electoral registration. Figures of 3 million or 6 million missing voters have been mentioned. Indeed, the noble and learned Lord, Lord Falconer, mentioned 7 million, which is a figure that I had not seen before, but I suspect that voters are rather like those pesky badgers: every time you turn around there are more of them than you thought.

The noble Lord, Lord Wills, is right that everyone who has a right to vote should have a vote. It is that simple, yet surely it is not just a matter of numbers, which he concentrated on; it is also a matter of accuracy—that those numbers should be the right numbers. So many of the amendments that have been put down to this Bill emphasise completeness rather than accuracy; for instance, Amendment 36 talks about the Electoral Commission producing,

“a report on the accuracy and completeness of the electoral register”,

but it goes on to emphasise that what it is really interested in are “variations in registration rates”.

The current system is wide open to abuse. There has been a huge recent increase in postal votes on demand, which has opened up much scope for fraud. The problem is going to grow with the increasing growth in the private rented sector. The noble and learned Lord, Lord Falconer, and the Constitution Committee have implied that fraud is rare. However, I go back to stating that proven cases of electoral fraud are rare but of course it is incredibly difficult to prove that electoral fraud has taken place. Whether such abuse happens is not entirely the point. Our electoral system should be made as secure as possible. My concerns are not entirely hypothetical, as we can all quote cases of politicians of all political colours who have been convicted recently—

What the noble Lord is saying agrees with exactly what I have said. It seems that the identity card solves both the problems he is talking about. It ensures both accuracy and that the person who is registered is the person who is registered and not somebody else. It eliminates fraud.

I recognise the noble Lord’s commitment to the identity card, but he is making a Second Reading speech rather than dealing with this amendment. There are many different ways to justice on this. I am sure we are all interested in having a robust electoral system at the end of the day but I am not sure that we have that at the moment. When postal votes are handed out like ice cream on a summer’s afternoon, it is not surprising that we have discovered cases where various people get their hands rather sticky.

We also seem to be tying ourselves in knots in this country in an attempt to prevent criminals from getting the vote. However, for a criminal to vote under the present system is the easiest fraud in the world. There are no checks in our electoral system as it is at the moment to see whether anybody on that electoral system should no longer have the right to vote because of a conviction. I hope that the Minister will be able to give attention to this and introduce some effective form of data-matching to make sure that that is no longer a problem.

I do not want to delay the Committee, but I want to give a couple of meaningful statistics that have been kindly provided to me from the Library. Postal votes nowadays account for a huge chunk of electoral turnout. In most constituencies the number of postal votes average around 10,000, which sometimes amounts to well over 20% of the total turnout. In some constituencies it is more than 30% of the total turnout. The 25 most marginal seats in the country are decided on majorities of around 500 votes or fewer. Quite clearly, it is more than possible for a fractured postal voting system to decide the outcomes not only of many constituencies but of an entire general election. We cannot turn a blind eye to the possibility that all the efforts we put into general elections could be turned over simply because of a very poor postal voting system.

Those who emphasise the need to get the maximum number on the register have all my sympathy. Let us by all means talk about numbers and get those numbers up. However, let us make sure that they are the right numbers.

My Lords, I apologise also for having missed Second Reading, for family reasons on that occasion. I will just throw in two or three examples of the dangers of fraud that have arisen from the comments of several noble Lords this afternoon and which any revision to the system must take into account.

First, whichever way a register is compiled, if it involves a canvass, those who are involved in undertaking that canvass could be open to pressure or could indeed be exerting influence. Forty years ago this year, I won a seat on a local authority by just some 50 votes out of a register of 8,000. To our great surprise, when the next register came out there was a reduction of several hundred voters in our ward. We attempted to see the correlation between our votes and those that had disappeared; there was something like a 70% correlation. What had happened was, yes, that forms had been dropped into every house, as they should have been, but in certain houses the knock on the door to pick them up was very light and they were not picked up. They had a right, of course, to take those forms in or to post them in but people did not do so. That was one avenue of fraud.

Another example, which noble Lords will be well aware of, is the pressure that is put on people with postal votes in a personal manner. In certain elections in my own area, I am aware of a motorcade following the postal van that was going around. As the postal votes were dropped, there would be a knock on the door: “Hello, Mrs Jones, can I help you? Do you want a witness? Do you want me to post this for you?”. The pressure that can be put on in that way obviates all the efforts that are made to ensure that we have a fair and reasonable system.

The third example that I would mention is, again, one that your Lordships will be very much aware of: the pressure that people felt at the time of the poll tax. Many people wrongly thought that there was a correlation between the right to vote and being on the register and there was a massive reduction in the number of people on the register. The outcome of the following general election was held to be because of the reductions in key constituencies that would have made a difference to that outcome. Often, as has been mentioned, those in private rented houses may have thought that they might avoid having to pay so much poll tax and were, in that case, avoiding being on the register. Other circumstances as well could lead to people wanting not to be seen at certain addresses. All these factors have to be taken into account when dealing with these sorts of changes.

I welcome the provision in Amendment 36, particularly its second half, to make sure that there is a relationship with the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly because there is a bearing on the elections that take place there, particularly in 2016. Careful thought needs to be given as to how things roll out in that year. However, we need to look even further at how we can ensure that the system is absolutely watertight.

My Lords, we have almost been having another Second Reading debate. Since this is the beginning of Committee, perhaps I might be allowed to say a few general things before answering on these amendments. As a number of noble Lords have already said, across the parties we all share an interest in restoring as far as we can the accuracy and completeness of the register as we go through this transition. We also share the principle of that transition: that we should be moving away from a household system of registration dating from the 19th century, when only the head of the household was allowed to vote, to one which is much more appropriate to the more varied households and the different relationship between the citizen and the state which we have today.

Over the summer, I have talked to a number of electoral administrators and read a fair amount. I would like to say a few things on that. I was struck by the strength of feeling that some electoral administrators have about making a faster shift to individual electoral registration than the previous Government proposed. It is faster, cheaper and clearer but we all understand that how we manage the transition is key. I remind the noble Lord, Lord Wills, that the transition in Northern Ireland was a big bang; here, we are taking it over more than two years. We all share the interest in getting this right, which is what these and some later amendments touch upon.

I hope that noble Lords will have seen a couple of interesting pieces of research that were published over the summer. There was, for example, the article published by Parliamentary Affairs in August on The Quality of the Electoral Registers in Great Britain and the Future of Electoral Registration.

It states that,

“the estimated level of completeness of the December electoral registers has fallen since 1950: dramatically so over the last 10 years”.

In other words, we already have a problem. The completeness of the register has fallen quite remarkably in the past 10 years. The noble Lord, Lord Wills, said that he did not like the phrase,

“so far as is reasonably practicable”,

but that recognises that we may not be able to get back to the wonderful period of the 1950s when the level was up to an estimated 95%. However, we certainly hope to restore as far as we can a percentage in the high 80s rather than the one in the low 80s to which we are heading.

Another weighty piece of research, undertaken for the Government and published in July, is on Under-registered Groups and Individual Electoral Registration. Among other things, it states that the motivation to register is closely associated with the motivation to vote, which should be sobering for all of us. Those who are not interested in voting are, of course, not interested in registering either. That is one of the strongest correlations in lack of interest or resistance to registration. We all recognise that turnout has fallen during the past 25 years. Party membership has fallen remarkably during the past 25 years. That is a much wider issue, which we again all share, of regaining the confidence of our electorate and persuading people to vote.

Both pieces of research show some interesting things. Age is the biggest single differentiator of registration; social class is not—I say this to Labour Peers in particular who may worry that there is a real differentiation between classes. However, we know that housing tenure and frequency of moving are a major differentiator and that young people in private rented accommodation are the hardest group to get at. There is some evidence that recent immigrants to Britain—people who are not British citizens but are EU or Commonwealth citizens—represent a disproportionate percentage of those who are not currently on the register but should be.

There are also some large issues around social change which I have discovered in talking to people who are concerned with this. Doorstep canvassing was much easier a generation ago than it is now. Fewer people are in; both members of a household are working; or it is a single-member household and that person is out working. People actively resist talking to a doorstep canvasser and think that they are interfering. Among the reasons why we think the annual canvass will in the long run have less utility are precisely those sorts of social change. Gated communities are more common. We were told that 24,000 households in Wandsworth, many of them the new flats going up along the river, are behind gated entrances. All of us who deliver leaflets and canvass know how much more difficult it has become in recent years to get into private accommodation and blocks of flats. That also makes it more difficult to discover who is there.

There are difficulties of communicating with young people. I have been told robustly, not only by electoral administrators but by friends and other parents, that young people do not answer letters. In particular, young men do not even pick up letters addressed to “The Householder” or “The Occupier”; you have to get at them if you can via their iPhone because that is something that they are more likely to answer. That is one of the reasons why among the experiments which we are undertaking is the introduction of online registration. A number of noble Lords came to see the demonstration that we offered. That is clearly the direction in which we have to go, in particular to catch the younger generation.

The data revolution itself offers real potential. We are attempting to reach that potential with data matching and mining at the moment. I was offered an extremely valuable briefing by the head of the Government Digital Service last week about what will be possible within the next four or five years in closer data matching and mining. I must say to the noble Lord, Lord Maxton, that some large questions will be raised with the liberties and privacy lobbies about how far public and private data sets are compared. So a number of things are changing. The data-matching pilots that we have conducted so far have been remarkably successful and have enabled us to match a good two-thirds of the names on the register with those provided on the DWP database.

However, we are dealing with voluntary registration. The noble Lord, Lord Maxton, wants to move us towards, in effect, compulsory registration. I note that he also wants us to move from local registers to a central register. Those are large changes in the traditional and established relationship between the citizen and the state. I think they go wider than this Bill. I was struck by that as I had to answer a Question some months ago on the wonderful experimentation in Georgia in the caucuses. Computers have been introduced there whereby the citizen can interact with every single agency of the state with which the citizen operates. Some enthusiasts for that system, including the Cross-Benchers, did not seem to understand that that would mean the state had all the information on you pulled together in one single entity. That is, again, not something that the citizens of this country would be entirely happy about. The outcome of the data-matching pilots so far has been very encouraging.

On the Scottish issue, I assure my noble friend Lord Forsyth that the agreement on 16 year-olds voting is limited entirely to the Scottish referendum. It does not apply to UK voting the following year. On the amount of consultation with the devolved Administrations, the Scottish Government have passed a legislative consent motion and the Welsh Assembly responded to the consultation on IER—so there has been consultation. Of course, there has been a great deal of consultation with local authorities within England as well.

I asked my noble friend a specific question. I fully appreciate that the agreement reached by the Prime Minister in Edinburgh allowed for the Scottish Government to extend the franchise to 16 year-olds, but I think that my noble friend’s namesake, our noble and learned friend Lord Wallace of Tankerness, told the House that the Scottish Government would not be able to have a new electoral register: they would have to use the existing register. So I asked what the Government’s view is of the declaration by the First Minister that he intends to bring forward a Bill to create a new register for all 16 year-olds who would be able to vote on the referendum. For the first time in this country, we would have a devolved register that applied to the referendum and a register that applied to general elections. That is a constitutional nonsense. Are the Government content for that to happen?

I said that registers are compiled and kept locally. We do not have a single, central national register—to the deep regret of the noble Lord, Lord Maxton. There is some room for at what stage one puts what we call the attainers—those 16 and 17 year-olds—on the register. There are some differences already between local registers. I am struck by the strength of the difference between the electoral registration forms that I have seen from different local authorities. We do not have in the United Kingdom a single centralised approach to electoral registration.

I do not think the Minister quite understands what is happening in Scotland. It may be that, whereas the UK Government are consulting with the devolved Administrations, perhaps a devolved Administration are not consulting with the UK Government. As the noble Lord, Lord Forsyth, said, our understanding from the media is that the Scottish Government are publishing a Bill that will allow people who are 16 years old on the date of the referendum—that is, some time in October 2014—to vote. That means an entirely new cohort of people on the register. It means going round to find out where people who are now 14 and 15 year-olds are, getting them on to a register, publishing the register—locally, as the Minister said. How is that to be done? Has he been consulted about that? Has he made any comments about it? Does he know what is going on in Scotland?

My Lords, I do not follow the Scottish media as closely as the noble Lord, Lord Foulkes, and it is very difficult for the Government to ask to be consulted on reports in the Scottish media. I will have to write to him on the detail of something which may or may not be what the Scottish Government are proposing if it has so far appeared only in the Scottish media.

My Lords, let us forget about the Scottish Government for a moment and think about this Government. I was given an assurance by the noble and learned Lord, Lord Wallace of Tankerness, that the extension of the franchise to 16 year-olds would apply only to attainers—that is, to people on the existing register. Is that correct or not?

To be absolutely sure that I am entirely consistent with my namesake, I will write to the noble Lord when I have checked as thoroughly as I can to ensure that I am entirely accurate.

To follow up the original question of the noble Lord, Lord Forsyth, which is a question of constitutional relevance, however the register is achieved—whether the attainers are dealt with from one particular date or another—is not the point the inconsistency between that referendum franchise and the one then applicable for Westminster elections and how will that be dealt with?

In allowing 16 year-olds to vote in a Scottish referendum, we are making an exception. That is evident; that is part of what has now happened. We have a register which has various people on it with different circumstances. There are those EU citizens who are entitled to vote in local and European elections but not national elections; there are Members of this House, who are entitled to vote, similarly, in European and local but not in national elections. So there are already some variations between categories on the register. I will check as thoroughly as I can on this to ensure that I am entirely accurate on a point which, I fully understand, is important.

Perhaps I may now turn to the three important amendments. The issue at stake for all of us is how confident we are that we will manage the two-year transition and what we do when we reach the end to ensure that we have gone all the way through the transition. The reason for having a two-year transition is precisely to ensure that we are successful as we come to the outcome. The Electoral Commission will be following that very closely. We will be reporting back to the House on how the new system operates, so we are confident that by the autumn of 2015—with, as the noble Lord, Lord Wills, correctly pointed out, a different Government, or certainly a new Government, in place—we will be able to make a full transition.

Amendment 1 asks for guidance to be maintained for registration officers beyond the five-year period. Again, we are into questions about central direction and local autonomy for registration officers. Having spoken to a number of electoral administrators, I have considerable sympathy for the strains under which they work and the efforts which they put in to maintain as complete and accurate a register as possible. We will come back to the issue of how electoral registration is maintained on our third day in Committee.

We will of course continue to monitor and assess the effectiveness of the system during the five-year period, but we are confident that at the end of it the transition will have been fully taken through and we will have achieved a relatively stable system. When I say “stable system”, I say to the noble Lord, Lord Maxton, that I am also confident that we will have moved to a considerable extent towards an online system. I recall telling the House some months ago that the DWP expects that the number of its customers who interact with it online will have moved from some 20% to some 80% over the next 10 to 15 years, so we are in a system in which we will be moving from paper and letters to online interaction. I am also confident that we will find that data matching and data checking will become more and more constructive and accurate as a means of checking whether someone who registers is precisely who she says she is.

Surely the point about data matching and so on ought to be that people go on the register rather than the other way round. Rather than checking whether or not someone is accurate, there ought to be a way of putting people on to a register and then saying to them, “Are you the person who the register says you are?”.

