House of Lords
Tuesday, 21 January 2014.
Prayers—read by the Lord Bishop of Ripon and Leeds.
Health: Flour Fortification
To ask Her Majesty’s Government what is their assessment of the public health impact of the current programme of fortifying flour; and whether they have plans to extend the programme.
My Lords, the Government considered the health impact of the current programme of fortifying flour as part of the Red Tape Challenge review of the bread and flour regulations and concluded that it does deliver public health benefits. We are currently considering the case of mandatory fortification of flour with folic acid and will reach a decision when we have considered new data on the folate status of the population due early this year.
I thank the Minister for his Answer but ask him to speed up that review. Is he aware of the major new peer-reviewed research from the Wolfson Institute, which surveyed half a million women over a 10-year period and found out that folic supplementation is going down? It concluded that the current policy is failing and creating health inequalities. We know that now. Is this not a real worry?
My Lords, I am not aware of that study but I shall of course make myself familiar with it. I do not doubt that it will feature in the consideration that we give to this issue, which I can assure the noble Lord we will do as speedily as we can. It is important to say that adding to the list of fortificants would be a major step and we need to be absolutely sure that it is the right one.
My Lords, is it not a fact that in the United States bread is already fortified not only with folic acid, which of course prevents spina bifida in newly born children, but also vitamin D? At present there is a great deal of concern here that none of us is getting enough vitamin D due to the lack of sunlight in winter. Would it not be a good thing for us to have that benefit? Can the Minister also assure me that if this applies to wheat it will cover wholemeal as well as ordinary loaves, as we recommend people to eat those?
On my noble friend’s last question, we are slightly jumping ahead of ourselves because we need to decide on the principle before we decide on which types of wheat might be fortified. However, I recognise my noble friend’s main point. Indeed, the Scientific Advisory Committee on Nutrition, in recommending mandatory fortification of flour with folic acid, sought to highlight the benefits of fortification as well as the risks. It was a balanced recommendation. We value it and we will look at the advice very closely indeed.
My Lords, what has the Minister’s department made of its evaluation of folic acid fortification in the many countries that have implemented it, including the United States, as has already been mentioned, Canada and Australia? What has been the balance of risk and benefit in those countries?
I am aware that we have looked at the experience of other countries, but, as I am sure the noble Lord will accept, we need to take a decision on this that is right for all of our population rather than another country’s population. That is why we want to make the decision evaluating risks and benefits based on the most up-to-date data of the folate status of our own population.
My Lords, the case for fortifying flour with folic acid is now incontrovertible. It is both safe and effective in preventing spina bifida. I should like to follow up the question of the noble Baroness, Lady Gardner, about vitamin D fortification, as there is a rising incidence of rickets in children, particularly Asian children, and we really should take that seriously.
The noble Lord is absolutely right. I agree with him that the incidence of rickets is a cause for concern. At the same time, he characterises the case for mandatory fortification as incontrovertible. There are risks that SACN pointed out. Its advice to government stated that fortification of flour with folic acid might have adverse effects on neurological function in people aged 65 years and over with vitamin B12 deficiency. Treatment with folic acid can alleviate or mask the anaemia and therefore delay the diagnosis of vitamin B12 deficiency, which can lead to irreversible effects.
The noble Earl referred to two things. His immediate answer just now suggested that folic acid levels might interfere with B12 anaemia in older people. That would require a dosage of about 15 milligrams per day; the dosage we are talking about for fortification would hardly reach 1 milligram per day. The risk, therefore, is pretty minimal. Secondly, he suggested in his opening Answer that the folate level of the population might help to devise the policy. How would that help to devise the policy for women in early pregnancy who need the folic acid to reduce the incidence of neural tube defects?
I am sure the noble Lord would agree that we have to take a decision based on the most up-to-date data. The data that we had prior to this were 10 years old and it is important to take a decision in the context of the nutritional state of health of the population. On his first question, all I can say is that the risk to which I referred was considered as part of SACN’s overall assessment and we will draw on that in reaching our decisions on the fortification of flour and give it the appropriate weight that it deserves.
My Lords, on the issue of up-to-date information, as the noble Lord, Lord Rooker, has said, we now have the Wolfson study, which actually leads that organisation to recommend that all countries should introduce folic acid fortification. The Government already have the recommendation of the Scientific Advisory Committee on Nutrition for mandatory fortification. Yes, it says it should be accompanied by actions to restrict voluntary fortification of food with folic acid for the reasons to which noble Lords have already referred. Why on earth are the Government delaying action on this?
My Lords, I can only repeat what I said before, which was that taking this step would be a major step by any standards. We must base it on a proper assessment of the risks and benefits. We have some excellent advice from SACN and we need to evaluate that advice fully before taking a decision.
My Lords, does the Minister agree that the public education campaign has failed and that given that most pregnancies are unplanned and that the risk period for low folate levels is in the first 28 days, before a woman is aware that she is pregnant, there is actually some urgency to act?
My Lords, I recognise the issues raised by the noble Baroness. We will of course take those into account.
My Lords, it is more than 20 years since the MRC study on this issue first had to be abandoned because it was considered inappropriate not to give folic acid supplements to the women who were involved. When the noble Earl reads the latest study, I suggest that he will find it “incontrovertible”, to use the word of the noble Lord, Lord Turnberg. The noble Earl said in December that the Government were looking at this issue urgently. Will they now look to act urgently?
My Lords, I give the noble Baroness an assurance that we are treating this with suitable urgency. I cannot give her a date as to when a decision will be announced but it will be as soon as possible.
Public Order: Busking and Live Music
To ask Her Majesty’s Government what assessment they have made of the consistency of proposed legislation on public order with existing policy on busking and live music.
My Lords, the new anti-social behaviour powers are designed to protect the activities of the law-abiding majority. The Government are certainly not seeking to restrict reasonable behaviour and activity, and we do not believe that these powers do. Live music and street entertainment play an important role in community life and can generate a positive atmosphere that is enjoyed by all. As a result, these reforms are completely consistent with our policies on busking and live music.
My Lords, I welcome that statement from my noble friend but there appears to be a considerable difference between the approach of the DCMS and that of the Home Office to busking. The DCMS has been enthusiastic about deregulating live music. The Home Office, by contrast, is enthusiastic about its new public spaces protection order, which creates new dispersal powers and which could be used disproportionately and pre-emptively by local authorities, if the existing behaviour of some London borough councils such as Camden is typical, by contrast to that of the mayor and the GLA. Can my noble friend confirm that the statutory guidance to be issued to local authorities will ensure that these powers are exercised with proper consideration of the balance between freedom of expression and respect for private and family life, and will also point out the considerable existing body of nuisance and noise-abatement powers which local authorities already have to hand? Should we not be encouraging rather than discouraging busking, which is such an important part of our urban culture?
I can certainly give my noble friend the assurance that the guidance will achieve what he and the Government wish to see from it. I do not think that there is a difference across government on this issue. We believe that the tests and safeguards set out in the new anti-social behaviour powers will ensure that they will be used only where reasonable. Where behaviour is having a positive effect on a community, and I see busking as having that effect, it would not meet the tests for the new powers. Instead, the powers are directed against the anti-social minority who give street performers a bad name; I might illustrate them as being aggressive beggars and drunken louts.
My Lords, does not the Minister think that Part V of the London Local Authorities Act 2000, which specifically targets busking as being effectively a potential criminal activity and which has allowed Camden Council to impose its draconian policy, should be repealed?
I do not intend to comment on the Camden case because it is subject to judicial review, as the noble Earl will understand. However, perhaps I can convey to the House the sentiments of the Mayor of London, who clearly believes that busking is an important part of street life in London. He is keen to encourage street entertainment and live music, not least because of the positive aspect it brings to the life of the city. As I have made clear, the Government believe that live music and street entertainment can play an important part in community life. The Government support the mayor’s position.
My Lords, I welcome the Minister’s responses and I think that the intention of the legislation is clear, but the noble Lord, Lord Clement-Jones, is on to something about the guidance. We all know that overzealous implementation of legislation can cause problems. Will the Minister respond to the noble Lord’s specific point about making things clear in guidance? When looking at the public spaces protection order, will he also consider guidance for community protection notices and dispersal powers because, with this whole new architecture of arrangements for dealing with anti-social behaviour in the Bill, guidance will be important to ensure that we do not have overzealous implementation?