The noble Lord is asking some very large questions that of course relate to his preference for having a central register for all citizens, which would mean an ID card. That is rather larger than the remit of the Bill, as he well knows. Over the two years we will be conducting some further data matching and data mining to confirm existing electors. There will be individual invitations to those who are not confirmed by this process—in other words, concentrated individual canvassing rather than an overall individual canvass—a full household canvass in 2015 and a carry-forward to protect those who have not been contacted by the 2015 general election. There will be a civil penalty to encourage applications and the change will take place at the time of the next election when there will be the highest amount of popular interest in politics. I think I recall correctly that in the run-up to the previous general election some 500,000 additional voters registered in the two to three months before the election. That will bring a number of people back on to the register. We are confident that the efforts that will be made during the period of transition will complement each other to a point where we have reached at least the current level and, we hope, a great deal more.

On Amendment 36, as we go through this transition, the Electoral Commission will be carrying out research to give us measures of how well we are doing and to give us an after-measure using the December 2015 measures. We are confident that we can rely on the Electoral Commission to give us the figures that we need.

Before the Minister leaves that amendment, will he say why, as I gather he is resisting it, he wants to deprive Parliament of the opportunity to debate what the Electoral Commission finds and propose remedial measures if necessary? Is he so confident in what he is producing, or is there some other reason why he does not want to give Parliament the right to scrutinise that report?

I envisage that Parliament will continue to scrutinise this as it goes through. I recognise that this is a concern for the whole House, and it may well be one of the things that we need to discuss off the Floor between Committee and Report. The Government are not convinced that we need to have an absolute point at which Parliament says yes or no to the entire transition, partly because, if we have gone through the two-year to three-year transition, there is the question of what the alternative should be if you have not gone far enough. That would mean a much more out-of-date register, which we would know would be extremely inaccurate by then if we failed to carry through. For myself and for the Government, we prefer a process in which a dialogue will be continuing as we go through the transition. A number of experiments will be taking place at that time to ensure that we achieve the aim that we all need. We are confident—

Will the Minister remind the House of the legal provision in the Bill which would allow the Government to retreat from compulsory individual electoral registration if everybody agrees that the transition has not worked and there is an unacceptable reduction in the completeness of the register? The Minister is talking as if the transition is bound to succeed, but everybody accepts that it might not. What happens if it does not?

My Lords, I said at the beginning of my speech that we have been suffering from a decreasingly complete and accurate register over the past 15 to 20 years. The current register is very imperfect. That is the reason why I hope that we all agree that we need to make this transition. If we were to come to a point halfway through the process where we recognised that there were some severe problems, we would have to look at those problems because the current register is increasingly suffering from inaccuracy and incompleteness.

I will have to consider that and come back to the noble and learned Lord. I recognise that part of the reason that we are resisting this is because if you then say no to the transition, what do you go back to? That is something that we clearly need to think through.

There is a precise and important point that relates to this amendment. Will the Minister confirm that there is no provision in the Bill if we come to that conclusion that the system is less satisfactory than the present system? We know that the present system is far from satisfactory at about 82% complete. If under the new system IER is only 65% complete and there is no provision in the Bill to deal with that problem then, would it not be better to have some provision so that Parliament could look at the issue rather than just the Government deciding whether to start again with a new Act?

I think I need to take that away as well. If we were to go back to the old system, we would face the risk that we were retaining a much larger number of inaccurate and fraudulent entries in the system. Part of the reason for this Bill is to remove those fraudulent entries.

I do not wish to sound pedantic in relation to this issue, but it is not a question of going back to the old system rather than using the new one. The amendment that I have tabled for discussion later on is about whether the carryover from the old register needs to be continued for longer. It may be that if we have not succeeded with IER in the way that we hope, we might continue with the carryover for rather longer. That is a decision that Parliament should take at the appropriate time. It cannot take it during the passage of this Bill because we will not see how the data matching and data mining pilots have succeeded. We will not have that information, but we should have that information, and decide on it, before full implementation, by which I mean ending the carryover.

I recognise that we shall come back to some of the issues that have been raised when we come to debate the noble Lord’s Amendment 58, which we have almost been debating. The question of a further carryover at that point will unavoidably involve carrying over a large number of names about which we will all have less and less confidence because they will be people with whom electoral administrators have had no contact for the previous two years, in spite of considerable efforts—letters and attempts to canvass—to check their data. The Government would be very reluctant to carry over further than that, but I take the degree of concern that we hear around the Chamber seriously, and we will consider that further. Having offered these responses to a very wide-ranging debate, which has touched on almost everything from Scottish devolution to central registration and the authoritarian system of identity cards that the noble Lord, Lord Maxton, loves so much and a little on the computer revolution, I ask the noble and learned Lord to withdraw his amendment. We will continue to discuss many of these very important issues as we go through Committee and into Report.

My noble friend has offered to write to me, which I appreciate, and I do not want to detain the Committee with too many matters Scottish. However, Amendment 36 suggests that a report should be brought by the Electoral Commission,

“on the accuracy and completeness of the electoral register in each part of the United Kingdom, which will detail variations in registration rates within and between the different parts of the United Kingdom”.

I have no idea what the First Minister of Scotland is proposing but it sounds to me like he is going to bring a Bill before the Scottish Parliament that will allow for individual registration by 16 year-olds on a voluntary basis. That would result in the political parties campaigning. No doubt he thinks that the Scottish nationalists will be able to get more 16 year-olds to be on the electoral register than otherwise. If, as my noble friend was suggesting in his earlier remarks, he sees that as being akin to the present situation where you have Peers on the electoral register who are allowed to vote in some elections but not others, I am deeply shocked by that. The reason why Peers do not vote for elections to the House of Commons is that we are our own representatives in Parliament, which is entirely consistent.

Are we not in danger here of ending up with a complete dog’s breakfast of an electoral register in Scotland which is not consistent with England because the Government appear to have washed their hands of responsibility for the electoral register and the conduct of elections? I thought that that was a reserved matter. It has nothing to do with devolution but everything to do with the Minister’s responsibilities.

My Lords, I recognise the importance of that issue, which has grown up, so to speak, since we began the parliamentary discussion of this Bill. I think it is fair to ask that I might take that back and check very completely, including the accuracy of these stories in the Scottish media, and that we should return to this issue later.

The noble Lord, Lord Forsyth, is being rather unusually moderate in what he is saying. As the referendum is not until October 2014, it will be the current 14 and 15 year-olds whom they will be trying to get on the register. The significance of this is very substantial. I am grateful that the Minister has given an assurance that he will write to us about this. I hope that it will be after consultation with the Scottish Executive and that it will be a detailed response.

Of course, and I hope that the noble Lord will apologise in due course to the noble Lord, Lord Forsyth, for describing him as moderate.

Before the noble and learned Lord either withdraws or presses his amendment, perhaps I may say a few words. I have held back to hear the noble Lord speak from the Front Bench. We have had a very interesting debate. We have covered all sorts of aspects, from the Scottish aspect to whether we should return to the debate about central register and identity cards. We have discussed the nuts and bolts and the administrative problems that arise from the Bill.

The noble Lord said something very interesting about the motivation to vote, which is what concerns me. In a real democracy, the motivation should come from the heart and the mind, and because people believe that it is worth getting on the register and worth going out to vote. I am of an age when the register was about 90% accurate of those who were entitled to be on it. However, that has fallen considerably. People were on the register then because they wanted to be on the register, and they insisted that they were on it—and God help the registration officer if his or her name was not on the register.

Something has gone wrong, because people now do not do that. I go back—because I have fought many elections in my life, as other Members of this House have done. I remember the election of 1955 when in Reading Ian Mikardo was under pressure. In that election, because people were motivated to go out to vote and to be on the register, we got an 85% turnout—and of course he won. He was not supposed to win, but he won because of the people’s motivation. That was a good word that the Minister used. It does not matter what we say about going around and getting people on to the register; what we really need is the motivation of the people themselves to go on to the register and to believe that it is worth going out to vote because it makes a difference. At the moment, they see no difference between the political parties. They believe that it does not matter what they say or what they do because the Westminster and Whitehall elite will do what they think. As well as being concerned in this Bill about the nuts and bolts, the administration and even Scotland, we should really be thinking about whether the political class is doing sufficient to make people enthusiastic about getting on the register and going out to vote.

My Lords, the noble Lord, Lord Stoddart of Swindon, refers to a golden age when he himself sought office by election and when everybody was very keen to vote. Now we are in a different age, or so he identifies—maybe because he is no longer seeking election and, as a result, there is not that motivation on the part of people to vote.

It has been a very interesting and important debate. At its heart was the issue of what steps would be taken to ensure that the move from household to individual electoral registration would not lead to an undue reduction in the number of people registered. At the heart of our amendments was the idea that you have to have independent assessments made of that. What emerged in the debates was that the Government were so supremely confident that all would be well that they were removing the involvement of the Electoral Commission in giving independent advice, and there is no mechanism, other than a new Act of Parliament, to ensure—

It is important to understand that the concern is to prevent a further reduction in the completeness and accuracy of the register. I stressed very heavily in what I said at the beginning that part of the problem that we face is that the register has lost a good deal of completeness and accuracy over the past 20 years.

I agree with that, which makes it even more significant to ensure that there is no undue reduction in relation to the number of people who are registered.

The debate was very marked by the forensic power of some of the interventions. That of the noble Lord, Lord Forsyth, was very effective, because I have to say with respect—and I do not blame the Minister for this—no answers were given to the points that he raised. The noble Lord, Lord Rennard, gave a very well informed analysis of what the effect may be. My noble friend Lady Jay indicated what the constitutional importance of it is, while the noble Lord, Lord Maxton, urged us to vote in the way in which we vote in “Strictly Come Dancing”, although that may not necessarily be what we have in mind. I apologise to the noble Lord, Lord Tyler, on his 71st birthday, for not flagellating myself for my own historic failures. I can see that that was what he had in mind, and it would have been a birthday treat.

The noble Lord, Lord Wills, is dead right when he says the critical issue is how we check that there is no undue reduction and what we do if there is. The noble Lord, Lord Dobbs, rightly pointed out that completeness and accuracy are both important and indicated how important registration and the boundary changes are in that respect because they are obviously linked. The noble Lord, Lord Wigley, treated us to a trip round Wales in relation to registration, which is important.

I am grateful to the Minister for giving us an interesting update of general points in relation to this area. However, with respect to him, he has to deal with the basic point that has been made all round the House: namely, that you have to explain why you are doing this much quicker than you did before and what happens if it goes wrong or there are inconsistencies between the positions throughout the United Kingdom. Those were the questions that were being asked right round the House in this debate. There was real concern that there will be problems in relation to the intervention of individual electoral registration. With respect to the Minister, he gave me the impression that the Government had not given any thought to what would happen if those problems materialised. That is why these amendments are designed to get as much information as possible before Parliament before the final decision is made and to investigate what we do if this matter goes wrong.

The Minister has indicated that he will write to a large number of noble Lords. Therefore, it is obviously sensible to wait to see what he says. I will not press this amendment to a vote. However, real concerns have been expressed and the Government should take note of them. With the leave of the House, I wish to withdraw Amendment 1.

Amendment 1 withdrawn.

Clause 1 agreed.

Schedule 1 : Register of electors: alterations and removal

Amendment 2

Moved by

2: Schedule 1, page 16, line 20, at end insert—

“( ) The Minister must ensure that a formal appeals process is in place for any person in respect of whose registration a determination has been made under subsection (1).”

My Lords, this is a small but important point. It is a probing amendment, but I would very much like some assurance from the Minister.

Schedule 1 is about the registration and removal of electors on the register and Amendment 2 relates to an appeals process. We on this side of the House believe that people who are excluded from the register under the new system should have a legitimate right to appeal against the decision made by the electoral registration officer. The ability to cast a vote is a fundamental right and a key part of civic society. As the Government’s own implementation plan states:

“Registering to vote matters. It is the building block of our elections and an important civic duty. It provides people with an opportunity to elect their Member of Parliament, their local Councillor or Member of the European Parliament and is used as the basis for important activities like Jury Service”.

We believe that as many people who are eligible to be registered should be. I believe that the higher the turnout at elections, the better. I say that not just because I speak for a political party. As we have already mentioned today, and as I am sure will come up again as your Lordships’ scrutiny of this Bill progresses, there are known risks associated with the move to individual electoral registration. People will fall off the register, especially in the interim, and especially under this Government’s plan as so many of the safeguards that were in the 2009 Act, which my noble friend Lord Wills was instrumental in introducing and was referred to in the debate, have been scaled back.

In the spirit of tackling voter fraud, which we know is the key motivation behind this Bill, and behind its speeded up implementation plan, some of those who fall off the register will do so legitimately because they should not have been there in the first place. Of course, that is right and that is what should happen, but some people will be removed in error. Given the importance of the right to vote, and so the importance of being registered, those who do fall off should have an opportunity to appeal. Given the importance of the method, I would like to say a few things about the appeal.

At the moment, under the current system of registration, there is a clear appeals process. It derives from new Section 10A(3) of the Representation of the People Act 1983, and regulations set out in 2001. The relevant legislative base is sufficient for the current system but will these provisions be suitable once the transition has been made to individual electoral registration? Could they be fully applied, will any amendment be needed to the appeal provisions, and does the Minister see any merit in incorporating the 2001 regulations into the Bill, so as to provide assurance that there is a valid appeal process that Parliament has dealt with and approved? It is a probing amendment and I should be interested to hear the Minister’s answers. I beg to move.

My Lords, I want to contribute briefly to the discussion of this amendment on the appeals process but, before I do so, perhaps I should put the record straight in relation to the 2009 Act. There was not unanimity, despite what was said earlier, about the previous Government’s timetable for the introduction of IER. Both my noble friend Lord Rennard and I, during the Second Reading of the Bill on 18 March 2009, made it clear that we hoped there would be an acceleration of the programme, which is of course what the present Government are doing. Since then we have found that the previous register was so incomplete that there was a greater case for accelerating the process.

I am sure that the noble Lord would not want to distort the historical record on his birthday. I do not know whether he and his noble friend were speaking on behalf of the Front Benches in that case but, certainly in the House of Commons, what actually happened was that the Front Benches agreed on the Political Parties and Elections Act and the timetable for that legislation. That is a matter of record in Hansard.

My Lords, as may often be the case, your Lordships’ House was wiser than the other place on this issue, and I invite the noble Lord to look at Hansard for 18 March 2009, cols. 257 and 284.

Returning to the amendment of the noble and learned Lord, Lord Falconer of Thoroton, I too have some concerns. It is important to make sure that there is some form of transparent judicial appeal process in which everyone has confidence, not least because removals can be serious, not just to the individual concerns but more generally. I draw attention to the fact that the implications, not least in terms of the Political Parties, Elections and Referendums Act, could mean that a donor is found to be illegitimate because he or she has been removed from the register. There could be considerable consequences from any form of removal. Therefore, although I do not have a strong view about whether the tribunal process would be the right one—doubtless, the Minister’s officials may already be providing reams of advice on the cumbersome problems that could be caused by a new tribunal—will my noble friend consider extending the existing tribunal process that relates to the civil liability issue under the Bill?

I do not have a magic answer to this but surely if there is already a tribunal process under the Bill, perhaps it might be extended to deal with appeals of this sort. That would seem to be a neat way to deal with this issue, and I look forward to hearing whether my noble friend would find that a helpful way forward.

My Lords, I thank the noble and learned Lord for highlighting the important issue of individuals having a right of appeal if they feel that they have been incorrectly removed from the register. This is similar to an amendment tabled by the Opposition in the other place, and on that occasion Wayne David accepted that there is an appropriate appeals mechanism in place. Indeed, he said he was pleased that the Government’s reassurances were clear.

I therefore confirm that Sections 56 and 57 of the Representation of the People Act 1983 already make provision for appeals against the decisions of registration officers in Great Britain, including decisions to remove electors from the register. Paragraph 17 of Schedule 4 to the Bill makes the necessary amendments to ensure that this continues to apply under the new system. I refer noble Lords in particular to the proposed insertion of new paragraphs (azd) and (aa) into Section 56(1) of the 1983 Act dealing with appeals against decisions under new Section 10ZE.

My apologies to noble Lords for the technicalities involved in that. However, there is provision within the Bill which I hope will reassure the noble and learned Lord and, on that basis, I ask him to withdraw the amendment.

I am not only reassured but moderately crushed by the reference to Mr Wayne David. On that basis, I will withdraw the amendment.

Amendment 2 withdrawn.

Schedule 1 agreed.

Clause 2 : Applications for registration and verification of entitlement etc

Amendment 3

Moved by

3: Clause 2, page 2, leave out lines 13 to 28 and insert—

“(2A) Provision made under sub-paragraph (2) authorising or requiring a registration officer in Great Britain to—

(a) require a person who has made an application under section 10ZC or 10ZD to provide evidence that he or she is the person named in the application, or(b) require a person who has made an application under section 10ZC or 10ZD, or any person who has an entry in a register, to provide evidence for the purpose of enabling the officer to determine whether a person is entitled to be registered in a register maintained by the officer,must specify the kind of evidence that a person may be required to provide (for examples, see paragraph 3ZA(5)).”

My Lords, I shall speak also to Amendments 6, 8 and 9. Noble Lords will be aware that Amendment 7, in the name of the noble and learned Lord, Lord Falconer, is also in this group. These amendments all cover the question of what forms of acceptable evidence can be used to verify entitlement to register. The Government are responding to earlier criticisms that this should not just be left to ministerial guidance but should be prescribed in secondary legislation. It has always been the Government’s intention that the evidence required in an initial application will be prescribed in regulations; nevertheless, the Bill introduces permitted guidance to be used.

There is an important distinction between the evidence provided in an initial application, which we might call primary forms of evidence, and the alternative forms of evidence that may be used if an applicant cannot supply the primary evidence or if it is not possible to verify their identity without further evidence.

As set out in the Bill and in the proposed draft secondary legislation, published in September, the forms of evidence used in initial applications will be the applicant’s date of birth and national insurance number. We had intended that the accepted alternative forms of evidence, examples of which are set out in the proposed draft secondary legislation, would be set out in guidance by the Secretary of State. This was to allow flexibility to respond to any potential threat to the integrity of the register resulting from the security of a form of evidence becoming compromised by fraudsters with excellent skills offering to sell well designed things on the internet or whatever. In the case of evidence used in applications, this is most pertinent in responding to an increasing risk of fraud if a previously accepted form of evidence is found to be compromised and open to fraud. In such a situation, action must be taken quickly, and we felt that this justified the use of guidance in prescribing these forms of evidence.

However, in its report on the Bill, the Delegated Powers and Regulatory Reform Committee expressed concerns about the lack of a requirement for forms of evidence to be set out in regulations. This was echoed by the Electoral Commission and the Constitution Committee of this House. We recognise these concerns and are therefore seeking to amend the Bill to ensure parliamentary scrutiny of the prescription of forms of evidence, while allowing for flexibility.

The amendment will ensure that the list of evidence that is acceptable for the verification of applications is set out in regulations subject to the affirmative procedure. To attain flexibility in responding to extraordinary situations and unforeseen circumstances, we have also provided in the amendments that regulations removing allowable forms of evidence will be subject to the negative procedure. This will allow the Government to act quickly in response to information that an accepted form of evidence is no longer suitable for use in verifying applications. We feel that this strikes the right balance between parliamentary scrutiny and flexibility in response to potential threats to the integrity of the register. I beg to move.

My Lords, I shall speak briefly to this group. Because I am referring to the advice given by the Electoral Commission I should put it on record that I have served as a member of the cross-party informal advisory group for the Electoral Commission in the past.

The government amendments are very welcome and specifically take the advice of the Electoral Commission and the Constitution Committee of your Lordships’ House about the list of forms of evidence that could be used in the electoral registration process and how they should be set out. However, Amendment 7 in the name of the noble and learned Lord, Lord Falconer of Thoroton, would make the Bill less flexible in this respect by setting out that the national insurance numbers and dates of birth should be the primary evidence required when applying. Many of us may have some sympathy with that because it is obviously such a fundamental building block and it may be thought by Members of your Lordships’ House that at least that has the advantage of some clarity at the outset. However, there is clearly a danger that if the national insurance numbers prove more cumbersome than all of us hope, and certainly than the Government intend, the only way to alter that primary evidence would be by primary legislation, which is clearly very bureaucratic and perhaps a matter of administrative overkill.

I suppose that one’s judgment on the merits of Amendment 7 will depend on how paranoid we all are about future Governments and whether the likelihood is that the list might ever be changed to set too high a bar. For example, it might suddenly be required that not just the national insurance number but some other form of identity, such as a library card or a bus pass, in my case, should also be available. That may seem unlikely and the regulations would anyway be subject to affirmative procedure, but on the whole I prefer the Government’s rather more flexible approach. I look forward to hearing what the noble and learned Lord, Lord Falconer, and the Minister have to say. Inflexibility is something that your Lordships’ House is rather good at identifying in advance, so avoiding the bureaucratic nightmare that may result.

My Lords, first, I take the opportunity, if I may, to say to my noble and learned friend on the Front Bench that I was not suggesting that we should vote in the same way as on “Strictly Come Dancing”. I was suggesting that we are still voting in a very conservative and old-fashioned way, whereas in other forms of national life, we do it differently.

I am a little concerned that there has been great opposition to my idea of a national register of some sort, but we are now talking about national insurance numbers. Who holds them? Where are they registered? Who keeps them? Who says, “That is your national insurance number”? Is that not a form of national register?

My Lords, this is an interesting and important debate. The original draft of the Bill in effect allowed the Minister to determine, without parliamentary scrutiny, what the identifier should be. The amendment advanced now by the Government in effect says that Parliament has to approve the Minister’s choice, as it must be approved by the affirmative procedure. Our Amendment 7 would provide that Parliament has to decide in primary legislation what the individual identifiers must be.

Everybody agrees, including the Government, that the first proposal is not acceptable and that it would be wrong for the Minister to be able to determine it. People would be worried about the extent to which it might be used for political advantage. The second option has the problem that statutory instruments are rarely rejected by Parliament, so it gives pretty big power to the Minister. The third option has precisely the problem identified by the noble Lord, Lord Tyler—it is very inflexible. I recognise completely that the identifiers chosen might turn out not to be sensible at the end of the day, depending on how the system operates.

This is such an important issue that we on this side are loath to give the Minister the power that comes from being able to determine it him or herself or by statutory instrument. Subject to the Minister’s no doubt persuasive arguments, I currently favour our amendment, but I wait to hear what the noble Lord has to say.

We are all in a learning process but I am concerned about Amendment 7 and the requirement for a person to provide their date of birth and national insurance number. A register is tied in to a constituency and it would be irrelevant if someone’s date of birth and national insurance number alone could get them on to a register because that has to be tied in with their place of residence. I believe that an electricity or rates bill would provide more proof of whether a person was entitled to be on a constituency register than their age or national insurance number—although that may be in the list that was not available before now.

The Minister has touched on other evidence but I believe that there are more ways for a person to prove that they are a bona fide elector than by giving their date of birth. For example, I live in London for several days a week—many of us do; I am not the only one. But my main home is in Glasgow, and if I sought to get on the electoral roll somewhere in London just by turning up and saying, “My name is Michael Martin and my date of birth is 3/7/1945 but I cannot recite my national insurance number”—I can never remember it—that would not prove that I was entitled vote in a given constituency.

Perhaps there is something in the legislation that ties an individual into a constituency, but if I went to an electoral officer and said, “Here is an electricity bill, gas bill or community charge bill”, that proof would tie me in more than my date of birth.

My Lords, we are getting into some of the technical complexities of the Bill. One of the reasons for preferring national insurance numbers is that it is possible to buy off the web electricity bills that are specially designed for you. We are looking for ways of ensuring as far possible that we have accurate identifiers.

The noble Lord, like many of us in this Chamber, is one of the difficult exemptions of people who wish to be registered in two different places because they have two different homes and therefore do not entirely match with the first identifier, which is that your national insurance number is likely to have your current address attached to it; these naturally go together. I am told that some voters do not have their date of birth in their head either. There is a tendency in some of our ethnic communities to assume that your date of birth was 1 January of whatever year it was that you were born.

None of these things entirely matches everyone’s predicament and we are therefore attempting to design something which is as flexible as possible while recognising the importance of parliamentary scrutiny. The changes we have made between the draft legislation in 2011 and the Bill’s introduction into the other place in May this year and these further amendments acknowledge the concerns raised most recently by the Delegated Powers and Regulatory Reform Committee that we need to make sure that there is some parliamentary scrutiny. However, when it comes to the alternative evidence provided, we believe that, because of the changing circumstances in which we are operating, some flexibility is needed. We do not wish to box everyone into simply the NINo and the date of birth. I can almost remember my national insurance number—there are two numbers in the middle that I cannot quite get straight—but I must learn it off by heart.

The noble Lord, Lord Maxton, as he did earlier, wants to raise some much wider questions. I have considerable sympathy with where he is coming from. In 20 years’ time it is unlikely that we will vote using pencil and paper in polling stations, but that is a larger concern for the longer term, and as we have seen in some other countries, on occasion electronic voting is not without its own problems. We are retaining the principle of local registers. When talking to electoral administrations, something I am told immediately is that they have for many years used council tax registration as a means of checking where people live and whether these are accurately placed on the register. The council tax, of course, only gives the head of the household. Indeed, perhaps I should have said in responding to the previous debate that one of the reasons given in recent research for incomplete registration is that the single person’s discount for council tax encourages some people not to put down the others living in the household because that would raise the level of council tax. We have moved on from the poll tax as a disincentive, but the single person’s discount is, we are told, is a disincentive in a number of ways. There is a whole range of different factors to look at as we go into the details of the register.

The noble Lord, Lord Maxton, and the rest of us will enjoy debating the impact of the data revolution on the way the citizen interacts with the state. I find it fascinating myself, and I think that it will revolutionise that interaction over the next 10 years. However, noble Lords in this House may be among those who are slower to take part. I am sorry that the noble Lord was unable to come to our demonstration of online registration. The Government are considering many other options in terms of how one puts various things online. For example, some experiments show that if, when someone reregisters their car online, they are also offered the choice of transferring to their local authority and checking for a parking ticket, that increases radically the number of people who apply for a ticket.

As someone who is of the age where they have to renew their driving licence every three years, I can inform the noble Lord that when I do so, all I have to give is my passport number. The photograph that is used on my passport is then automatically used on my driving licence as well.

The noble Lord makes a useful point. That is precisely the sort of direction in which we wish to go. The noble Lord will also know, of course, that a large proportion of our population does not hold a passport.

I hope that the Committee will be happy to accept these government amendments. We think that they strike the right balance between flexibility and scrutiny. I hope that the noble and learned Lord, Lord Falconer, will also accept that while we understand the direction in which his amendment is going, it threatens to make us a little too inflexible. It is important to retain a degree of flexibility in terms of the alternative forms of evidence because the most appropriate alternatives may well change over time.

Amendment 3 agreed.

Amendment 4

Moved by

4: Clause 2, page 2, line 32, after “description)” insert “, and must require a registration to an officer to impose a civil penalty (under section 9E of the Representation of the People Act 1983) where a person refuses to give information prescribed in regulations under this section”

My Lords, I wish to speak also to Amendments 5, 21 and 22 tabled in my name and that of my noble friend Lord Tyler. These amendments concern the detail of potential civil penalties. From the outset of the consultation on the draft Bill, I argued strongly that the existing legal requirement to fill in a registration form when invited to do so must continue under individual registration.

At the moment, electoral registration forms have something like an 80% response rate. Although that is not as high as we would like, it is a clear indication of the value of the statement on the form that there is a legal requirement to complete it and to return it. The civil penalty is a distinct arrangement for individual registration as opposed to the household inquiry form. In my view, the present criminal offence for failing to fill in a household form is proportionate in that failing to do so can prevent others from having the right to vote. That criminal offence will remain for the household inquiry forms under IER. The civil penalty associated with the follow-up individual registration process should be welcomed by electoral registration officers since it retains a serious sanction for them to use as a last resort when someone fails to fill in an individual registration form, but one that would be less cumbersome than having to initiate a full criminal prosecution.

I am very pleased that the Government have given us the benefit of seeing in draft form the regulations that will govern the operation of the civil penalty. Like all our amendments, Amendments 21 and 22 are there simply to encourage the Minister to look at whether the civil offence of not filling in the form when requested to do so by an electoral registration officer should be one of strict liability; in other words, can not knowing or not understanding that you were supposed to fill it in and return it be a proper defence? I am sceptical that anyone, after a registration officer has gone through all the steps set out in the draft regulations, could not know or understand that there is a legal requirement for them to register. A great deal of time and money could be wasted with people claiming that in fact they did not know or understand.

Ministers have talked about the level of the civil penalty being akin to a parking fine. I see that the noble and learned Lord, Lord Falconer of Thoroton, wishes to address that in his Amendments 23 and 29. I suggest that if it is to be like a parking fine, the idea that you can escape it by simply saying that you did not know you were responsible or you did not understand the rules is misplaced. As anyone who has received a parking fine—as I suspect many of us will have done at some point—will know, not understanding or not knowing that you have to pay it is not a defence. If we could all claim ignorance, many more of us would park illegally with impunity. I would be most grateful for the Minister’s comments on that point in his response to Amendments 21 and 22.

Amendment 5 deals with trying to ensure that people are indeed fully aware of the potential fine. If it is made a strict liability matter, as it probably should be, it is clearly even more important that people are informed at every opportunity of the risk of a fine if they do not register. To that end, we believe that this fact must be spelled out on the individual registration form itself. The draft regulations before the House suggest that the prospect of a penalty will be mentioned only in the “invitation to register”, which is effectively a covering letter to the form. Clearly, there is a risk that any covering letter could be set aside in haste and that an elector would not know of the legal requirement to register if it is not printed clearly on the form as well.