I hope I gave my noble friend a positive response to his request. The Government do not start from the position that busking requires regulation and control. Busking can brighten our lives; local action is necessary only to curb any excesses. I think that noble Lords will understand that that can occur. It is not about top-down government; it is about local authorities using the powers available to them. The guidance will certainly make clear the Government’s position on busking and street entertainment.
My Lords, local authorities and private landowners take different approaches to busking, which can mean that licences are required in some places but not in others. Will my noble friend work closely with local government to clarify the current laws that apply to busking in different areas? I declare an interest as an occasional busker.
We have a diversity of talent in this House, and occasionally we have to draw on it. My noble friend makes a very important point: the Government have a role in helping local government to use and interpret its powers properly. The noble Baroness referred in her question to the same issue: making it clear what is considered to be sensible use of powers is a responsibility that the Government can usefully carry out.
My Lords, the Minister may have heard of an historic music venue in Manchester called Night & Day which, as a result of one complaint, is in danger of being closed down, which would mean that that opportunity for music would be lost. Is not the Minister right when he says that in these cases a proportionate approach should be considered?
Yes. My noble friend who asked the original Question introduced the Live Music Act. I pay tribute to him for securing that Private Member’s Bill through this House. It is designed to ease the licensing burden on popular venues. However, we have to allow local democracy to work and people should be entitled, if they find activity to be disruptive, to make that point and have it established whether or not it is disruptive. I cannot comment at all on the detail of the Night & Day case. I have never been to the place myself; I have obviously missed out in my sheltered life. None the less, I will listen with interest to the outcome.
Armed Forces: Widows’ Pensions
To ask Her Majesty’s Government what is the estimated annual cost of allowing all armed forces widows, who choose to re-marry or co-habit, to retain and not forfeit their existing service widow’s pension in line with the provisions in the Armed Forces Pension Scheme 2015.
My Lords, first, I am sure that the whole House will wish to join me in paying tribute to Captain Richard Holloway of the Royal Engineers, who was killed while on operations in Afghanistan on 23 December, last month. My thoughts are also with the wounded, and I pay tribute to the courage and fortitude with which they face their rehabilitation.
The cost of not suspending pensions on remarriage or cohabitation to spouses who survive members of the 1975 Armed Forces Pension Scheme, whose deaths were not attributable to service, is estimated to be in the region of £250,000 per annum; the cost is estimated to be £70,000 per annum in relation to the War Pensions Scheme. Survivors of those enrolled in the current 2005 pension scheme and the new 2015 scheme, when implemented, will retain pensions for life regardless of personal circumstance.
My Lords, I associate myself with the Minister’s remarks about Captain Holloway. I also declare an interest as a vice-president of the Forces Pension Society and a member of the Armed Forces Pension Scheme 1975.
Is the Minister in favour of justice for widows—those widows who are trapped or locked into a scheme which is unfair and discriminatory compared with later schemes, which allow the survivor pension awards to be retained for life? Is this not totally counter to the Armed Forces covenant, which is so strongly supported by the Prime Minister and all in the Government? Will Her Majesty’s Government move quickly to remove the discrimination in the Armed Forces Pension Scheme 1975 and the War Pensions Scheme, bearing in mind that there would be no significant cost to the taxpayer, given the Minister’s figures and making allowance for the policing, both intrusive and insensitive, and the complex administration of these schemes?
My Lords, there are 10 categories of widow or widower under the Ministry of Defence pension and compensation schemes. I have discussed this very complex issue with the noble and gallant Lord. We both agreed that I should place a letter of explanation in the Library setting this all out, which I have done this afternoon.
Defence Ministers have enormous respect for the Forces Pension Society and for the War Widows Association of Great Britain and will continue to work very closely with both of them. Successive Governments have reviewed pensions for life, but changes cannot be taken in isolation from other public sector schemes, including those for the NHS, teachers, police and the fire service, which have similar rules in place for their older schemes.
My Lords, we associate ourselves with the condolences expressed by the Minister to the family and friends of Captain Holloway. His death on active service in Afghanistan is another reminder of the enormity of the sacrifices that continue to be made on our behalf by members of our Armed Forces.
We have had questions before on service pension issues, including the impact of redundancy just prior to the relevant pension qualifying date. If the money is unavailable to ensure that what some would regard as the basic principles of fairness are not overlooked in some cases over service pensions, why is the money readily available to bail out the Secretary of State over misjudgments on, for example, the Joint Strike Fighter and the IT system for Armed Forces recruitment?
My Lords, I remind the noble Lord that it is a fundamental principle, which has been applied by successive Governments, including that of the noble Lord, that public service occupational pension terms should not be improved retrospectively for those who are no longer active members of these pension schemes or for their dependants.
My Lords, from these Benches, may I associate us with the condolences expressed by the Minister?
I agree with the Minister that this is a most complicated area of legislation. When you research it, you realise how mixed up, complicated and confused it is, particularly for those people trying to work their way through it. What is the cost in terms of staffing an administration to police the relationship status of service widows? Given this, and given the fact that the Armed Forces Compensation Scheme does not depend on widows remaining single, is it not time to look again at extending the service widows pension to cover all service widows, whatever their subsequent relationships?
My Lords, I agree with my noble friend that this really is a very complicated issue, which is why I am placing a letter in the Library, a copy of which I will send to some noble and gallant Lords. The Service Personnel and Veterans Agency checks the relationship status of war widows. This is conducted every two years, looking at a random sample of about 5% of recipients. In 2010, this exercise cost some £50,000. It is a complicated matter for the Government to consider whether to look again at extending the terms of various schemes to cover all bereaved spouses for life regardless of subsequent relationships. Nevertheless, Ministers will continue to work closely with the Forces Pension Society and the War Widows Association of Great Britain.
My Lords, I declare an interest as a trustee of the parliamentary pension fund. In light of the fact that Her Majesty’s Government have totally turned that upside down through the use of IPSA et cetera, why on earth cannot Her Majesty’s Government listen to the noble and gallant Lord opposite about what is, yes, a complicated scheme—as was the parliamentary scheme—and take some action?
I am afraid that I am not sighted on the parliamentary pension fund. However, we are sympathetic to the concerns of the Forces Pension Society and the War Widows Association of Great Britain. The NHS, teachers, police and fire services’ scheme administrators were consulted last year and highlighted their concerns. Should the MoD accede to the retrospective change, the Government Actuary’s Department confirmed that, if all public sector schemes were to change their rules to accommodate this, the cost would be in the region of £3 billion over a 40-year period—the NHS cost alone would amount to about £1 billion.
My Lords, I believe that the armed services are different and it is shameful that we cannot look at this. When Governments look at something like this and decide to do something, as the noble Lord says, they can do it. It is appalling that we have people policing these women—and they are generally women—who are now wanting to remarry to live with someone and who will probably have to have a worse standard of living. Certainly, if I died, I would want my wife to have a happy second life. It is appalling and we should do something about it. Can that not be done?
My Lords, this is done to protect the taxpayer.
Syria: Geneva II Talks
To ask Her Majesty’s Government what is their assessment of the future of the Assad regime in Syria, in the light of the Geneva II conference talks.
My Lords, the purpose of Geneva II is to implement the Geneva I communiqué. This calls for the establishment by mutual consent of a transitional governing body with full executive powers. Any mutually agreed settlement will mean that Assad can play no role in Syria’s future. The Government will continue to do everything we can to maximise Geneva II’s chances of success.
I thank my noble friend for that reply. She has answered part of my Question, but I will persevere. Given the findings of Sir Desmond de Silva and his team of 11,000 executions in a single location, which were systematic, ordered and directed from above, according to the team, can the Minister tell the House whether the Government foresee an outcome at Montreux which would be satisfactory in terms of a transitional Government? Will the Minister tell the House whether the Government are holding talks with the Arab League and the Gulf co-operation council in light of these findings to establish a regional tribunal to try the Assad regime for crimes against humanity?