Finally, Amendment 4 seeks to equip electoral registration officers with a civil penalty as a means of obtaining necessary information from people when they request it. The Government’s present plans, as I understand them, are for the civil penalty to be imposed only if someone fails after several times of asking to return a form. However, there is a risk that someone may not provide enough information to permit the electoral registration officer to proceed with a registration. The Government’s position is that someone who has not provided enough information should not be subject to criminal prosecution under the present offence of failing to provide information when requested, yet the Bill and the draft regulations do not provide any way for the established alternative to criminal prosecution—the civil penalty—to be used instead. We believe that this needs to be addressed. In tabling all these amendments, we are seeking some reassurances for the record—to see in Hansardthat these issues will be dealt with and remedied in the final version of orders which come before this House.

Commenting briefly on Amendments 23 and 29, I do not personally think that it would be right to put the level of the penalty in the Bill. Clearly, it will need to change from time to time, just as the previous criminal penalty changed many times, from £20, I think, when it was first introduced in 1991 to £50, £400 and then to £1,000 over the years. Since this will change from time to time, I am not sure we should fix it now for ever at £100. However, if the process does work, people will ultimately find that it is simply easier to register than it is to pay any fine. All I would hope in this part of our deliberations is that the Committee will be told the latest government thinking on the level of penalty.

My Lords, I will address the two amendments in this group in my name and that of the noble and learned Lord, Lord Falconer. They concern the new civil penalty in the Bill, separate from the criminal offence, with, as we have heard, a possible penalty of £1,000. The civil penalty is for failure to co-operate with the electoral registration officer.

It remains a serious civic matter for people to be on the register, not least of course for jury service, for which nearly all are eligible, although not myself and my noble and learned friend Lord Falconer. Having been on the judicial bench—in a small way in my case, as a magistrate—we are I think are excluded from jury service. However, for the vast majority, of course this is the important source for identifying those who will serve on juries. Also, as democrats, as was mentioned by the noble Lord, Lord Dobbs, it is an important right that everyone who has the vote—for which many have fought in the past—is able to exercise that right. They need to be on the register because they need to be able to vote at the moment at which the mood so takes them. Often, that may be only days before an election, when they suddenly want to kick out whoever is there or, on the contrary, maintain the incumbent; or in some way influence the Government or the local authority. However, it is only if they have registered at the appropriate point, rather than a day or so before the election, that their right can be exercised. It is for this reason that it is so important for us to get this registration accurate and complete as early as possible.

We will hear—and already have heard—a lot about the importance of the register being complete, but it behoves all of us to play our part in that by responding to the request for information from an electoral registration officer, so that we can, if eligible, be correctly entered on to the register. The noble Lord, Lord Rennard, suggested it could perhaps be done by statutory instrument but the significance of Parliament writing it into law in the Bill and deciding the penalty for failure to comply with this part of our civic responsibility should not be underemphasised. For that reason, Amendment 29 would remove from Schedule 3 the power to determine the amount of the civil penalty by regulation and Amendment 23 would write into the Bill that it should be £100.

The exact amount perhaps need not detain us this afternoon, although it surely should be at the very least the same as a parking ticket, which some in the Committee may find themselves frequently having to pay. We can perhaps discuss the exact amount some other time but surely the principle is that Parliament, with this new system of registration, should fix the amount clearly in the Bill as an indication of the seriousness with which it views registration. That is the point that we want to make.

I shall speak to the amendment moved by the noble Lord, Lord Rennard, and his birthday compatriot the noble Lord, Lord Tyler. I also wish him a happy birthday, and I am sorry that the noble Baroness, Lady Gould, is not here to pass her wishes on; if she is watching, we can wish her a happy 80th birthday today. I will add emphasis to what has been said about those civil penalties and their use by registration officers. Particularly for the initial use of this brand-new system of registration, it will be important to impress on registration officers the significance and importance of the task that they are undertaking on our behalf, in part so that they communicate this effectively to all those with whom they will have dealings in obtaining and then registering relevant information. If individual electoral registration is to be the success that we all hope for, everyone must play their part. With the penalties being the only real weapon in the hands of those on whom we will depend to produce the register, we must give the EROs the backing to employ civil penalties if need be, and particularly the ability to have the threat of using them to the full.

My Lords, we are in Committee and it is therefore good to explore these matters. I am worried about there being a penalty because when I was first allowed to vote at the age of 21 I was a journeyman on a journeyman’s salary. Now, however, people can vote at 18. We are talking about a young person of 18 having a fine imposed on him or her for not co-operating, and I worry about that. If the amendment said that it was to be someone over 21, I would be less concerned, but I worry because I have had experience of arguing and campaigning against the poll tax. Bearing in mind that boys and girls of 18—young adults—had to pay that the poll tax, which was had changed from a household debt to an individual debt, one of our big worries was that they would not have the assets to do so. We were proved to be right: when a youngster went into arrears, the parents would bear the responsibility of the cost so that the family would not be shamed by the sheriff’s officers turning up.

The danger here is that we are going to impose fines en bloc on anyone who is an elector. It might be argued that, previously, the householder had responsibility and that there was a fine there anyway. However, when someone takes a on home they realise that there are responsibilities tied to it. At 18 years of age, however, I can tell your Lordships that there was not much in the way of assets in my situation. Usually, as an apprentice, when you got your wages on a Friday, they were spent by Monday morning. That is what is going to happen to some of these youngsters.

Another thing is that when trying to get some young people to co-operate with filling in a form, we might cast our minds back to when we were 18 ourselves. The form that we got every year was a tax form and we usually did not bother filling it in because someone would tell us, “If you don’t fill it in, they tax you as a single person”, and we were single people. This amendment would cause problems to the registration officer because it is a catch-all. We are going to have concerns about those between 18 and 21. I would certainly be worried about supporting anything that would impose a fine on young people. The thing with electoral registration is that if you are not on the electoral roll, you cannot exercise your right to vote. I know that if a youngster should complain, “I’m not able to vote and I’m not happy with our Member of Parliament or local councillor”, their parents or someone else—even the electoral officer—might put this to them: “That’s your fault because you did not bother to fill up the forms”. But to impose a fine and to compare it with a car parking fine is erroneous. When you get a car, you have at least made a certain amount of funds available to yourself; that is not necessarily the case with a young person. When you go on the road in a car, you run the risk of putting it in a place where it should not be and getting a parking fine. If you put two hours’ worth of money in a meter and you are there for two-and-a-half hours, you take the chance that a parking warden will catch you. It is not a comparison of like with like. For those reasons, I would be uneasy to support a fine for that age group.

My Lords, we are now navigating the delicate area between voluntary and compulsory registration. I think that we all recognise that, for a British state which is by tradition a limited-government state in which citizens have a right not to be too closely engaged with it, this raises a number of very delicate issues.

The purpose of the civil penalty is to encourage citizens to fulfil what we all regard as their civic duty and to make it clear that there are consequences for them failing to do so. It is not intended that it should be imposed on every single person who for whatever reason fails to go through to the complete process. Indeed, the evidence is that prominent inclusion on the registration form of the words, “This is your civic duty. You are subject to a fine if you do not fill in the form”, significantly increases the number of people who fill in that form. That is particularly valuable. But to move on from there to pursuing everyone who fails to fill in the form accurately, or who refuses point blank after many attempts to fill in the form, takes us a little further down the road from voluntary to compulsory voting than many of us wish to go.

I think that we all recognise that one of the important aspects of the transition, which again takes us outside the immediate focus of the Bill but draws on the Northern Irish experience, is that we need to pay more attention to citizenship education—getting into schools and telling young people between the ages of 16 and 18 about what citizenship really involves. We should get them to want to make sure that they are on the register, which too few of them now do, while also perhaps explaining to them that, if they want to obtain credit in future, being on the register is one of the prerequisites for getting a good credit rating. So we are negotiating our way around a range of different factors.

I say to the noble Lord, Lord Rennard, that not understanding that you have to fill in the form as a defence for not applying is also a very delicate area. We know that there are not a insignificant number of voters who are functionally illiterate. We know also that there are a number of voters whose knowledge is English is not ideal. So there is a range of limiting factors. This part of the draft secondary legislation is aimed at those who generally have issues about understanding the requirement being placed on them, whether it is matter of literacy, learning difficulties or knowledge of English. We will look at the language very carefully between Committee and Report to take the noble Lord’s points into account.

In relation to the noble Lord’s Amendments 4 and 5, I emphasise that the civil penalty is intended above all to serve as an encouragement to apply. The Government’s preferred approach to reforms is to keep details of this sort out of the Bill, instead using secondary legislation and guidance to ensure flexibility. It will be for the Electoral Commission to design the forms and the envelopes used in individual electoral registration. Having collected a number of these forms from different electoral administrators over the summer, I am struck by the current diversity in the forms provided, some of which put the importance of civic duty and the potential threat of a civil penalty very prominently and others have it down in the bottom left-hand corner where people are much less likely to see it.

These proposed draft regulations set out a small number of requirements for the content of paper application forms and the invitations that are sent to voters. They include mention of the civil penalty in the invitation but it will be for the commission to decide how best to approach the prominence and wording. For example, it may be that testing shows that a gentle mention of the penalty in the initial invitation works best, increasing the prominence of the message with successive invitations. We are currently undertaking targeted consultation on this publication and we welcome views on the contents. A certain amount of testing is under way on how best to design the forms.

The Government are firmly resistant to Amendments 21 and 22, which seem ultimately to force registration officers to impose the civil penalty on any person who does not make an application to register. Their purpose is the same as that of my noble friend’s other amendments. They would reduce the capacity of registration officers to use their own discretion in judging whether to issue a requirement to register to a person who has failed to make an application to register after being issued with an invitation. Again, we feel that this would take us too far down the road towards compulsion. After careful consideration with key stakeholders, we do not think it appropriate to create a new civil penalty for individuals who, after being required to make an application, fail to do so. We therefore urge my noble friend to withdraw his amendments.

On Amendments 23 and 29, the noble Baroness will recognise the very firm reasons why, in an age where—happily at the moment—inflation is low we nevertheless do not wish to put details of this sort firmly into primary legislation. I am sure that the noble Baroness is too young to remember the old notice that one used to see in trains:

“Penalty for improper use £5”.

When that was first established in railway legislation, £5 was a great deal of money. By the time I was in secondary school, it was rather less money than before—although, when I went out to tea in the local manor house and was tipped £5, it seemed an awful lot of money at that time.

Of course I did not. I would never have thought about it while the train was in the station. I am sure that noble Lords will be as familiar with the song around that as I am.

We intend that the civil penalty should be modest and reasonable. That is why the phrase used is that it should be in the same range as parking fines. The intention is that the amount of the fine should be set out in secondary legislation so that it is flexible. We do not intend and no Government would wish to have to introduce primary legislation on the electoral registration system every two or three years.

I understand what the Minister says here, but the non-payment of a fine can lead to other court actions. Is he not worried that we will get into a wrangle if someone digs their heels in and says, “Look, I do not want to register. I do not want anything to do with registering”? Non-registration is a right that can be exercised by a person, ensuring that their name is kept off the roll—but now we are changing things. Does that then mean that if they refuse to pay the fine, there will be other penalties imposed on that person—even imprisonment?

The noble Lord has been testing the difference between the Government’s approach and that of my noble friend Lord Rennard—who I think wants to be much fiercer on imposing civil penalties. The Government’s position is that the civil penalty is there as a backstop but should not be used to enforce compulsory registration. It should be very much a means of ensuring that forms are returned, not of insisting that everyone registers. That then takes us over into a different situation which, again, would be a change in the traditional, established relationship between the citizen and the state.

My Lords, as I said, the amendments are probing. We seek to continue a dialogue with the Government about the regulations to try to ensure that the system works as well as it should. As we said at the beginning of Committee, we are concerned about what we do if it does not work. Our major concern in considering the Bill is to try to ensure that it does, so the register is accurate and complete.

It is particularly valuable in the new process that the Electoral Commission will be designing the forms for registration, rather than individual registration officers. However, I would still like to press further with the Minister at some point that if those forms are in future to be centrally designed and the Government are laying out in regulations what is required to be on the form, it is important to state on the form the legal requirement that if you do not return this form you could be subject to civil penalty. Thinking in particular about the contribution from the noble Lord, Lord Martin, it is clear to me that legislatures at either end of the building are unaware of the existing rules. For example, at the moment, a young man of 20 in, say, Glasgow, is subject to a fine of up to £1,000 if he does not return the form, because if he lives on his own, he is the householder responsible.

I agree, but a young person of 20 acquiring accommodation and, in effect, creating a household, realises that he or she is taking on the responsibility of a householder. That is different from the carefree attitude that a young person of 18 would have in a house where there is mum and dad and the only worry they have is the price of getting out to the disco and making sure that they have a good time. I accept that once a person becomes a householder, they take on a different type of responsibility.

My Lords, as someone who became a householder at the age of 17 through my family circumstances, I understand the point about responsibility at a young age, but I do not accept that 18, 19 or 20 year-olds will necessarily be worse off under these arrangements. The fact is that they will no longer necessarily be subject to the £1,000 fine if they are on their own in a household; it will be a civil penalty of much lower value. We have talked about that being akin to a parking fine. The obvious point for the 18, 19 or 20 year-old is that all they have to do is to register to vote and then they will not be subject to the fine. That will be a simple and easy process. In future, they can do it online as well as by returning the form. That should not be difficult, and then they avoid the penalty.

My point is that the form should spell that out so that someone of any age or with any language as their first choice can easily see what are their obligations. Some direction is required on that. Looking further on at Amendment 24, tabled by the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Hayter, I am not sure that they have appreciated that those forms will in future be centrally designed by the Electoral Commission and that it will no longer be the job of the individual 400 or so electoral registration officers to design their own form. That is why I am so keen to ensure that this form follows the best possible practice and to continue discussion with government. We have seen how in Denbighshire, Hounslow and a number of other authorities, that the paperwork has been of great effect in persuading people that they should register, of greater effect than in some other places.

On that note, I am happy to withdraw my amendment.

Amendment 4 withdrawn.

Amendment 5 not moved.

Amendment 6

Moved by

6: Clause 2, page 3, line 4, leave out from “(3)” to end of line 7 and insert “must specify the kind of evidence that a person is required to provide”

Amendment 6 agreed.

Amendment 7 not moved.

Amendments 8 and 9

Moved by

8: Clause 2, page 3, line 8, leave out from “that” to “person’s” in line 9 and insert “may be specified include a”

9: Clause 2, page 3, line 19, at end insert—

“( ) In section 201 of the Representation of the People Act 1983 (regulations), before subsection (3) insert—

“(2C) Regulations made for the purposes only of omitting a particular kind of evidence from the kinds of evidence that a person is or may be required to provide by virtue of regulations under paragraph 1(2A) or 3ZA(3) of Schedule 2 shall be subject to annulment in pursuance of a resolution of either House of Parliament (and subsection (2) does not apply to regulations made for those purposes only).””

Amendments 8 and 9 agreed.

Clause 2, as amended, agreed.

House resumed.

Mental Health Act


My Lords, I shall now repeat a Statement made earlier this afternoon by my right honourable friend the Secretary of State for Health on the subject of the Mental Health Act. The Statement is as follows.