My Lords, my noble friend once again refers to an appalling atrocity taking place in Syria. This matter has now gone on for many years. We have heard horrendous stories; only last night we heard details of photographs of detainees who had been tortured in custody. However, we come back to the fact that this matter can be resolved only through a political solution. Geneva II is really the only show in town. That is why we are working as hard as we can to make sure that it is a success.
My Lords, I read the report yesterday and I shall not repeat the figures because the noble Baroness, Lady Falkner, has already provided them to the House. There is credible evidence in Sir Desmond’s submission of widespread war crimes. He is one of the most eminent lawyers in the field of international criminal law. He says that the evidence would stand up in any court of law.
The Government often repeat their policy of no immunity. In that light, is it now not unlikely that Assad can travel abroad to a peace conference or, indeed, any other conference without being arrested for war crimes—or, at least, on the allegation of war crimes—as would indeed apply to any rebel forces against whom similar allegations could be made?
My Lords, the delegation of regime representatives at Geneva II is being led by Foreign Minister Muallem, and I cannot see how a successful Geneva II process would mean that Assad or his brutal regime had a future role in Syria. I agree that there must be accountability for the appalling human rights violations that have been committed in Syria. That is why we have been supporting the opposition through, among other things, human rights training to document these abuses, so that one day those who committed them will be brought to account.
My Lords, in our Syrian debate on 9 January I quoted Mr Ban Ki-Moon as saying that it would be “useful” for Iran to be present at the Geneva conference. I expressed my own view, which I still maintain, that it is essential for Iran to be there. Does the Minister accept that there can be no hope of the conference reaching a diplomatic or political solution, or even a partial ceasefire, in the absence of the Syrian regime’s principal supporter, while Saudi Arabia and Qatar, which have poured money and foreign fighters into this so-called Sunni-Shia war, while paying lip service to the implementation of the Geneva communiqué of June 2012, make no secret of their determination that there shall be no representation of the present Alawite-controlled regime in any transitional Government? Will the Government persuade our allies, our friends and Mr Ban Ki-Moon to think again at this 11th hour, if there is to be any hope of this conference achieving any practical result?
My Lords, I have said on numerous occasions at this Dispatch Box that the Government have no objections in principle to Iran being involved in Geneva II. However, Geneva II is about the implementation of the Geneva I communiqué, and we do not see how it would be possible for Iran to take part in the Geneva II discussions when it has not endorsed the Geneva I communiqué. Noble Lords will have seen on the news the offer to Iran to take part in Geneva II. It was made by the UN Secretary-General, on the understanding that Iran would endorse the Geneva I communiqué. The endorsement was not forthcoming, and it was therefore appropriate for the invitation to be rescinded.
My Lords, I know that the Minister will have supported the calls made by Syrian women for a place at the table at the Geneva II conference. Does she agree that without women’s support and participation, no viable peace agreement can be made—or, indeed, implemented? Does she further agree that Syrian women’s rights must be strengthened and not compromised in any way during the discussions taking place tomorrow?
I agree with everything that the noble Baroness said. That is why the Foreign Secretary has led the call for women to be involved in these negotiations. The noble Baroness will be pleased to know that UN Women will have a delegation at the Geneva II discussions, and it will have access both to the delegations and to Brahimi. There will also be senior women in both the attending delegations.
Mesothelioma (Amendment) Bill [HL]
A Bill to amend the Mesothelioma Act 2014 .
The Bill was introduced by Lord Alton of Liverpool, read a first time and ordered to be printed.
Defence Reform Bill
Order of Consideration Motion
That it be an instruction to the Grand Committee to which the Defence Reform Bill has been committed that they consider the Bill in the following order: Clauses 1 to 4, Schedule 1, Clauses 5 to 7, Schedule 2, Clauses 8 to 10, Schedule 3, Clauses 11 to 13, Schedule 4, Clauses 14 to 38, Schedule 5, Clauses 39 to 45, Schedule 6, Clause 46, Schedule 7, Clauses 47 to 50.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Clause 26: Meaning of “controlled expenditure”
1: Clause 26, page 13, line 45, leave out from “that” to “on” in line 46 and insert “the offence would not have been committed”
My Lords, the Government signalled during Report that they would bring forward a number of technical, clarificatory amendments for Third Reading. Amendments 1 and 17 are such technical drafting points. These amendments relate to Amendment 38 debated on Report, which adjusts the code of practice defence for third parties. As I indicated on Report, there were two points of detail we wished to put right. The defence should also apply to a situation where expenditure may have been incurred on behalf of the third party. It should also apply for a charge in relation to a targeted expenditure offence. These amendments do just that.
This group of amendments also includes amendments relating to the use of Welsh translation and the Welsh language. I am not sure whether the noble and learned Lord, Lord Morris of Aberavon, is present, but I will leave it to him and the noble Lord, Lord Wigley, to speak to those amendments. I should just put on record that we are very grateful to the noble and learned Lord and to the noble Lords, Lord Wigley and Lord Elystan-Morgan, for their constructive engagement on this. I think that we have arrived at a satisfactory outcome. I beg to move.
My Lords, I apologise that I arrived in the Chamber slightly late due to the crush of noble Lords seeking to leave it. I thank the Minister for the movement that he has made on the interpretation of the amendment that was put down by the noble and learned Lord, Lord Morris of Aberavon. Clearly, the Minister’s intention—and our intention with our amendments put forward earlier—was to ensure that not only the literal translation costs but also the costs of implementing that translation were allowable; otherwise, it would not be meaningful. The Minister has now accepted that principle, for which we are very grateful. It will be welcome in Wales.
My Lords, I should explain for the benefit of your Lordships’ House that it is the Government’s intention to accept Amendment 25 —when we come to it—in the name of the noble and learned Lord, Lord Morris of Aberavon, which meets the points that the noble Lord, Lord Wigley, was talking about.
Amendment 1 agreed.
Clause 27: Arrangements between third parties notified to the Electoral Commission
Amendments 2 to 7
2: Clause 27, page 15, line 12, leave out “section 94A(5)” and insert “section ”
3: Clause 27, page 15, line 17, leave out “section 94A” and insert “section 94B(3) to (7)”
4: Clause 27, page 15, line 20, leave out “section 94A” and insert “sections 94A and 94B”
5: Clause 27, page 15, line 21, leave out “section 94A” and insert “sections 94A and 94B”
6: Clause 27, page 15, line 23, leave out from beginning to end of line 18 on page 16 and insert—
““94A Arrangements between third parties notified to the Commission
(1) A recognised third party may, at any time before the end of a regulated period, send a notice to the Commission—
(a) stating that it is party to an arrangement of the kind mentioned in section 94(6),(b) undertaking to be a lead campaigner in relation to the arrangement, and(c) identifying one or more other third parties that are parties to the arrangement and have undertaken to be minor campaigners in relation to it.(2) A recognised third party that has sent a notice under subsection (1) may, at any time before the end of the regulated period, send one or more supplementary notices to the Commission identifying additional third parties that are parties to the arrangement and have undertaken to be minor campaigners in relation to it.
(3) As from the date of receipt by the Commission of—
(a) a notice under subsection (1), the recognised third party that sent the notice becomes “a lead campaigner” in relation to the arrangement;(b) a notice under subsection (1) or (2), a third party identified in the notice becomes “a minor campaigner” in relation to the arrangement.(4) A notice under subsection (1) or (2) may not—
(a) identify as a minor campaigner a third party that is a lead campaigner in relation to the same arrangement, or(b) be sent by a recognised Gibraltar third party.(5) The Commission must, as soon as reasonably practicable after receiving—
(a) a notice under subsection (1), enter in the register maintained under section 89 (register of notifications) the fact that the recognised third party that sent the notice is a lead campaigner in relation to the arrangement;(b) a notice under subsection (1) or (2), enter in that register the name of each third party identified in the notice and the fact that it is a minor campaigner in relation to the arrangement.(6) For provision about the effect of sending a notice under this section, see section 94B.
94B Effect where arrangements are notified under section 94A
(1) Subsection (2) applies where controlled expenditure is incurred during a regulated period in a part of the United Kingdom—
(a) by or on behalf of a minor campaigner in relation to an arrangement, and(b) in pursuance of the arrangement.(2) The expenditure is treated for the purposes of sections 96 to 99A (returns as to controlled expenditure) as having also been incurred, during the period and in the part of the United Kingdom concerned, by or on behalf of any lead campaigner in relation to the arrangement who sent a notice under section 94A(1) or (2) identifying the minor campaigner.