“With permission, Mr Speaker, I wish to make a Statement about an issue relating to the Mental Health Act 1983. It has become apparent that there are some irregularities around the way that doctors have been approved for the purpose of assessing patients for detention under the Act. For assessments and decisions under certain sections of the Act, including detention decisions under Sections 2 and 3, three professionals are required to be involved—two doctors and an approved mental health professional, usually a social worker.

In 2002, when strategic health authorities came into being, the then Secretary of State properly and lawfully delegated his function of approving doctors under the Act to them. However, it came to light last week that in four out of the 10 strategic health authorities—North East, Yorkshire and Humber, West Midlands and East Midlands—in a period of time dating from 2002 to the present day, authorisation of doctors’ approval appears to have been further delegated to NHS mental health trusts. I was made aware of the issue and kept up to date with the actions being taken. Our latest best estimate is that approximately 2,000 doctors were not properly approved, and that they have participated in the detention of between 4,000 and 5,000 current patients within institutions in both the NHS and independent sectors. Rampton high-secure hospital is in one of the affected areas. Some patients at Ashworth high-secure hospital are also included.

There is no suggestion that the hospitalisation or detention of any patient has been clinically inappropriate, nor that the doctors so approved are anything other than properly qualified to make such recommendations, nor that these doctors might have made incorrect diagnoses or decisions about the treatment that patients need. All the proper clinical processes were gone through when these patients were detained. We believe that no one is in hospital who should not be, and no patients have suffered because of this. The doctors would have no reason to think that they had not been properly approved. They acted in good faith and in the interest of their patients throughout this period.

In the light of our legal advice, we do not believe that any decisions that have been made about patients’ care and detention require review because of this irregularity. Doctors should continue treating patients who are currently detained under the Mental Health Act in the usual way. We have received advice from First Treasury Counsel that there are good arguments that the detentions involving these particular approval processes were and are lawful, but Counsel also argues the need for absolute legal clarity. The legal advice is that this should be resolved through emergency retrospective legislation.

As soon as the irregularity was identified, my department worked swiftly to identify the best course of action and put the necessary preparatory work in place. It first became aware of this problem last week. Officials immediately sought initial legal and clinical advice. We then swiftly analysed possible options, including the option of reassessing all potentially affected patients, working with the health leads in the regions affected and clinical experts from the Royal College of Psychiatrists. When I was briefed on the situation, I asked for detailed information on the time that it would take and the clinical risks involved in reassessing all potentially affected patients. On Friday, I asked for an emergency Bill to be drafted over the weekend, as a matter of contingency. I briefed the Prime Minister personally the following day. Following further discussions and analysis over the weekend, the decision to introduce emergency legislation was taken yesterday, and we have since worked to prepare the necessary materials. At all times, my priority has been to resolve this is a way that follows clinical advice about the most sensitive way to deal with a highly vulnerable group of individuals.

We have also worked to remedy the problem as it relates to current and future detentions. As of today, all the doctors involved have now been properly approved. The accountable officers for the four strategic health authorities in question have written to Sir David Nicholson, chief executive of the NHS, to confirm that they have made the necessary changes to their governance arrangements. Furthermore, the accountable officers in the remaining six strategic health authorities have written to Sir David to confirm that they have, in the light of this issue, reviewed their own arrangements and that they are in full compliance with the Mental Health Act.

Although we believe that there are good arguments that past detentions under the Mental Health Act were and are lawful, it is important that doctors, other mental health professionals and, most importantly, patients and their families have absolute confidence in the decisions made. That is why, in relation to past detentions, we have decided that this irregularity should be corrected by retrospective legislation. Although we are aware of the problem only in the four areas going back to 2002, the proposed legislation will apply in principle to the approval of all doctors under the Mental Health Act since its introduction in 1983. It will retrospectively validate the approval of clinicians by those organisations to which responsibility was delegated, up to the point when all the relevant doctors were fully reapproved and their status put beyond doubt. The legislation will not deprive people of their normal rights to seek redress if they have been detained for any other reason apart from the narrow issue of the delegation of authority by the SHAs, nor will it affect any future detentions or legitimise any similar failures in future.

We are proposing to introduce the draft legislation to the Commons and, through best endeavours, looking for it to complete its passage through all the appropriate stages in this House and the other place as soon as is practicable. While addressing this technical issue, it is also important that we get to the bottom of how this happened and that we learn any lessons to help inform the operation of the new system architecture from April 2013. As such, I have asked Dr Geoffrey Harris, chair of NHS South and former chair of Buckinghamshire Mental Health Trust, to undertake an independent review to look at how this statutory responsibility was delegated by these four SHAs; and, more broadly, the governance and assurance processes that all SHAs use for delegating any statutory responsibilities. I will also ask him to look at this in the context of the new NHS structures that come into force from next April, to see whether any lessons need to be learnt. It is imperative that this review is swift and I have asked Dr Harris to report to me by the end of the year with recommendations to ensure that every part of the system employs the highest standards of assurance and oversight in the delegation of any functions.

I stress to the House that I have reviewed with lawyers, clinicians and NHS managers possible alternatives to introducing this retrospective legislation. I have been advised that all alternatives would be highly disruptive to many of the most vulnerable patients, and would also deprive many other patients of the care that they need while any action is undertaken. However, all the advice that I have received has been unequivocal in stressing the need for absolute clarity of the legal status of any hospitalisation or detention of patients, in the interests of those patients, their families, those caring for them and the wider public. That is why, in such exceptional circumstances, this retrospective legislation is being proposed. Both a draft Bill and the accompanying Explanatory Notes will be published this afternoon. I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, I thank the noble Earl for repeating the Statement and for giving me earlier briefing today. Detaining people under the Mental Health Act raises the most serious issues of fundamental rights and patient and public safety. Any reported failure will therefore always be a matter of the highest concern. I am sure I speak for the whole House in saying that I have been reassured by the Minister’s comments, in particular on three crucial points: first, that no patient has been wrongly detained or received care that was not clinically appropriate; secondly, that no doctor was unqualified to make decisions; and thirdly, that urgent action is being taken to correct the situation and bring the clarity that is so clearly essential.

I would like to put a number of questions to the noble Earl. Can he say a little more about the events that brought this to light last week? Was it discovered in one SHA, and by what process did the department establish that it extended to three more? Can the noble Earl tell me whether extensive checks have been undertaken in all 10 SHA areas? Is his department confident that no more patients and families are affected than the 4,000 to 5,000 mentioned in the Statement? Has he any plans for direct communications with the patients and families affected? Is it the case that these patients are living not just in the four regions mentioned but in other parts of the country? Will he comment on how many are in high-security hospitals or could potentially pose a risk to the public?

The noble Earl informed the House that, despite the regulations not being followed to the letter in four of the SHAs, the advice from First Treasury Counsel is that the detentions carried out by those panels, even where the relevant doctors were not signed off by the strategic health authority, were none the less lawful. I do not know whether the noble Earl will be able to clarify that or give some more detail of First Treasury Counsel’s advice. The noble Earl confirmed that the Government will be bringing forward emergency legislation to ensure, for the avoidance of any doubt, that the actions of those doctors have legal validity.

The compulsory detention of patients under the Mental Health Act for their own good or for the public good should always be a matter of great public and parliamentary interest and scrutiny. This is doubly so when legislation of an emergency and retrospective nature is contemplated in this area. Emergency legislation should always be used as sparingly as possible, and your Lordships’ House is rightfully nervous of retrospective law. The Official Opposition understand and support the noble Earl’s wish to remove any doubt about the legal status of the patients concerned, but that has to be set against the general undesirability of asking Parliament to legislate hurriedly. Over the next day, will the noble Earl ensure that your Lordships have access to the fullest possible information, including a summary of the legal advice he received? There will also be concerns about the precedent, particularly in the area of people’s rights, and I hope that the noble Earl can reassure me on that point.

The House and the public will, at the end of the day, want to know that this emergency legislation is being used in exceptional circumstances as a last resort, not as a convenient means of correcting administrative failures. In his Statement, the noble Earl mentioned that according to the advice that he had received from his officials none of the alternatives to legislation had proven satisfactory. Will he give a little more detail about what the possible alternatives were? It would be helpful to the House to know that. If he is not able to do that comprehensively tonight, when it comes to Second Reading of the legislation, which I presume we will be debating on Wednesday—I do not know whether that has been agreed yet—it would be helpful to know what the alternatives might have been and why his officials have concluded that they are not sensible ways forward.

Finally, I turn to the investigation. The Opposition support the review under Dr Harris to get to the facts and ensure that lessons are properly learnt. The noble Earl said that he thought the review would be completed by the end of the year. Will the review be made public? While one would not wish to prejudge it, is the noble Earl in a position to say whether it is proceeding on the basis that what has happened is a failure of policy implementation rather than any defect in legislation? This is important because practitioners working in this important field would not want any unnecessary question marks hanging over the mental health legislation in general.

Will the noble Earl clarify what is going to happen post April 2013? This is currently the responsibility of strategic health authorities, which are due to be abolished at the end of March next year. Will the Secretary of State take back this responsibility from April 2013 or will it be delegated to another authority? If it is, to which authority and how it will be ensured that the proper delegations will be carried out in practice? As well as establishing that and the historical facts, will the review consider whether the new arrangements are likely to be well understood post April 2013?

In conclusion, I commend the Minister for the approach that he and his colleagues have taken to this difficult issue. Clearly, the request of this House and the other place is exceptional, but I fully understand that failure to act would potentially cause unnecessary distress and uncertainty to many thousands of vulnerable patients and their families and risk to public safety. While I look forward to a rigorous examination of the emergency legislation, the noble Earl has our support in removing any uncertainty.

My Lords, I am extremely grateful to the noble Lord for his supportive comments, and I shall do my best to answer as many of his questions as I can. He first asked me what train of events led up to this situation. Earlier in the year, a doctor challenged a refusal by the Yorkshire and Humber approvals panel to approve him under Section 12. This challenge highlighted the possibility that the Secretary of State’s approval function, which had been properly delegated to SHAs, may, in some areas, have been unlawfully further delegated to NHS trusts. Yorkshire and Humber and then the northern SHA cluster took their own legal advice, which confirmed that the trust had been acting ultra vires in issuing the approvals. The northern SHA cluster identified that this applied to the arrangement in North East SHA and alerted the Midlands cluster, where it was possible that the same issue might apply in East Midlands and West Midlands. On 22 October, the northern SHA cluster alerted the Department of Health to the issue surrounding the approval of doctors and the possible knock-on effects that that would have. Events then took the course that I outlined when repeating the Statement. I can confirm to the noble Lord that we are satisfied that all 10 strategic health authorities have now gone through the proper process for approving doctors under the Act. The four that may not have been compliant have regularised the situation.

The noble Lord asked whether more than the 4,000 to 5,000 patients that I indicated when reading the Statement might be affected. It is possible that more are affected, but the key point is that the legislation that we are introducing this week will cover all affected patients, whatever the process was that led to their detention.

The noble Lord asked whether there were any plans to communicate with patients. We have worked, and continue to work, with the Royal College of Psychiatrists to ensure that patients and staff will understand clearly what has happened, how it affects them and what the situation now is. Sir David Nicholson, the NHS chief executive, today has written to all SHA leaders setting out the situation and the immediate need for them to communicate across their mental health organisations. The Department of Health is also assisting in that process.

The noble Lord also asked how many patients were detained in high-secure hospitals. I do not have the exact numbers. However, a small number of patients in secure hospitals are detained under sections of the Act covered by approval under Section 12 but these patients are not in secure hospitals by virtue of a criminal section. On whether I could share with the House the legal advice that the department has received, I am sure that he will know that it has been the practice of successive governments not to do that for very good reasons. However, if the noble Lord is in any doubt about the advice that we have received, I am very happy to give him access to my officials in the department who can talk him through this.

Quite rightly, the noble Lord said that your Lordships’ House has in the past been extremely cautious about approving retrospective legislation and I am the first to acknowledge the validity of that comment. In no way do the Government enter into retrospective legislation lightly. As he said, it is very much a last resort. We looked at the only possible alternative, which was to reassess each and every one of the 4,000 to 5,000 patients currently detained in every setting. We would need to have done that within 72 hours, which is what the law allows. In our judgment, it was logistically impossible to do that.

Furthermore, if we had attempted to do that, it would have undoubtedly caused a great deal of anxiety and distress to the patients involved, and their families, while taking away from other patients the attention of the clinical staff who look after them. The very clear advice that we received from not only our legal experts but also the clinicians was that the retrospective legislation route was undoubtedly the best route to go down. It is not now necessary to reassess patients. I believe that that perhaps is the central consideration we should have in our minds.

The noble Lord, Lord Hunt, also asked whether this affair reflected a failure of policy implementation or the underlying legislation. Certainly, from our scrutiny, there is no defect in the legislation. What has happened is that powers have been inappropriately delegated by those four strategic health authorities. The panels whose job it is to approve the clinicians failed to refer back to the strategic health authority for ratification the recommendations that they were making, which is the only thing that we believe was not done under this process.

The noble Lord also asked what would be the arrangement after April 2013. The power under the Mental Health Act to approve clinicians in this context will revert back to the Department of Health. There will be a refreshed set of arrangements which will be co-ordinated and managed by the department. Those arrangements are being put in place over the next few months.

My Lords, will the review look at whether the SHAs have made any approvals under any other legislation, such as the Mental Capacity Act?

My Lords, the review by Dr Harris will take into consideration any lessons that need to be learnt. We have asked him to take into account any other possible lessons that we should take on board, particularly in the run-up to April 2013. However, I am happy to reassure my noble friend that her request will be passed on. If there is a relevance to the Mental Capacity Act, I will ensure that Dr Harris takes it into account.

My Lords, like the noble Lord, Lord Hunt of Kings Heath, I would hope that the Minister could tell us a little more about how these irregularities came to light only last week. The problem, of course, is that there is a well known maxim of the law that the delegate of a power—that is to say the person to whom a power is delegated—cannot delegate it to another. I think that it is expressed in Latin as delegatus non potest delegare.

It is no doubt that maxim which has caused the lawyers to have had some doubt about the lawfulness of the detention in these cases. Indeed, it is perhaps surprising—again, the noble Lord might be able to give us some understanding about this—that these irregularities have not come to light before. Now that they have, I agree with the advice given by First Treasury Counsel that there is here a need for absolute clarity and that the best way to achieve that is by legislation. The whole point of it is that it should have retrospective effect. I end by congratulating the Government on reacting so quickly.

I am extremely grateful to the noble and learned Lord, Lord Lloyd. In front of me, I have a very detailed timeline of the events which have led to the current situation, starting from the early summer of this year when the doctor who was turned down for approval in Yorkshire and Humberside SHA challenged the decision. Subsequently, he dropped his appeal but the legal advice taken on his grounds for appeal highlighted the possibility that the arrangements for the panel convened by the Rotherham, Doncaster and South Humber NHS Foundation Trust to exercise this function were unlawful. From that point, questions were asked not only in that strategic health authority but in neighbouring strategic health authorities and the department was alerted a few days ago.

The noble and learned Lord rightly asked how this could ever have happened and not been picked up. We will rely on the review by Dr Harris to tell us the answer to that question, but I am grateful for his support.

In further clarification to the response that the noble Earl gave to my noble friend about communication with patients, will he tell the House more about how that communication is to take place, whether there is a timescale for it and whether the communication also will extend to patients’ families who will be particularly worried by some of these developments?

My Lords, I would willingly give the noble Baroness further details. Unfortunately, I do not have any beyond those that I gave to her noble friend Lord Hunt. I will gladly pick up the very valid points that she has made and let her know as soon as I can. Perhaps when we reach Second Reading of the Bill, which I believe has been timetabled for Wednesday, I shall have a more detailed answer to give her. If she is not in the Chamber, I shall make sure that she receives it by other means.

I have a particular interest in the Mental Health Act 1983, because I played some role in getting some provisions on to the statute book. I am normally very against any retrospective legislation, but in this particular case I strongly support the view taken by the Government, because it is absolutely essential to avoid a situation in which we impose disruption and distress on a large number of people who are vulnerable and in difficult circumstances in any event. For what I may call “human reasons”, the alternative was rightly ruled out, and I support the Government’s view.

I am most grateful to the noble Lord, Lord Williamson. Indeed, it was the well-being of patients that was central in our mind when we sat down to consider how to resolve this very unfortunate situation at the end of last week. I hope and believe that patients should not suffer any inconvenience or distress at all as a result of the remedial route that we chose.

I welcome a review by Dr Harris, but can the Minister say whether, outwith the sphere of mental health, the department has any concerns that there are other areas of health where the Secretary of State would normally delegate authority to strategic health authorities and where that delegation might be further delegated? Is there any belief in the department that any other areas could be similarly ultra vires?

We know of no such instances, but again we have asked Dr Harris to investigate that issue. I am sincerely hopeful that he will not find any other irregularities, but we cannot of course rule out that possibility.

We are all grateful for the way in which this matter has been handled, and particularly pleased that it will not result in any fundamental change in mental health legislation. I come to this from a point of ignorance, so I hope that the Minister will excuse what seems an innocent question. Does this mean that the future emergency legislation that will come to the House is aimed at deeming that the practitioners who dealt with these cases are now licensed to deal with them, or does it mean that the patients have been deemed to be appropriately assessed?

The question that the noble Lord, Lord Laming, asks is not a naive one at all—it is a very important one. The draft legislation that has been prepared is very narrowly drawn and its effect will be to ratify retrospectively those decisions taken by the panels that assess doctors for approval and treat those decisions by the panel as if they had been lawfully made. So it does not apply directly to patients but to the approval of the clinicians involved.

Could the Minister say something about the role of regulators and professional bodies, and why none of them picked up this issue over time? Will that matter form part of Dr Harris’s review?

Arrangement of Business


As is clear from the Statement repeated by my noble friend Lord Howe, a Bill is required to put right the administrative defect that has been discovered in the approval of doctors under the Mental Health Act. Tomorrow the Government will invite the House of Commons to pass such a Bill. I am grateful to the opposition Chief Whip for agreeing in the usual channels that the Bill should be fast-tracked on its receipt in this House. Therefore, I propose that the Second Reading of the Mental Health (Approval Functions) Bill should be taken in the dinner break on Wednesday this week, displacing the Question for Short Debate of the noble Lord, Lord German, which I shall naturally make an immediate effort to reschedule to his convenience. Given the nature of the Bill, the usual channels have also agreed that it should not be committed and that its remaining stages should be taken formally immediately after Second Reading. My noble friend the Leader of the House will move the necessary Standing Order suspension Motion tomorrow after questions. It is of course open to any noble Lord to object to that Motion, but I hope that that may not be the mood of the House.

West Coast Main Line


My Lords, with the leave of the House, I would like to repeat the Statement made by my right honourable friend the Secretary of State for Transport in another place. The Statement is as follows:

“Mr Speaker, with permission I would like to make a Statement on the progress we are making to put right arrangements for the west coast main line and rail franchising.

First, I will update the House on the Laidlaw inquiry. Secondly, I will explain how we will ensure not only continuity of service on the west coast line after 9 December but an enhanced service.

On 3 October I announced the cancellation of the competition to run the intercity west coast franchise because of the discovery of unacceptable flaws in the procurement process run by the Department for Transport. I made it clear at the time, and do so again today, that this was a very regrettable decision prompted by mistakes that should never have happened. I also launched two independent inquiries, one of which has reported its interim findings to me and which I am today delivering to the House.

I asked the first inquiry, led by Centrica chief executive Sam Laidlaw, to look into what happened and why with the aim of establishing the lessons to be learnt. I also asked the second review, led by Eurostar chairman Richard Brown, to focus on any lessons to be learnt for the future rail franchising programme. I promised that both would conduct their investigations thoroughly, independently and urgently.

Given the public interest in this matter, the Laidlaw inquiry was asked to deliver an interim report to me by 26 October, and a final report by the end of November. I am grateful to the inquiry for meeting this first deadline, and working tirelessly to meet the second. I stress that today’s findings are precisely that—an interim report. There is more work to do. These findings are clearly a first stage. As Mr Laidlaw explains, they set out what went wrong, and from that basis he will now carry out further investigations into why this happened. From the start, my aim in dealing with this situation has been to be open and come forward with information for the House at the earliest opportunity. It is in that spirit that I make this Statement today. In the interests of complete transparency, I am publishing this interim report, with its provisional findings, and placing copies of it in the Libraries of both Houses.

To be blunt, these initial findings make uncomfortable reading, but they provide a necessary and welcome further step in sorting this out. The Government will need to see the full and finished report before they can comment in detail on any conclusions. This is crucial because of the independent nature of the Laidlaw inquiry and the need for the Government not to prejudge its eventual findings. But it is clear that the inquiry has identified a number of issues which confirm that my decision to cancel the franchise competition was necessary. These include a lack of transparency in the bidding process; the fact that published guidance was not complied with when bids were being processed; inconsistencies in the treatment of bidders; and confirmation of technical flaws in the model used to calculate the amount of risk capital that bidders were asked to provide to guard against the risk of default.

The Laidlaw inquiry also mentions factors,

‘that appear to have caused or contributed to the issues raised’.

We will look at these with interest and care, although once again we will need to see the final report before we can comment further.

Secondly, I would like to update the House on the progress we are making to ensure continuity of service on the west coast main line once the current franchise expires on 9 December. As I have said previously, we will ensure that passengers continue to be served by the same trains, with the same front-line staff, the same services, using the same tickets and, I am pleased to say, enhanced future timetables.

The department is making good in its discussions with Virgin on how it will operate the line for a short period of up to 14 months while a competition is run for an interim agreement. We are discussing its proposals for improved services over this period and an enhanced compensation scheme for delayed passengers. In dealing with this my department has been frank and open about its mistakes and is absolutely determined to find out exactly what happened. In the mean time, we will keep delivering for passengers and continue with the unprecedented levels of investment in trains, stations and railway lines. Combined with our decision to limit train fare rises to an average of inflation plus 1%, instead of RPI plus 3%, for the next three years, this demonstrates this Government’s total commitment to Britain’s railways”.

I commend this Statement to the House.

My Lords, from time to time the noble Earl has a moment of difficulty at the Dispatch Box, but never one of such ignominy as to have to address himself to this Statement, which has already been delivered in the other place. It is noticeable that when Ministers are in control of their departments and the departments are carrying out their policies efficiently, you often hear them refer to “my department”. I repeat part of the Statement, although the Minister has already read it out, which states,

“because of the discovery of unacceptable flaws in the procurement process run by the Department for Transport”.

How remote that body appears, given that the Secretary of State is commenting on it. Like all other Ministers, the Secretary of State wants to be as remote as he possibly can from the shambles represented by today’s Statement and the answers we have had to Parliamentary Questions in the interim period. Nothing is more indicative of the failure of the Government than for the Minister again to emphasise today the independent nature of the reports being carried out. One of them will be carried out by a member of the departmental board. I have no criticism at all of Mr Laidlaw, who I know to be an extremely independent minded, efficient and proper individual. However, to ask him to carry out an independent review not just of the board but of Ministers as well when he is a member of the board, serving those Ministers, beggars description in terms of what this Government are prepared to defend in the wake of this shambles.

I have one or two precise questions to ask the noble Earl but I want him to be absolutely clear that the way in which Ministers have set about tackling this great difficulty with which they are confronted is not acceptable, and that they will have a difficult time on every occasion when they discuss these matters in one House or the other. We now know that some indication of difficulties with regard to this process was discovered as early as May 2011, with one executive telling the Financial Times with regard to the spreadsheet analysis of the bid:

“The spreadsheet contained certain assumptions that looked odd to our economic modellers, so we went back to the department and pointed it out”.

What did the department do? It ploughed on in its reckless way. Ministers did not intervene. Is it conceivable that when these difficulties arose Ministers were not informed? What grip did they have on the department when such a significant process was undertaken? I emphasise that this is the first of a series of decisions which have to be taken on these franchises. There are many more to come. Therefore, this matter ought to have been worked on in a very real sense as the model which dictated how all the others would subsequently be analysed. However, we have Ministers purporting to be so distant from the process that they knew nothing about these difficulties until months after the relevant events occurred. In fact, action was not taken by the department but when one party decided to take the issue to the High Court the department was forced to initiate a review. I take it that at that point Ministers at last took an interest in what was going on and forced the department to analyse criticisms of the process. At that late stage it was recognised that the process was flawed and had to be brought to a halt with very considerable costs.

So far, the department has owned up to the fact that the mistake may cost £40 million. However, everyone connected with the industry knows that that is only the start of the costs. The Secretary of State may stick to his figure but we know that this is just the cost of compensating the four bidders for the west coast main line franchise. It does not include the cost of rerunning the competition twice, preparing Directly Operated Railways to step in, or compensating bidders for the other stalled franchises because many months of delay are now built into the whole process.

It is clear that the department has been advised in this process by external companies which, of course, have provided their services at a cost. What steps is the Minister taking to review whether the department received value for money for well over £1 million spent on a flawed process, the results of which had to be jettisoned?

As regards the legal advice which the department has received, what is the department’s liability if any of the participants in these cancelled or stalled franchises seek costs from the Government as a result of the delay? What advice did the Minister receive on EU competition law, procurement law and the impact on the fairness of future competitions before deciding to extend Virgin’s contract? The noble Earl has emphasised what an excellent decision it was to extend Virgin’s contract. However, there were very few alternatives. Virgin is going to run the railway for the next 14 months although it was told that it was not as good at running it as the preferred bidder, according to the evidence which was provided and on which Ministers took a decision.

This Statement is a cover not for open government at all: it is a cover for a shambles.

—although it was, not surprisingly, a little bit aggressive. However, I would have done much the same if our positions had been reversed. I agree that it is not enjoyable to have to report such serious problems to the House. However, when answering questions on this issue I have aligned myself closely with my department and I have expressed confidence in all the officials who have briefed me. I still have confidence in all the department’s officials who brief me.

The noble Lord asked about the issue of pressing on with the franchising process when there was a possibility of something being wrong. We know that serious errors were made, and this interim report spells these out. The reasons why this happened and why the department pressed on regardless will be addressed in the full reports. However, in August, officials had assured the then Ministers that the department’s process had been robust.

The noble Lord, Lord Davies, also asked me about the roles of Ministers. Before 12 September, my right honourable friend was advised by officials that potential concerns about two aspects of the franchise process had been discovered, but at that stage it was not clear that these would have made any difference to the outcome of the competition. He was advised that the right course was to continue to prepare the defence to the legal challenge. He asked that further investigations be conducted. In the later stages, from 24 September, this work was assisted by PricewaterhouseCoopers. On Tuesday 2 October, he was advised that the flaws were so significant that the competition would have to be cancelled, and he announced this on that very night.

The noble Lord also talked about delay to the whole franchising process. We will have to wait until we receive the Brown report to see what it means for franchising as a whole—and of course we will get that at the end of the year. He asked about liability as regards the various bidders in the franchising process. He would not expect me to comment on any claims for compensation.

The noble Lord’s initial point was that Brown and Laidlaw are compromised by being non-executive members of the departmental board. Sam Laidlaw has outstanding credentials to lead this review. He is a very senior business leader with a deep understanding of how big organisations work. He is the lead non-executive director across government on procurement and is familiar with the issues surrounding public procurement. As lead non-executive board member for the DfT, he has a thorough knowledge of how the department works, while remaining independent of it. The Department for Transport board was not responsible for approving the award of the intercity west coast franchise competition, and the department’s governance procedures for major contract awards did not require the board to be consulted. I refer noble Lords to paragraph 2.2 of the interim report, which adds a little more.

My Lords, I am not going to join the chorus of criticism. That is water under the bridge, the situation is going to cost a lot of money, and it may take a long time to resolve.

I have some experience of models, how complex they are, and how very few people actually understand what is inside them. You virtually have to have a degree in econometrics to understand them, and to some extent it is in the interests of the consultants that it should be so, because it keeps them in work. The whole issue of subordinated loans, which is connected with long franchises, means that you are asking the banks to put up a lot of money into the very distant future. We know that the banks are risk-averse and a new method must be found of covering this liability, or else it will bring all long franchises down.

I would like an assurance from the Minister that all the stalled franchises will continue good housekeeping, small investment schemes, support for community rail trusts, and all those things in the time before a new franchise procedure is launched. I warn him that it is going to take a long time, possibly two or three years, to get a viable scheme going.

Is it not better, rather than having very long franchises, to build into the franchise process a reward for delivery of excellent service, whereby each year you get something off the next bid? If you have five good years and then rebid, you may get a 5% advantage over any other bidders. That would underwrite continuity, which is appreciated by the staff and the customers.

I have one final question: will the noble Earl give attention to the large-scale orders that are imminent from rolling-stock companies? I am talking about big money. These will not go ahead unless the department gives some reassurance to the rolling-stock companies that the franchises they let are going to use the rolling stock. That is extremely important, particularly for lots of jobs in Derby and Preston.

My noble friend Lord Bradshaw made some important points but, of course, for answers to many of them we will have to wait to see what the Brown report says. However, I agree that we need to be careful to keep what is good about the current franchising system. At this stage, in advance of the report, I would not want to comment on how long it will take to get the franchising system running again. Rolling stock is of course a separate issue from the franchising problems, but he makes an important point and I will draw it to the attention of my right honourable friend the Minister of State.

My Lords, I have stated to the noble Earl previously that every week when I come down here I travel on the Virgin Pendolino and travel home the same way. I hope that the officials in his department will take into consideration that the dedicated staff who work for the company feel insecure about what is happening. They had some relief when they were told that they had extra time—14 months—but that is not all that long when you are dependent on a livelihood. To illustrate to the noble Earl how dedicated these men and women are, perhaps he remembers the flooding in Cumbria that caused subsidence. At very short notice, these good people were able to get every passenger off at Preston and bus them beyond Carlisle to make sure that they continued their journey north. That is the kind of dedicated people the staff are. We often talk in this House about people raising families and working, particularly women. Many of those who work for Virgin are young women raising families. They arrange childcare so that they can get up early in the morning to carry out their work and ensure that their families are looked after. I ask that all concerned bear in mind that there is a dedicated workforce who are entitled to consideration.