(3) In determining for the purposes of section 94(3)(a) whether a limit is exceeded by a third party during a regulated period, controlled expenditure incurred by or on behalf of the third party is to be disregarded if—
(a) conditions A and B are met in relation to the expenditure, and(b) condition C is met.(4) Condition A is that the expenditure—
(a) is incurred in pursuance of an arrangement that has been notified to the Commission under section 94A(1), and(b) is, by virtue of section 94(6), treated for the purposes of section 94 and Schedule 10 as incurred by or on behalf of the third party.(5) Condition B is that the third party is, at the time the expenditure is incurred, a minor campaigner in relation to the arrangement.
(6) Condition C is that—
(a) the total of the controlled expenditure incurred during the regulated period in any part of the United Kingdom by or on behalf of the third party, disregarding any expenditure in relation to which conditions A and B are met, does not exceed the limit for that part mentioned in section 94(5), and(b) in the case of a regulated period in relation to which any limit is imposed by paragraph 3, 9 10 or 11 of Schedule 10 (periods involving parliamentary general elections), the total of the controlled expenditure incurred during the regulated period in any particular constituency by or on behalf of the third party, disregarding any expenditure in relation to which conditions A and B are met, does not exceed the limit mentioned in section 94(5ZA).(7) References in subsection (6) to controlled expenditure incurred by or on behalf of the third party include controlled expenditure that is, by virtue of section 94(6), treated for the purposes of section 94 and Schedule 10 as so incurred.””
7: Clause 27, page 16, line 18, at end insert—
“( ) In section 99 (declaration by responsible person as to return under section 96), after subsection (2) insert—
“(2A) Subsection (2)(b)(ii) does not apply to expenses that are treated as incurred by or on behalf of the recognised third party by virtue of section 94B(2) (arrangements between third parties notified to the Commission).””
Amendments 2 to 7 agreed.
Clause 28: Changes to existing limits
8: Clause 28, page 16, leave out lines 24 to 32 and insert—
““(a) either—(i) during a regulated period, any controlled expenditure is incurred in a part of the United Kingdom by or on behalf of a third party in excess of the limit for that part of the United Kingdom mentioned in subsection (5), or (ii) during a regulated period in relation to which any limit is imposed by paragraph 3, 9, 10 or 11 of Schedule 10 (periods involving parliamentary general elections), any controlled expenditure is incurred in a particular parliamentary constituency by or on behalf of a third party in excess of the limit mentioned in subsection (5ZA),”.”
Amendment 8 agreed.
9: Clause 28, page 16, line 38, leave out “0.05% of the total” to end of line 40 and insert “£5,000”
My Lords, this amendment seeks simply to tidy up an anomaly created by the government amendments here and on Report. My noble and learned friend informed us on Report last week that the threshold for registration would be £20,000 in England, £10,000 in each of Scotland, Wales and Northern Ireland, or £9,750 if the spending was to take place in one constituency. In other words, the lowest of the spending limits in the Bill—the £9,750 constituency limit—is exactly equal to the threshold for registration if the activity is focused in that constituency.
The Government’s approach is the same as that I took in my initial amendments on thresholds in Committee. However, I was then persuaded by the Electoral Commission, with the very explicit advice that,
“this approach would cause significant workability problems, since in practice campaigners will either remain below the registration threshold or will be in breach of a spending limit”.
It went on:
“We therefore do not support this amendment”.
The very valid point it was making was that, if you need to have a point of registration, it must be lower than the spending limit with which the activity is concerned, so there are two quite separate processes. First, an organisation says, “I am spending X, so I need to register”. Then it goes on to say, “I have now spent Y, so I cannot spend any more”. The commission has said very clearly on a number of occasions that X and Y cannot be at the same level, but that is the effect of the present situation arising from the recent government amendments.
My amendment therefore sets X, which is the threshold for registration if you are spending in just one or two constituencies, at £5,000 and leaves Y—the Government’s proposed constituency limit—at £9,750. This provides the process of spending, registration, more spending, then reaching the limit—which is exactly what the Electoral Commission has indicated is desirable and essential. I therefore hope that the Minister will recognise that, even today, the Electoral Commission is saying that the Government’s amendments in this area are just not quite right. Importantly, they are defective.
Indeed, citing the exchange we had, the Commission says:
“Ministers suggested that where an unregistered campaigner reaches the limit on spending in a constituency, it must register with the Commission. We do not think the Bill in fact has the effect of requiring registration, although it makes it an offence for an unregistered campaigner to spend in excess of the £9,750 constituency limit”.
We simply cannot afford to ignore this strong advice from the independent commission, which was set up by Parliament—and is responsible to it—to monitor and police the law. I admit I do not know quite why it disagrees with the Minister because as he and I read the Bill the campaigner would have to register if their spending in a constituency reached £9,750. However, it is really serious if anything is not clear, and this is unclear. It is therefore the responsibility of your Lordships’ House to sort it.
As I said on Report, even if the Bill does what my noble friend intends, it would still leave a position where a limit in the Bill could be reached—or very nearly so—without any expenses return having to be submitted. I cannot think of any other area of electoral law where this is the case. It is necessary for the constituency threshold to be lower than the constituency spending limit. None of that affects the very welcome and desirable changes to the effective national thresholds made by my noble friends on the Front Bench. These changes were desired by all sides and will ensure that smaller, national organisations are not brought within the purview of the legislation. However, it is crucial to get the operation of the constituency limits right. Their introduction is at the heart of what the Bill is for. If we get that wrong, people will ask why on earth we brought it in in the first place. I am sure the Minister will not introduce the red herring of RPA limits which are not relevant because if they were sufficient to deal with this problem much of this section of the Bill would not be necessary at all.
Without the changes I am suggesting, there is not only the workability question raised by the Electoral Commission but an in-principle problem. Somebody could spend £19,499.98 in two English constituencies—£9,749.99 in each—without even registering. I am not wedded to the figure of £5,000, but it is quite a considerable sum for any organisation to which we are currently referring to spend in a particular constituency. If my noble friend wishes to look at it again, it could be £6,000 or £7,000. The key issue is that it must be less than the limit figure. I remind noble Lords on all sides of the House—especially ex-MPs—that there are stringent, carefully monitored constraints on the amount that a candidate can spend and paperwork is required for well below £9,750 from every candidate in every constituency. Leaving things as they are would create a real loophole whereby a campaigner could exert a significant effect on a constituency result without any public knowledge of the spending or the source of the money. Where is the transparency there? This could undermine the whole purpose of the Bill.
On that basis, I hope the Minister can either accept this amendment, perhaps knowing he will need to tidy it up tomorrow in the other place, or undertake to bring forward tomorrow anyway a government amendment in lieu to sort out lines 38 to 40 on page 16. I am sure that the Electoral Commission would support any such change. This is no big policy change: it is just recognition of a chance to get right something fundamental to the operation of the regime which the Bill puts in place. I beg to move.
My Lords, I recognise the strength of feeling with which my noble friend Lord Tyler moved his amendment; indeed, it is one to which he has spoken in the past, and one which he, I and—at some stage—my noble friend Lord Wallace of Saltaire have discussed. We debated this issue last week when the Government tabled, and the House accepted, amendments which raised the third-party registration thresholds to £20,000 for England and £10,000 for Scotland, Wales and Northern Ireland.
An amendment providing for a new “third” registration threshold of £9,750 was also tabled and accepted. If that was not made clear, I apologise. The point has been picked up by the Electoral Commission. Perhaps I may give some clarity. This third threshold has been introduced to provide alignment with the constituency limits. It ensures that a third party, whether or not it is already registered with the Electoral Commission, will have committed an offence if it spends more than £9,750 in a constituency. In other words, if a third party is already registered, it will be subject to the constituency limit, exceeding which will be an offence. If it is not registered and exceeds the constituency registration threshold, it will also have committed an offence.
I hope noble Lords will recognise that this third registration threshold has not been introduced with the same purpose in mind as that which applies to the other registration thresholds. It has not been introduced to bring third parties into the regulatory regime. Instead, its principal purpose is to ensure that the offence of exceeding the constituency limit operates as intended. For this reason, the Government do not believe that there is a need for a registration threshold lower than the constituency limit.
I hear what my noble friend says about the need for clarity, and I hope that these words have brought greater clarity. I can also tell your Lordships that the Electoral Commission will make very clear in its guidance the operation of the various registration thresholds so that campaigners are left in no doubt about their responsibilities. I hope that the fears which my noble friend expressed on Report, that it would not be possible to keep account of what a third party was spending in a constituency, are resolved by this.
Moreover, the Government have spent a significant amount of time listening to the concerns of campaigners. Perhaps I should address my noble friend’s suggestion of a £5,000 limit. He said that £9,750 is a significant amount. We took seriously the representations made by campaigners, organisations, the commission chaired by the noble and right reverend Lord, Lord Harries of Pentregarth, and other Members of your Lordships’ House. One of the largest criticisms the Bill received, which was made abundantly clear to us, related to the registration thresholds. They were originally set at £5,000 and £2,000 in the Bill but the Government tabled an amendment last week to raise these to £20,000 and £10,000. This major concession was made with the intention of reassuring campaigners that the Bill would not seek to promote the principle of transparency by imposing onerous and unnecessary burdens on third parties. It was a direct response to the debates in and outside this House and I thank again all those who contributed to them. The increased thresholds mean that small campaigners need not worry that they will be unduly burdened by the Bill’s reporting requirements. The thresholds have been set at a level such that those campaigners who spend only small amounts of money will effectively be excluded from the regime.
I totally accept that this is a judgment call. I hear what my noble friend says about spending up to £9,750 but I also think it was my noble friend himself who made the point in our first Committee sitting that greater transparency goes hand in hand with a greater administrative burden and regulation. We have sought to try to strike the right balance. With regard to constituency spending, we believed that the lower threshold of £5,000 could risk capturing exactly those small local campaigners who have been so clear regarding their concerns about the impact that the Bill would have on them. It was not our intention to do so, and we certainly do not want to unpick some of the important work—
The noble Lord, Lord Tyler, made clear in his contribution that the Electoral Commission was concerned about the lack of clarity. The noble and learned Lord is not answering that point. Is the commission simply to be ignored?
Perhaps I may add to the point made by the noble Lord, Lord Campbell-Savours. The amendment of my noble friend Lord Tyler very much simplifies the administration. It sets a clear limit—rather clearer than the percentages in the original Bill. Given that, given the real problem about bureaucracy and fights with transparency in the Bill, and given that all of us appreciate the major changes made already, would the Minister not consider the advantages of both clarity and transparency in accepting this amendment?
Both interventions raise the same point. I say to the noble Lord, Lord Campbell-Savours, that I tried to explain how the £9,750 registration limit comes into play, but I also went on to indicate that the Electoral Commission, in its guidance, will make very clear the operation of the various registration thresholds, including this one with regard to the constituency limit, so campaigners should be in no doubt. In response to that and to my noble friend Lady Williams, I have a lot of sympathy with the point, but the figure of £5,000 is better than a percentage. I do not want to embark on the theology of the percentages because they run through the Bill, but the figure itself will appear in the guidance from the Electoral Commission.
One of the concerns about the administrative burden is that smaller organisations could be caught up. It may be that in one particular constituency there is one constituency issue with which a small campaigning group has become engaged. If we set the limit at £5,000, they may find suddenly that they have to put in place a bureaucracy and administration to deal with that. The higher limit of £9,750 would probably address such concerns, which is what we want to try to ensure. It is often so when you have an individual campaign in an individual constituency. I accept that there is no perfect answer to this. It was a judgment call as to whether we should keep the limit as low as £5,000 or, having listened to those who thought that was too low for individual constituency cases, whether it might be possible to raise the sum. For that reason and to strike that balance, we thought that £9,750 was an appropriate amount. Therefore, I invite my noble friend to withdraw his amendment. I give way to the noble and learned Lord, Lord Morris.
My Lords, I apologise for having misread the grouping of my amendment as scheduled. I will now make a brief comment. I understand that the Minister has referred to it already and to what my attitude is.
In our previous debate on Report on the costs to third parties of Welsh-language publications, which I thought to be excluded from the ceiling on third-party expenditure, I welcomed the helpful comments of the noble and learned Lord, Lord Wallace, which were in the same vein as those made in Committee by the noble Lord, Lord Gardiner of Kimble. The failure to be aware of how well used the Welsh language is in campaigning, in documents and in many other ways, has become obvious. It is very different from the time, long ago in the 1960s, when I was a young Transport Minister struggling with officialdom to meet the demand for Welsh forms and licences. As the noble and learned Lord, Lord Wallace, said, the oversight goes back to the 2000 Act. If this short debate does nothing else, it will remind policymakers and draftsmen that the Welsh Language Act 1993 was passed and that there was a sea change in the use of the language.
The noble and learned Lord, Lord Wallace, indicated that I went too far in seeking to extend the excluded costs beyond the payment to a translator. I understand that argument, but an organisation could publish a modest amount of literature in English and flood the electorate with Welsh material a hundredfold bigger. My main point remains that, on a narrow interpretation of Amendment 25, an organisation might be inhibited from actually producing Welsh material. In my view, you have to produce paper to be able to translate it, and I argued accordingly. I believe that the Minister was then taking a more restricted view. However, the noble and learned Lord, Lord Wallace, said that there was not much between us and that we should try to reach a consensus without creating loopholes whereby much more material was produced. I suggested that, in the short time available, the Government might seek the views of the Electoral Commission.
When I returned to west Wales late on Friday afternoon, I was encouraged to receive a telephone call from the noble and learned Lord, Lord Wallace, from Edinburgh, for which I thank him very much. That was indeed a long-distance negotiation. I kept the Welsh Language Commissioner in Cardiff informed. I understand that the Electoral Commission has been consulted following my suggestion and has agreed to the new form of words. The amendment has been drafted by parliamentary counsel, to whom I am grateful.
I would therefore be very interested in the guidance that the Minister will give regarding the interpretation of this amendment. The words “in consequence of” can have a wide connotation. If it is a wide connotation we have no fears, but if it is narrow and restricted the problem will remain. For example, I was e-mailed in the past few days by, I believe, a representative of an organisation that had to publish its reports bilingually. The full cost of its recent annual report—design, print and second-class postage—amounted to £9,508. The translation cost was £835—about 9%. It believes that the full cost of the bilingual translation was 50% of the total. It would appear that while 9% would be discounted on a narrow interpretation of this amendment, 41% could not. Therefore, the Minister’s guidance on this amendment is crucial; otherwise organisations will be inhibited from providing Welsh-language material, which is a mischief that we and, I believe, the Government —and certainly the Welsh Language Commissioner—seek to avoid.
The Minister reminded me of the review that will take place on the workings of the Act. If this consensus does not work—I hope that it will—it may be necessary to take a further look at the matter.
My Lords, it may be helpful if I respond to the points made by the noble and learned Lord. I had already indicated that the Government are willing to accept Amendment 25. The noble and learned Lord, along with the noble Lords, Lord Wigley and Lord Elystan-Morgan, raised this important issue on Report. It is the case that costs should not be limited to the fee of the translator but should include other costs that arise as a consequence of that translation. We believe that Amendment 25 achieves that aim. It certainly enjoys the full support of the Government. All costs incurred as a consequence of the translation of materials to or from Welsh will not count as controlled expenditure. For example, when a three-page leaflet in English is translated into Welsh and becomes a six-page document, the additional costs of printing and paper will not be counted as controlled expenditure.
There was a general consensus when we debated this in the past. Certainly the Government do not wish to see a situation in which a campaigner could increase their effective spending by clever use of materials in different languages. That is not a result that any of us wanted. We believe that Amendment 25 achieves the right balance between excluding costs in connection with translation without creating the loophole. I think that we have struck the right balance, but as the noble and learned Lord said, there will be a review after the 2015 election. If some practical difficulties arise in the course of it, that matter will almost certainly be discussed; it would be appropriate to discuss it in the context of that review. I hope that that gives the noble and learned Lord the necessary reassurance.