The noble Lord makes an important point about the human element of this problem. I take this opportunity to make it quite clear that the front-line staff will not be adversely affected. It will be the same staff running the trains and the same rolling stock. In the short term, passengers will not notice any difference. As I said in the Statement, we may even be able to enhance the service. However, it is important to remember that there is a human element to this problem.

My Lords, will the Minister accept some sympathy from me for having to deliver that preprepared Statement? It referred to the Government having been “frank and open” about this shambles, as my noble friend on the Front Bench rightly called it. Does the Minister accept that the Government have behaved in no such way and that, up to hours before the revelations emerged as a result of the proposals for judicial review, the previous Secretary of State and her successor were assuring us all that the contract was robust and that no problems were foreseen?

I wish to press the noble Earl on the question of cost, to which my noble friend on the Front Bench referred. None of us for a moment believes that the costs will be confined to the £40 million of the existing franchise. Has the department, for example, received any communication from FirstGroup, which was previously awarded this franchise and whose share price has declined by 20% since the emergence of the fact that the system was flawed? How much does the Minister estimate this whole thing is going to cost the British taxpayer? I repeat the noble Lord’s plea that in future the front-line staff who have to operate the west coast main line be kept fully informed about what is happening.

My Lords, as for the noble Lord’s last point, the staff on the west coast main line are of course the responsibility of Virgin. I assure the House that I have repeated many political Statements, and I have done so this time again without the opportunity of editing it because I am just repeating a Statement made by my right honourable friend in another place. As to the noble Lord’s substantive point about when my right honourable friend knew that there was a problem, as soon as he was told that the problem could have affected the outcome he cancelled the award of the contract immediately.

My Lords, I endorse what the Minister has just said. I have no detailed knowledge of these matters, and of course I share the dismay about the very serious difficulties that have emerged. However, I ask the noble Lord, Lord Davies, for example, speaking from the opposition Front Bench as he has just done, to take a little care. What would the reaction of the then Government have been if all this had happened, say, three years ago, when they were still in office? I dare say we would have had a whole lot of dissembling, lack of transparency and flannel and not the forthright and straightforward replies which Ministers have given on this occasion and for which I believe they are to be commended. Of course it is a deeply unfortunate situation but I think that Ministers have acted as best as they can and that they are to be commended for their transparency and forthrightness on this occasion.

My Lords, I suspect that the noble Lord, Lord Davies of Oldham, is thinking: there but for the grace of God go I. In defence of the noble Lord, he had to come to this House and explain the problems at HMRC, which, frankly, I think he did.

My Lords, like the noble Lord, Lord Bradshaw, who spoke earlier, I do not wish to join in any hue and cry, but does the noble Earl not agree that what has happened calls into question the wisdom of the Government’s approach to downsizing the Civil Service as a response to the economic problems that the country faces? Does he not agree that this situation might suggest that they have been going too far and too fast in this? Is it not the case that what has happened here strikes a body blow at the credibility of government processes? When next we get a statement from any department that says that it has employed the most robust processes it is possible to conceive of, who is going to believe that?

My Lords, as Sam Laidlaw has stated, these are initial views about potential contributory factors that he will continue to investigate in advance of his final report. Laidlaw has chosen not to criticise any particular individual or groups of people. Tackling the deficit and getting the public finances in order require the Government to tighten their belt like any other organisation. In doing its bit, my department made careful and well considered reductions in its headcount that were designed to save the public money while continuing to deliver on all its priorities, including rail franchises.

My Lords, I raise my point this evening in the spirit of making sure that we learn the lessons of this very serious exercise. Today, the Minister has very clearly laid out the position. He described the situation from the report as very serious. He talked about things such as technical flaws in the bids and the lack of transparency. However, these revelations contrast markedly with what we were told merely a few months ago. My question to the Minister is simply this: why were Ministers not alert to these very serious flaws in the bid, and can Sam Laidlaw, in his investigation, look at this specific aspect and report on the person who chairs the board at the Department for Transport?

My Lords, the noble Lord talked about lessons learnt. As I said, the next stage of the Laidlaw report will look at why the errors occurred and at the lessons to be learnt. The interim report is not very long and should be available in the Library. I urge noble Lords to read all of it. I read it just this afternoon, so it is not a long report. The noble Lord asked me a point-blank question. Perhaps the answer is that officials did not realise that the flaw existed or how serious it was.

My Lords, I have no inhibitions at all about making strong criticism of what happened over this franchise. I think it has been a complete and utter disgrace and a fiasco. Indeed, when we consider the humiliating spectacle of the Government having to go cap in hand to the very franchisee who was rejected to ask it to continue running the railway, it is clear that we have got into a very serious situation indeed. Quite frankly, I believe that this Statement smacks of complacency about the whole matter. Let us just have a look at what the interim inquiry says about it. Sam Laidlaw refers to a lack of transparency in the bidding process and the fact that published guidance was not complied with when bids were being processed. Why not? Finally, he talks of inconsistencies in the treatment of bidders, and that is the most serious of all because it smacks of corruption somewhere in the department. I am sorry to have to say it but it has to be said in the light of that particular sentence. I ask the noble Earl whether the department is now shown to be not fit for purpose. Is there going to be a root-and-branch reorganisation of the department to see that this sort of thing never happens again in relation to railways or, indeed, any other franchises in which the department might be involved?

My Lords, the noble Lord, Lord Stoddart of Swindon, talked about strong criticism and of course it is justified. Ministers are not denying that the problem is serious. The Virgin bid was not rejected; it fell victim to a better bid from FirstGroup. The noble Lord talked about inconsistency in the treatment of bids. There is no evidence of bad faith on the part of officials. As we understand it, it was purely an error. Finally, he talked about reorganisation of the department. We will have to wait to see what Sam Laidlaw says about the reasons and the lessons learnt. I will not promise that we will reorganise the department but I assure the House that we will make sure that this problem does not arise again.

The noble Earl said that there was nothing wrong with the process, but it was shown that everything was wrong with the process. In fact, Virgin went to the High Court because it believed that the process was wrong. Quite frankly, I believe that the noble Earl, whom I respect and like very much, is being rather complacent.

Police and Crime Commissioner Elections (Welsh Forms) Order 2012

Motion to Approve

Moved By

That the draft Police and Crime Commissioner Elections (Welsh Forms) Order 2012 laid before the House on 15 October be approved.

Relevant document: 8th Report from the Joint Committee on Statutory Instruments.

My Lords, the House will know that on 15 November the people of England and Wales will go to the polls to elect their first police and crime commissioners.

The Police Reform and Social Responsibility Act 2011 sets out the basic rules for the elections, and the detailed rules, forms and notices can be found, in English, in the Police and Crime Commissioner (Elections) Order 2012. The Government are, of course, committed to ensuring that the Welsh language is given full parity with English in Wales, so have brought this further order to establish a bilingual ballot paper for use in Wales on 15 November. Our commitment to ensuring that the Welsh language is given equal status with English in these elections is shown by the fact that we have established Welsh names for the four offices of PCCs in Wales formally. We are also ensuring that our candidate website in Wales is also in Welsh, with a website address in Welsh too.

Should they wish, police and crime commissioners on election will be able to take their oath in Welsh. I can assure noble Lords that all other forms and notices for the election can be issued bilingually without an order. These suggested forms are available on the Electoral Commission website. However, ballot papers require an order and I am sure that all noble Lords will join me in supporting the need for these forms to be available bilingually. I beg to move.

My Lords, what a complete shambles this has become. We are less than 48 hours away from the deadline of five o’clock on Wednesday when the first ballot papers in both languages should be sent out to postal voters. Until we conclude our business this evening, there is no authority to use ballot papers in both languages. This is further evidence of the lack of interest that this Government show to Wales, her people and the Welsh language. The Electoral Commission points out in its helpful briefing for this debate:

“Welsh language legislation requires that in Wales the Welsh language is treated no less favourably than the English language”.

We are barely two weeks away from the first election for the police and crime commissioners and until this order is agreed there will be no bilingual ballot papers available. Some of us are sceptical about the whole idea of police and crime commissioners, coming at a time of the difficult economic situation in our country. Many of us question spending £75 million on this election. On top of that, I see in an Answer given to my right honourable friend David Hanson, the Member for Delyn in the other place, a further £350,000 has been spent on printing ballot papers in English only in case this order is not made in time. With the passing of this order allowing for the use of bilingual ballot papers, the English-only ballot papers, which have already been printed, will be thrown away. That means that £350,000 will have been spent on creating waste paper.

I share the Electoral Commission’s view that rules relating to any elections should be clear at least six months before the election. The commission has already told the Government of its concerns and about the unacceptable lateness of the Welsh ballot forms order that we are now considering. Indeed, in a letter of 28 September from Jenny Watson, the chair of the Electoral Commission to the Minister, Damian Green, she said:

“No draft legislation vital to the conduct of an upcoming election should be made only 16 days prior to polling day after candidate nominations have opened. In this case, the legislation is likely to be made only just before postal votes are dispatched, with the result that there will be significantly increased costs for the public purse”.

We have to ask: how have we come to this? This shambolic Government seem to stagger from one crisis of their own making to another. I accept that it is the responsibility of the Home Office, and I have great sympathy for the Minister having to come here to answer, but where were the Wales Office Ministers in all this? Did they know about this mess? If so, what did they do about it? After all, there are three of them now. The last time we had three Ministers in the Wales Office was before the National Assembly for Wales existed. In pre-devolution days, the Wales Office ran public services such as health and education. It was responsible for everything from agriculture to transport. The present Wales Office runs nothing at all. When the National Assembly was created it took over many of the responsibilities of the old Welsh Office and as a result, the number of Welsh Office Ministers was cut from three to two, and rightly so.

In the four years that I had the privilege of serving as a Welsh Office Minister, we had just two Ministers and we certainly had a much greater workload than the three there now have. That included responsibility for taking through legislation, which is something that the present trinity of Ministers do not have to do because the National Assembly for Wales now has legislative powers. The Wales Office has some 60 staff—23 in Cardiff and 37 in London. Seventeen of its staff are on loan from the Welsh Government. Did no one spot the fact that the Government had not made this order? Were none of the three Ministers aware of this debacle?

There is something called collective responsibility. When I was a Minister we took that seriously. We looked across the range of government departments to see what they were doing. All interdepartmental correspondence between Ministers was copied to all Ministers. Staff were alerted to bring to Ministers’ attention not simply matters relating to their own departments, but matters across a wide range of issues, usually specified by a diligent Minister. I suggest that the Wales Office Ministers be provided with a copy of the excellent book written by my friend Gerald Kaufman, How to be a Minister, because it seems that they do not know how to be Ministers. To be fair, I certainly exclude the noble Baroness, Lady Randerson, who has only just become a Wales Office Minister, but the Secretary of State for Wales was the former Under-Secretary of State for Wales. The other Minister, Mr Crabb, was also a Whip. Those sleeping beauties of Gwydyr House did not seem to be aware of what was happening at all.

I know that the noble Lord, Lord German, is seeking a debate stressing how the Welsh and UK Governments can work more closely in the interests of the people of Wales. Well, if this abysmal track record is anything to go by, Welsh Ministers will not be working in partnership with their colleagues in Cardiff for the benefit of the people of Wales. We have all heard the term, “sleeping partner”, but I am sure that we did not expect it to apply to an entire government department. Under this Government the Wales Office has no profile. The Ministers are invisible; they have no mandate; and it is clear from the mess caused by the delay of this order that they have no great interest in Wales. The lateness in laying the order is typical of this Government—a Government who only a while ago forced through a Bill cutting the number of Welsh MPs by 25 per cent. The voice of Wales will be heard. We will not be silenced, and whatever happens to the parliamentary boundaries, I have no doubt that the Conservative and Liberal Democrat MPs will certainly be given their marching orders at the next election.

My Lords, I am very glad of the opportunity to speak briefly on this order. I thank the Minister for his courtesy in pointing out last week that this debate was taking place, but having said that, I may not be quite so positive towards the Government. I certainly agree with the remarks of the noble Lord, Lord Touhig, in what has been an incredible episode in these events.

The deputy head of the Electoral Commission, Rhydian Thomas, has pointed out in no uncertain terms:

“Welsh language legislation requires that in Wales the Welsh language is treated no less favourably than the English language”.

That applies in this case. It is not something new. The first Welsh Language Act was in 1967, there was another in 1993 and there was a revision from the National Assembly two years ago. That is known to the Home Office and has been known all through the procedures relating to the police and crime commissioner elections. Why on earth are we now, two days before the deadline for these papers to be posted out for postal vote purposes, having to spend an extra £350,000 to cover the mistake made by somebody in the Home Office?

In his document, Rhydian Thomas states:

“Police Area Returning Officers have put in place contingency arrangements; they are printing both bilingual and English language ballot papers so that postal ballot packs can be issued promptly. If this Order comes into effect in time, bilingual ballot papers can be issued in postal ballot packs. If not English language ballot papers will be used. The UK Government has agreed to provide additional funding to cover the additional cost of printing duplicate postal ballot packs”.

That is £350,000 at a time when we are told that every penny is vital. With all the cutbacks going on under the Welfare Reform Act and other legislation we see this waste of money because no one thought about it in time. That is of great concern. Rhydian Thomas further states:

“We are strongly of the view that the rules relating to any elections should be clear at least six months in advance. We have already made clear to the UK Government the unacceptable lateness of the Welsh Forms Order and our concerns about the inconsistency in their approach to prescribing forms and notices in English and Welsh for these elections”.

He later states:

“This Order should incorporate any corrections to address errors in the forms and notices that have been identified in the statutory English language versions”.

So we have not only got a mess through not having a Welsh language version, but the English language version that was drawn up was also incorrect according to the deputy head of the electoral structure in Wales. That cannot be acceptable. I fear that it indicates an attitude within the Home Office towards what is happening in Wales which, at best, is remote and uncaring and, at worst, is disdainful and contemptuous towards the needs in Wales.

I noted what the noble Lord, Lord Touhig, said about Wales Office Ministers, who clearly have a responsibility in this, but the primary responsibility for these forms lies with the Home Office—it should have got it right—and if the Home Office is incapable of getting it right on something as basic as this when the legislation has gone through the House, then, as in the case of Scotland and Northern Ireland, the Home Office should come under the National Assembly where, whatever else happens there, it would not have made a mistake of this kind.

Whereas I welcome the fact that these forms are going through at the 11th hour, I hope some lessons are learnt and taken to heart.

My Lords, I join with the condemnation of the noble Lord, Lord Touhig—apart from his final remark, which I do not accept at all—and the noble Lord, Lord Wigley. This is a shambolic way in which to undertake any kind of election. We have it on good authority that the ballot papers will be going out within the next 48 hours but it is only tonight that we will say, “Yes, let us have the bilingual papers”. How the staffs in the various local authorities will manage to do this over the next day or two is beyond my comprehension. Not only is this part of the election process at fault but the whole issue has been conducted in haste and has not been thoroughly thought through.

As to the postal ballot papers that are being issued, in the previous Parliament I campaigned to ensure that members of the Armed Forces then in Iraq and in Afghanistan now received ballot papers to allow them to take part in any election. There is not a chance that they will be able to do that now. There is something seriously wrong with our democracy when we deny people who are fighting for our freedoms the right to vote for the party of their choice.