I am most grateful to the Minister for his help. I shall not press Amendment 26.
If I may return to Amendment 9, my noble and learned friend made the very fair comment that this is a judgment call. It is not just my judgment with which he has a problem; it is the judgment of the Electoral Commission. I shall read again what it said, as I do not think my noble and learned friend covered this point. It said previously that if a registration threshold is identical to a limit, there is a problem. It said that,
“this approach would cause significant workability problems, since in practice campaigners will either remain below the registration threshold or will be in breach of a spending limit. We therefore do not support this amendment”.
That is precisely where the Government’s amendments have left us.
As I also said, I am not wedded to the figure of £5,000. If it were necessary, we could go up to £8,000. The key point is that there must be a gap between the registration threshold and the limit. That is not my advice but the advice of the Electoral Commission. That is its judgment call. Therefore, I must invite my noble and learned friend to think carefully before this element of the Bill is considered by our colleagues in the other place tomorrow—as it will be, since there will be government amendments that they will be addressing—as to whether there is not some way that we can deal with this very serious problem. On the basis that I still regard this as an important judgment call—one on which I think my noble friends and I differ, the Electoral Commission being on my side—I am happy for the time being to withdraw this amendment.
Amendment 9 withdrawn.
Clause 29: Constituency limits
10: Clause 29, page 17, line 36, leave out “that Schedule” and insert “Schedule 10”
Amendment 10 agreed.
11: Clause 29, page 18, leave out lines 5 to 18 and insert—
“(1) For the purposes of this Schedule “third party constituency expenditure” means controlled expenditure incurred by or on behalf of a third party in relation to—
(a) election material falling within paragraph 1 of Schedule 8A which is addressed to electors (whether addressed to them by name or intended for delivery to households or otherwise distributed within any particular constituency or constituencies), or(b) unsolicited telephone calls falling within paragraph 2 of Schedule 8A, made to such electors or households which can reasonably be regarded as intended to ascertain or influence their voting intention,where the effects are wholly or substantially confined to any particular constituencies or constituency.(2) Third party constituency expenditure—
(a) shall be attributed to those constituencies in equal proportions, or(b) shall be attributed solely to that constituency,as the case may be. (3) For the purposes of sub-paragraph (1), the effects of third party constituency expenditure are wholly or substantially confined to any particular constituencies or constituency if—
(a) there is no significant effect in any other constituency or constituencies, and(b) it can reasonably be inferred that the third party selected the relevant electors or households (or both) or otherwise distributed the material wholly or substantially to contact electors in the particular constituency or constituencies and not a wider section of the public.”
My Lords, I recognise the great importance of constituency limits, and believe that there should be real restraints in place to stop large sums of money distorting an election result at constituency level. There is therefore no disagreement about the purpose of this clause. However, as the original draft did, the current version has grave drawbacks.
First, in its briefing before Second Reading, the Electoral Commission said in effect that it was unworkable and unenforceable. Its exact words were that, even if it were given extra resources,
“it will be challenging to obtain robust evidence to determine and sanction breaches in specific geographical areas, for example, regarding the effects of a leafleting campaign or mobile advertising in different constituencies ... it is likely to be difficult to demonstrate that a breach meets the necessarily high test for using a stop notice to intervene to halt campaigning activity”.
Secondly, campaigning groups have pointed out many times that for the most part they are not organised on a national basis, and it would be a huge administrative burden to divide up national expenditure on constituency lines.
Thirdly, a number of campaigns—for example, against a hospital closure or a motorway extension, let alone HS2—cross a number of constituency boundaries. It would be difficult to allocate expenditure in a transparent way that could be policed by the regulator. With a view to keeping constituency limits, but making them more workable and enforceable, the noble Lord, Lord Tyler, brought forward an amendment on Report, but withdrew it in the hope that the Government would bring forward their own amendment to meet these major concerns. In the event, the Government have not done this. I have therefore tabled this amendment, which builds on the concerns of the noble Lord, Lord Tyler, to take into account the point made by the Minister in his response. It also takes into account legal advice to make the wording more precise, clear and therefore workable.
The fundamental principle behind this amendment is to capture, for the purpose of controlled expenditure, activities that can be clearly monitored, costed and enforced. This means,
“election material … which is addressed to electors whether addressed to them by name or intended for delivery to households”.
This was the amendment of the noble Lord, Lord Tyler. I have added the phrase,
“or otherwise distributed within any particular constituency or constituencies”.
This is to meet the point made by the Minister, who said:
“A third party could therefore freely distribute leaflets by hand in a town centre, or, indeed, in shopping areas in different parts of a constituency, in the knowledge that, because they are not being delivered to voters’ homes, the associated costs need not be accounted for in that constituency’s limit”.—[Official Report, 15/01/14; col. 302.]
So, under my amendment, that activity would be captured and would count towards the constituency limit.
The second activity included in the amendment is,
“unsolicited telephone calls … made to … electors or households … which can reasonably be regarded as intended to ascertain or influence their voting intention”.
Sub-paragraphs (2) and (3) proposed in the amendment provide a more detailed definition of what is meant by targeting one or more constituencies. In principle, activities would be subject to constituency limits where the distributional contact is “wholly or substantially” due to their location in one or more particular constituencies. This avoids mailings based on general issues becoming subject to constituency limits where the location of recipients is primarily chosen because they are affected by an issue, or have expressed a concern about it, rather than on an electoral basis. These mailings may be subject to controls on a national level even if they are not subject to the constituency-specific limits.
The amendment before the House today differs from Amendment 52 as tabled on Report by the noble Lord, Lord Tyler, and others in that it would include material distributed other than by delivery to addresses, such as through distribution in shopping centres, and in that it provides a more detailed definition of what is actually meant by targeting one or more constituencies. My proposed new sub-paragraph (3)(a) is, I think, uncontroversial in that it simply repeats wording already contained in Clause 29. Proposed new sub-paragraph (3)(b) is a response to the response of the Electoral Commission, which, in an earlier briefing, said:
“In principle, we support amendment 52, tabled by Lord Tyler and others … We see benefits in defining the scope of activity covered by the constituency controls more narrowly than in Part 2 of the Bill generally. For example, costs relating to material sent to specific addresses can be identified and evidenced with some confidence”.
However, in its further briefing for Report, while reiterating its support in principle for the amendment, the commission was concerned about general campaigns on an issue and how costs associated with them would be allocated to each constituency:
“If Parliament wishes to narrow the scope of the constituency controls so that they only apply to mailings and unsolicited phone calls, we recommend that this should only apply to campaigning that appears intentionally concentrated in particular constituencies”.
Sub-paragraph (3)(b) proposed in the amendment addresses that point, in relation to both telephone calls and leafleting, much more carefully, because it tries to define what is meant by a constituency. In its final briefing, which we received just before this debate, the Electoral Commission says:
“On balance, we support this amendment, which should make the new constituency controls more practicable for campaigners and more enforceable”.
Given the concern this part of the Bill has aroused among third-party campaigners and the concern of the Electoral Commission about its enforceability, and taking into account the additional wording in this amendment to meet the concerns of the Minister and of the Electoral Commission, I very much hope that the Government will be able to accept it. I beg to move.
My Lords, my name is also on the two amendments in this group. I start by very briefly saying that, on some aspects of the Bill, the Government have clearly listened and responded positively, for which we are all grateful. That makes it harder for me to say, as I stand up yet again to carp and complain, that I hope that they will not dismiss the words that I have just used. The reality is that the Government are determined to have Clause 29, which I suspect—even if this modest amendment is accepted by the House today—will have little value except to serve as a warning to future Governments tempted to make constitutional changes without first thinking very carefully about them and the consequences.
The constituency limits introduced in the Bill, which, as we all know, reduce the spending limit to £9,750 in the year of an election, do not do that for candidates or political parties but only for non-party campaigners. We were told at the outset that Clause 29 is necessary to reduce the perception of undue influence. That is curious, because there is no evidence—I have not heard any in the course of any of the lengthy debates—to support a claim that there is any such public perception or that the current combination of PPERA and the Representation of the People Act has been in any way ineffective in relation to non-party campaigning so far. There is no evidence that non-party campaigners are currently exploiting the existing law by focusing their spending on a particular constituency. Indeed, no data are presently available on third-party spending by constituencies.