To divert a little—I make no apology for this—how will candidates access the electors in their constituencies? Greater Manchester has 2 million people—I do not know whether that is the number of voters—so how are the candidates standing there going to get in touch with those 2 million people? Liverpool has 1 million people and North Wales has about 500,000 people: who will be able to contact these people with details of the candidates and their policies; how will they get through? There is no free post but a polling card was sent out about two weeks ago. That could have been used to provide at least a page from each of the candidates standing in the various constituencies—as they do in London mayoral elections—but nothing came.

No one will be able to say that this is a fair election. They may say, “It will be on the internet” but 8 or 9 million people have no access to the internet. How will those people know who is standing, which party they belong to and what their proposals are for policing in their particular area? It could have been so different.

Only the wealthy or well-funded candidates in North Wales—which is only a small electorate—could possibly afford £50,000 to mail people in their areas. No ordinary person—certainly no independent person—will be able to afford this. So some candidates will have access because they have money; others will be unable to afford access. Would there not be a case for a legal challenge to the results when they are announced? Someone will have to think that through thoroughly.

While I am delighted that at long last we are to have Welsh ballot papers and that a prototype is in our briefing, so much else is wrong. This is a total shambles which does not reflect on the people of the areas it is supposed to represent. As to the point about this being approved at the last hour, we cannot call for the election to be declared invalid now but certainly we need to go through it thoroughly in the future.

I support what has been said. I am glad that there has been at least an acknowledgement of Welsh—which, of course, is one of the great languages of the western world—but we will try to ensure that discounting us without a thought will not happen again.

My Lords, I endorse with enthusiasm the chagrin that has been announced by each of the three previous noble Lords who have spoken in this matter. I have no doubt that, at best, it is an embarrassment for the Government; at worst, it could well be a disaster. In saying that, I exculpate completely the Minister, the noble Lord, Lord Taylor, in this matter, and the new Minister, whom I congratulate on her position.

The noble Lord, Lord Taylor, has already shown himself a person of great sensitivity and sincerity in relation to Wales and has shown a considerable chivalry as well. He wears the gown, as it were, of defending counsel in this case. I know something of what that role sometimes involves.

There is no doubt that disaster lies very close to our elbow tonight. If this legislation is not carried by five o’clock on Wednesday, which is less than 48 hours away, it will be impossible for these Welsh forms to be part of the election. There is no dispute about that. If that can be done—and I have no intention of dividing the House; nor, I am sure, has any other noble Lord—it will have been a very close-run thing.

However, there are lessons that we have to consider in this connection. This is a tale of two statutes: one is the Welsh Language Act 1967. The combination of Sections 2 and 3 of that Act mean that anything that is done in the Welsh language has equal validity as if it had been done in the English language. The blade was pushed a little further by legislation passed in 1993 and thereafter, but the basic principle was established in that Act. I am very proud indeed to have been a Member of the other place at the time.

The effect of that is that there is a statutory obligation on Her Majesty’s Government to use the Welsh language whenever they possibly can so as to establish the principle of equal validity. On this occasion they failed to do so. I think they failed because the procedures were so convoluted. They meant that someone in the Home Office had to translate the title into a very simple Welsh phrase, “heddlu a throseddu”. Only one letter was wrong. “Throseddau” was the translation, but that means “offences” or “crimes”. “Throseddu” means “crime”. In other words, the title should be “Commissioner for Police and Crime”, not “Commissioner for Police and Crimes”. The difference is not infinite, but it is significant. Why ever was that particular responsibility left with the Home Office?

I have referred to the 1967 Act, but the other one is rather older. It is the Act of Union 1535 or 1536. That Act contains a massive preamble. If you want to know how to use 10 words whenever one can be used, read this preamble. It is a classic example of long-nosed Tudor verbosity. In the Act, Henry VIII enounces the principle that the people of the dominion of Wales use a language that is different from and in no way consonant to the mother tongue of the people of this realm. That began it all; it was an attack upon the Welsh language. By that Act, the Welsh language was effectively excommunicated from the realm of law. It meant that no one could hold a position unless he could speak the English language, that no document would have validity unless it was written in the English language, as well as many other instances in addition.

I am sure that the Minister will accept that we are approaching this with very considerable sincerity. It is not a matter of pettifogging Welsh lawyers logic-chopping, splitting hairs or in some way trying to be a nuisance to the established Government of the day. This is a massive insult to the Welsh language. The Act of Union tried to kill the Welsh language; the Act of 1967 tried to save it. It is as simple as that. So, looking to the future and in no way seeking to embarrass the Minister for reasons that I hope I have explained very fully, I will ask this question: is it necessary for procedures such as these to be in some way outside the ambit of the Welsh Assembly? As the Minister knows, 20 fields of legislative authority were transferred to Wales under Part 4 of the Act, all of them under the referendum of 1 March last year. The 20th is the Welsh language, save and except the status of the Welsh language in the courts. That does not apply in this case. This is a matter as exclusively Welsh as one would ever find. What could be more utterly Welsh than the Welsh language itself? Is there any reason, therefore, why the authority to deal with the matter should have rested not with the Home Office—I do not speak with any animosity towards that body because I had the great privilege of being a junior Minister there some 45 years ago, if I remember rightly—but within the purview of the Welsh Assembly?

As a fallback position, I would ask the Government to consider a matter that I have raised more than once in the House over the past few years. When the legislation to establish a Welsh Parliament was going through in the late 1990s, or rather the Welsh Assembly eventually leading to a parliament, the point was made that there were many areas where there would not be a direct transfer of authority, but that there should be an understanding. The word used—I do not think it is used in the Act itself, but it certainly was in the debates at the time—was “concordat”. There should be an understanding between the department in Whitehall and the department in Cardiff as to exactly how they could work together. If there were a concordat, I would prefer to see a transfer, but if there were no more than a concordat, this shambles would not have occurred. The quotation I rely upon comes from Tennyson, not from “Le Morte d’Arthur” in the Idylls of the King, but from “The Charge of the Light Brigade”: “Someone had blundered”. Let us see to it that it never happens again.

My Lords, this order needs to be effective by the end of this month, which is in a couple of days’ time, so that postal ballot papers can be issued in time to allow voters to receive and return their postal ballot papers for the police and crime commissioner elections in Wales before the poll closes on 15 November. If this order is not passed, the ballot papers used in Wales will only be available to voters in English, despite the fact that, as my noble friend Lord Touhig and the noble Lord, Lord Wigley, have said, there is a legislative requirement that in Wales, the Welsh language is treated no less favourably than the English language. The debate on this order seems to be being held remarkably close to the deadline for the issuing of postal ballot papers to begin. When he comes to reply, perhaps the Minister will tell us why this is the case. Was the need for the order overlooked until a late stage or is there some other reason why we are debating it just two days before it needs to come into effect?

The Electoral Commission is clearly unimpressed about the apparent delay, since it has made clear to the UK Government its view on the unacceptable lateness of the Welsh forms order we are now considering and its concerns about the inconsistency in the Government’s approach to prescribing forms and notices in English and Welsh for these elections. Statutory forms and notices, including all those used by voters in the process of voting, were prescribed in English in the Police and Crime Commissioner Elections Order 2012 which came into effect towards the end of July this year.

The Welsh forms order, in front of us now, prescribes only the form of the ballot paper to be used in Wales. The remaining forms and notices have been provided by the Home Office on a non-statutory basis to those involved in administering the elections. The Electoral Commission has stated that if English language material is prescribed and provided to those running elections, then it is an important principle of consistency that the same approach should be adopted for all Welsh language material, and that this is done at the same time—not, as in this case, more than three months afterwards and only a few weeks before polling day. Do the Government agree with the view of the Electoral Commission on this issue and is it the Government’s intention, as the Electoral Commission has urged, that a further Welsh forms order should be brought forward at the earliest opportunity in order that it will be in effect for future PCC elections, including possible by-elections?

Returning to the police and crime commissioner elections next month, if the order we are discussing is not made, the ballot papers used in Wales will only be available to voters in English, and postal ballot papers are due to go out in a couple of days. As a result of the late appearance of, and a decision on, this order, the police area returning officers have had to put contingency arrangements in place. Accordingly, they have had to print both bilingual and English language ballot papers in order to ensure that postal ballot packs can be issued promptly. It appears that the UK Government have had to agree to provide additional funding to cover the costs of printing duplicate postal ballot packs. Perhaps the Minister could indicate either what those costs actually are, or if that is not known, what it is estimated they will be? Is the £350,000 figure that has already been referred to the correct figure or not? The Government say so often that money is not available because of the financial situation but I take it that this will not be the case when it comes to finding the money to pay for the cost of government ineptitude, as in this instance.

The Electoral Commission has said that if this order does not come into effect on 31 October, it should not do so until after the election on 15 November to avoid there being two different sets of rules in effect at different points in the timetable for the same election. Do the Government share that view?

Of course, the Government attach great significance to having police and crime commissioners. They made their decision to proceed in 2010 and have since spent their time minimising the achievements of the police authorities, under which crime had fallen steadily and consistently during the period of the previous Government—and under which, this Government say, crime has continued to fall. Obviously under this Government the price of success is abolition.

We are now close to the PCC elections that will be held in November. These are national elections taking place across England and Wales. We do not normally hold national elections in November, since the weather and daylight hours do not encourage people to vote. When challenged about this in the House of Commons earlier this month, the Minister for Policing and Criminal Justice memorably replied that,

“every four years America holds what is possibly the most important election in the world in November and the American electorate seem to engage in it, so it is not insuperable for people to go and vote when it is a bit cold and wet”—[Official Report, Commons, 19/10/12; col. 677.]

So that’s all right then. The Government have imported the idea of police and crime commissioners from the United States and now apparently they have also imported the election date from the United States.

The Government have also introduced an arrangement for this election under which, unlike other national elections, there will be no written information about the candidates sent to the electorate and delivered free of charge from the candidate’s point of view unless an individual rings up a phone line and asks for such written information to be sent to them—this in an election where the Government claim that police and crime commissioners are needed to provide more visibility, transparency and accountability. The Government said that they wanted to encourage independent candidates to stand. However, unless independent candidates are well off and can afford to pay for a mail shot or delivery, they are invariably more dependent than other candidates on the free delivery to help get their name and message across. The Government say it is about cost, but if they were really concerned about cost, they would not be introducing these elections in the first place—certainly not at this time.

Today we are debating an order that appears to reflect a degree of incompetence on the Government’s part, in particular from a department that seems to have a happy knack of drawing adverse comments from your Lordships’ statutory instruments committee. The Electoral Commission seems to have cottoned on to this as well, since it will be publishing a report early next year on the impact of the content and timing of the passage of the legislation that enabled the PCC elections to take place—including, it says, the late laying of the Welsh forms order. The commission also says that its report will look at the role of the Home Office, and comments that this is a department not usually tasked with the running of elections. To task it with the running of an election was of course a ministerial decision.

Parliament has decided that elections should be held for police and crime commissioners in Wales. Those elections are imminent. Despite the typically incompetent way the elections have been and are being managed and handled at ministerial level, we shall not seek to stop this order coming into effect as intended.

Well, I thank the noble Lord for that support. This has been a stimulating and useful debate. It has given me the opportunity to inform the House and to some degree clear the air on some of the issues that have been raised, and I know they have been raised with some considerable passion.

As we know—and with this being a shared objective of all noble Lords who have spoken—the order will ensure that voters in Wales will have the opportunity to mark their vote bilingually. The House’s support of this measure means that it can be done in Welsh and English and both languages will have full parity.

Noble Lords can be assured that throughout this process the Government have consulted with the Electoral Commission and returning officers. As noble Lords will know, these are independent officers acting within local authorities, running the election, in developing the design of the ballot papers and the mechanics of delivering a Welsh and English bilingual ballot paper for the electors in Wales.

I should make it clear to the noble Lord, Lord Touhig, who I think had expected to find a Welsh Minister here today, that no criticism should be made of the Wales Office; the Home Office is the responsible organisation. As the noble Lord, Lord Rosser, made quite clear, the Home Office is responsible for conducting this election. The focus of the issue should be directed to the Home Office. It is indeed the Home Office’s intention to ensure that we have a long-term way of dealing with the Welsh language element of elections. As noble Lords will know, currently this requires a separate order from the general secondary legislation that is required to bring about publication of other forms.

The Law Commission is investigating the whole question of elections. Although it will take some time for the Law Commission to report, it is the Government’s intention to respond to that. It may well be that in future it will not be necessary to keep coming back for each election. I remind noble Lords that for the previous general election, the Government had to bring in a special order in April for the May 2010 election for exactly this issue: to produce a bilingual ballot paper. The process is complex, to the extent that we need to ensure that we have the form of the election material right in the English language before we seek to translate it into a Welsh or bilingual format. This has been a more convoluted process than noble Lords might at first think.

Is there any good reason why translation from English into Welsh should not be the exclusive purview of the Welsh Assembly? That would avoid all these complications, would it not?

That will have to be for future legislators to consider. It is certainly not possible under current law. As I have explained, the responsibility lies with the Home Office to deliver these elections in England and Wales. The noble Lord, Lord Elystan-Morgan, showed a great deal of understanding about the complexity of statutes under which Welsh language elements of elections have to be conducted. He mentioned the two statutes and the complexity of the issue. I thank him for his understanding of that matter.

A number of noble Lords, including the noble Lords, Lord Wigley and Lord Rosser, mentioned the cost of £350,000. That is within the £75 million budget, and it will not cost any additional money nor extend the budget for these elections. It is within the contingencies that noble Lords have mentioned.

We take the Welsh language very seriously. I am an English-speaking Englishman who has to receive any part of the Welsh language culture second-hand. However, I appreciate it enormously. It enhances all our lives that we have a second living language spoken in these islands. It is greatly to our advantage and is one of the reasons why we support, in any way that we can, opportunities for Welsh speakers to express themselves in their Welsh language. Indeed, as I said, they can take the oath in Welsh if they wish on achieving office.

We all appreciate the noble Lord’s positive words towards the Welsh language and our heritage that goes with it. On the lessons to be learnt from these mistakes—I am sure he would accept that there have been mistakes somewhere, otherwise we would not be in this position—will there be an opportunity for the Home Office to review how they deal not just with Welsh language matters but with matters relating to Wales where there is an overlap with the National Assembly, such as the interface between crime and social services and the way in which they work with the devolved Administration, to make sure that we do not get into this mess again in any context?

I implied in my response so far that the key lies in getting mechanisms whereby some of these things that have required separate consideration by Parliament are automatic and part and parcel of the process. The translation of election material into the Welsh language is something that the Law Commission should be looking at. How that is delivered is a matter for the Government and Parliament to consider when the Law Commission eventually reports on elections. However, one lesson that comes out of this is that it gives us an opportunity to look at how we do these things in the future. I am grateful for that aspect of the debate, which has overridden, I hope, some of the other aspects of the debate that have not perhaps been quite so positive in the assessment of the Government’s intentions.

The Electoral Commission is right that we should take whatever steps we can to make sure that this order comes into effect