I appreciate that the Government say, “Ah, well, but this might happen”, and we have heard chilling predictions based on what has happened elsewhere, but the result is a piece of legislation which is a stab in the dark to try to deal with a theoretical loophole. However, the loophole is going to remain wide open because after the Bill is passed there will be no restriction on either candidates or political parties, for which the situation will remain as before. What is to stop a campaign registering as a political party, putting up a couple of candidates and spending the whole of its national limit in one constituency? The answer in the Bill is: nothing.
As the noble and right reverend Lord, Lord Harries, said, unlike candidates and political parties, most non-party campaigns are not organised on a constituency basis, so the administrative impact on them will be huge. It will require new record-keeping and accounting systems, which may well cut across their existing ones. It will certainly deter many of those with limited resources, which most small campaigns have, from speaking up at election time and campaigning, which should be their right.
This will entail serious headaches of apportionment for those involved in cross-constituency campaigns, but nothing like as great as the headaches that the Electoral Commission will suffer before it has to provide guidance for a whole range of possible aspects of constituency campaigning instead of the rightly limited and targeted ones set out in the amendment. What will it say of a rally aimed at a particular constituency but held in the park over the boundary in the next-door one, in the safe seat, where no further spending is intended? What guidance will it give about the meeting that draws people from a number of constituencies; for example, in a campaign to save a local school or hospital with a catchment area that crosses boundaries? What will it advise about the travelling battle bus, with its posters, going back and forth across constituency boundaries? The answer to all those questions at the end of all our debates is: who knows?
What the campaigners make of the Bill, with its disproportionate administrative burden for them and the petty restrictions it imposes, is nothing to what the Electoral Commission will have to try to deal with at election time: the burden of countless allegations from opposing campaigns in constituencies, which the Electoral Commission itself says are likely to be unresolvable,
“within the timescale of an election”.
Apparently, no reassurance or adequate provision is anticipated to enable it to carry out the necessary investigations of those complaints even after polling has taken place.
None of this touches on the ease with which some of the proposed restrictions could be bypassed. I have not yet put my mind to it but I am sure that others will. As I say, what of the rally targeted at the marginal constituency which takes place in the park within the neighbouring safe constituency’s boundaries where no other spending is proposed? Instead of requiring the Electoral Commission, which faces the nightmare task of preparing guidance once this Bill passes, to consider and cover all these possibilities, surely it makes more sense to concentrate the constituency limits on the direct approach—the leaflets, telephone calls and “push-polling”, about which we heard, some of us for the first time, from the noble Lord, Lord Gardiner, earlier—aimed at the constituents in that seat. That is what this amendment does.
As the noble and right reverend Lord, Lord Harries, said, the Electoral Commission supports this amendment; indeed, he read out its words. It has played a part in approving the drafting. I hope that the Government will support it and, if a vote becomes necessary, that the House will.
My Lords, I shall not detain the House for more than a few moments. I put my name to the amendment for all the reasons that the noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Mallalieu, so splendidly and lucidly outlined. I will underline just one point, which was touched on by the noble Baroness in her concluding words. We have established in this country an Electoral Commission. It surely makes no sense to fly in the face of the commission and make its work more difficult and more complicated when it will have a difficult enough task monitoring the election in May 2015. My noble and learned friend, who has been extremely helpful and has listened with care, has come back to us with a number of improvements to this very unsatisfactory Bill—he himself has made it much more satisfactory than it was when it first came before your Lordships’ House—but I urge him to go just one step further and accept the good sense that is contained in this amendment, and to bear in mind that it has been in part drafted, as the noble Baroness said, by the Electoral Commission. We should listen to its sage advice and incorporate this amendment in the Bill.
Does the noble Lord envisage the third party groups being registered charities? Does he see any inhibition on a third party group being a registered charity?
I suppose that the answer to that question, which is a perfectly reasonable one for the noble Lord, Lord Martin, to ask, is that some would perhaps be eligible but others would not. We know from what we have debated in this Bill that not every such body can become a registered charity; it depends on what the aims are. It is possible that some could, but certainly not all of them.
My Lords, in respect of the comments made a few moments ago by my noble friend Lord Cormack about the Electoral Commission, perhaps I should put on the record that I sit on an informal cross-party advisory group for the Electoral Commission. It is not a pecuniary interest, but it means that I take very seriously its advice.
As the noble and right reverend Lord, Lord Harries, said, Amendment 11 builds on my own amendment on Report last week, and on Amendment 170A in Committee, and I welcome the fact that it is still here for our discussion. However, I believe that too much building has taken place, and I regret to say that I think that the lawyers have been too clever by half. The purpose of my amendment was to simplify drastically the operation of the constituency limit. I wanted to do away with any need for anyone to work out what did or did not have a significant effect on whom. That was the previous test, which I thought was extremely ineffective and very difficult for small organisations to address without great bureaucracy.
In my estimation, if election material that can reasonably be regarded as seeking to promote or procure the electoral success of a party or candidate has been sent directly to an elector in a constituency, it should be counted under the relevant constituency limit. That seems to be a very simple test. Likewise, if unsolicited telephone calls are made to ascertain or influence voting intentions, it is easy to know where the people whom you are calling live and to allocate those costs to a constituency limit. The amendment on Report was about simplicity.
However, my noble and learned friend the Minister made a compelling point on Report last week. He said that materials could be distributed within a constituency other than by delivering them directly to electors’ homes—they could be handed out in town centres, for example. The noble and right reverend Lord, Lord Harries of Pentregarth, has rightly tried to meet that point in proposed new sub-paragraph (1) of his amendment, but the complication of considering whether materials handed out in a town centre are trying to influence a constituency result has led him and his advisers to complicate the amendment with proposed new sub-paragraphs (2) and (3) of the amended schedule. Therein lies a problem.
The cumulative effect is to ask those campaigners—many of them small operations, as we have been constantly reminded—to consider their spending against not one test, as I advocated last week, but three. First, there is my test, which I have already given: are the phone calls and election material directed at a particular elector or household? That is easy. Then we have in this amendment, secondly: does the material have a significant effect just in the constituency to which it was sent? Who can tell? When can they tell? Perhaps they can tell only after polling day. Therein lies another problem. Then there is the third qualification: can it reasonably be inferred that the third parties selected the electors in order to contact electors in that constituency,
“and not a wider section of the public”?
Who will adjudicate on that and when?
I do not know how one can be sure of either of the latter tests, either in terms of the Electoral Commission and its very proper responsibilities, to which my noble friend Lord Cormack has just referred, or of the organisations that have been in touch with us over the past few weeks. I can see that it may be necessary in relation to the narrow issue of handing out leaflets in a town centre. After all, leaflets handed out in the town square of my old North Cornwall constituency would almost certainly be directed at North Cornwall’s results and voters, but leaflets handed out in Trafalgar Square might not be directed only at voters in the City of London and Westminster.
That is a problem—one brought about by the Minister’s legitimate concern about the distribution of leaflets in a town square. If we had more time for drafting, I would be able to find some additional tests, but only for this additional activity of handing out leaflets rather than for all deliveries that could take place. It is a rather complicated point and I apologise for that to Members of your Lordships’ House—but it is an important one.
As the amendment is drafted, it means a loophole is created, permitting direct communication with voters outwith the constituency limit because it could somehow be deemed under sub-paragraphs (2) and (3) of the amended schedule that the materials sent to them were not really supposed to influence the constituency result. I do not buy that, and at this stage it leaves a real lacuna. If you write to a voter in a constituency to promote or procure the electoral success of a party or candidate, I am confident that you are trying to promote or procure their electoral success in that constituency. That is a simple rule, and one it would be simple for campaigners big and small to follow.
At every stage of the Bill, from Second Reading right through to Report last week, I have been concerned to simplify and clarify the requirements placed on campaigners, reflecting what they—the campaigners, who are charities and other organisations—have said consistently to me and my Liberal Democrat colleagues in both Houses, and no doubt to many other Members of your Lordships’ House. None the less, I regret the position we are now in since I have pursued this issue right from Committee.
I return to the point made by my noble friend Lord Cormack: the Electoral Commission still says that it has concerns about the enforceability of a constituency limit. There needs to be a constituency limit. A revised amendment along these lines would make that more effective and much easier to enforce. Combined with the sensible changes to the constituency threshold that I outlined in the debate on the previous group of amendments, the whole regime would be much tighter and more workable, which is what the Bill sets out to achieve.
Following up on the point made by my noble friend Lord Cormack, I promised to refer to the advice given to us by the Electoral Commission. At the end of its advice to us for today, referring to Amendment 11, it said:
“We think this amendment would reduce this problem, but in practice it will still often be difficult to obtain adequate evidence of a breach at a constituency level and deal with it before polling day”.
That is an extremely important point. To that end, I hope that my noble and learned friend the Minister will respond positively to this amendment, even if it means that some simplification must be achieved in the other place tomorrow.
The noble Lord knows that I value simplicity even more than he does. Would he not agree that it was right to try to respond to what the Minister said about the distribution of leaflets, and that if you were doing that, you had to try to define what was meant by focusing on a constituency or influencing the voting intentions of people in a constituency? Would he not also agree that, while there was, of course, a qualification at the end of the last advice from the Electoral Commission that there were probably difficulties remaining, the difficulties with this Bill are now far less than they were originally or even, perhaps, with his own amendment at an earlier stage?
My Lords, in response to that, I certainly agree that the Bill is greatly improved and I pay tribute to the noble and right reverend Lord for the amazing amount of work that he and other noble Lords have undertaken to achieve that purpose.
I regret very much the speed with which we have moved from Report to Third Reading and that we did not have a genuine opportunity—we only had a comparatively few hours yesterday—to look at this together. I regret even more that any amendments passed today, whether government amendments or others that are passed by your Lordships’ House, will be considered by the other place within 24 hours. The short period for discussion of any necessary improvements is very unfortunate. Had his amendment simply brought in the point raised by the Minister about leafleting, and therefore stuck rigidly to the simplicity of the first provision in his amendment, I would be much happier about it.
My Lords, I intervene briefly in this debate because I am struck time and again in the exchanges in this House by the endless pursuit of perfection in an area where I do not think that perfection can be achieved. We have to accept that the best compromises that we can get are the best that we can do by this Bill at this late date. I know that it reflects the failure of pre-legislative scrutiny and I know that it reflects the lack of consultation, but given that we are where we are, I think that the recent amendments put forward—not least the ones by my noble friend and those by the noble and right reverend Lord, Lord Harries of Pentregarth—further improve the Bill. We should be pleased with having produced that effect as the matter goes to the other place.
I completely accept what my noble friend has said that it is a great shame, given the lack of pre-legislative scrutiny, that the gap between the deliberations in this House and those that are starting in the other place tomorrow is, frankly, ludicrous. It does not enable the other place to take into account the very careful and deliberate thought that has been given in this House, not least by the noble and right reverend Lord, Lord Harries of Pentregarth, and his very impressive commission, which most people here agree went into this Bill in great detail, produced some excellent amendments and really gave us the opportunity to say that the House of Lords has made a constitutional contribution of the kind for which it is distinguished in a large range of legislation.
I do not want to detain the House, but I share the view that there are certain limitations on the whole issue of dealing with leafleting and all the rest of it. I also recognise that what has come out of this is the best attempt we could make to simplify an extremely complex Bill and to keep as largely as we can the concept of constituency limits.
I have the greatest respect for outstanding intelligence, but I think that, in what the noble Baroness, Lady Mallalieu, said in her defence of the position she would like to see, she went a bit far. I think that she should have been a bit more fair about the extraordinary efforts made by Ministers in this debate to try to meet some of the points that she so forcefully made about the need to protect the freedom of speech and expression of the non-party campaigning groups. She is quite right about that, but I think that she was less than generous in her failure to recognise the extent—by raising the threshold and other ways—to which Ministers have tried to meet some of the arguments that she and some of her colleagues have made.
Having said that, I hope that Ministers will be able to pay particular attention to elements of what has been said in this House and to draw the attention of the other place—which means that they will have to work very hard tonight, I appreciate—to the points that have been made here that have not altogether been carried out. Having said that, in a very constrained situation, I think that this House and the commission can legitimately say that they have made a very substantial contribution to making this complicated Bill as good as it could be made.
My Lords, I come in briefly, having listened to the arguments surrounding this amendment. The noble Baroness is quite right that we cannot get perfection, but I wish that we could put on record and give due consideration to the men and women who, when a general election or municipal elections come, put their names forward as parliamentary candidates. I had the good fortune to be in a constituency where, although I hated the term “safe Labour seat” and cringed whenever anyone said it because the seat had to be worked at, I had significant admiration for those candidates who came into that constituency and said that they were flying the flag for their party—Conservatives, Liberals or the SNP. Remember that many of us get to our feet and talk about the new democracies in Africa and those that used to be behind the iron curtain, but one thing that we have to do as parliamentarians is to teach people how to be parliamentary candidates.
That brings me on to these campaign groups and it is why I asked the noble Lord, Lord Cormack, whether they might be registered charities. The noble Lord, Lord Tyler, said that they might be, if I picked him up correctly. Let me look at the registered charities which embark on campaigns. I know that the situation is different now when a general election is called, because we have got ourselves this five-year election term and people see that we can go right to the wire on a given date, five years from the previous election. In the old days, we used to sit in the tea room in the House of Commons wondering when the Prime Minister was going to go to the country, which meant that the campaign groups could not put the kettle on and say that it would be on a certain date—even those who were closest did not know that. Now that we have this five-year situation, perhaps I might send a message out to people in charities that they should use their heads. If they want to campaign, they have four years and three months, I think, in which to campaign. They should let the general election take its course with the parliamentary candidates because there is a danger here.
Let us take hospital closures, which the noble Lord mentioned. We all hate to see hospital closures, but we know that certain people have sinister reasons for being involved in a campaign, which is to embarrass a certain parliamentary candidate. I have heard the term “putting up score-cards” used during this debate. Some of these campaigns put up score-cards and say, “This is a good candidate, who has campaigned against the closure of a given hospital”. What if it was a Minister in that constituency who was holding office and had another portfolio? That Minister would not be allowed to say, “Don’t close that hospital”, yet some of these campaigners choose not to see that and say, “This is the good guy who is prepared to campaign, while your sitting Member of Parliament has been silent”. We know full well that the reason he or she has been silent may be that they are holding the office of Secretary of State. They could be holding the office of Prime Minister. However, what they have been doing in the background may have been excellent in fighting for the local community and its hospital.
I say to the charities that they really have to watch what they are doing. Every time I give to a charity, I am asked whether I am a taxpayer. If I am, the Inland Revenue will give money to that charity, so a high proportion of what charities are receiving involves the public purse and they should be careful about what they are doing. Also, it might be argued that a campaign body in an area that has no charitable status may call on other groups that have charitable status to support it.
I do not know if I am articulating my point properly, but we must give serious thought to the fact that decent men and women get into these constituencies during the general election and fight in good faith. It is wrong for some of these campaign groups to get involved when the democratic process, such as a general election, is on.
My Lords, first, I endorse the words of the noble Baroness, Lady Williams, about the work of what by way of shorthand we call the Harries commission. The noble and right reverend Lord and his colleagues have done both the charity sector and this House an enormous service.
As we have emphasised, we have two problems about the Bill’s brand-new constituency limits, which obviously apply to the wider issues covered by the Bill, which might in theory have an effect in one or more constituencies. The major problem has already been articulated: it is not their intention or purpose, in the words of the noble and right reverend Lord, Lord Harries, but their workability. Charities and campaigners simply do not organise or do their accounts or even think in constituency terms. They focus on the proposed path of the HS2, the flight paths around Heathrow, the ground under where fracking will take place, the location of badger sets or the location of a polluting factory. That is the focus for their work.
For them, therefore, a requirement to record and account for their staff time and expenditure on a whole new geographical basis—indeed, on boundaries which are probably unknown to their accounts department—will be highly problematic. It will add enormous bureaucracy when, as we have said before, the Government are elsewhere trying to reduce red tape. Accounting for expenditure on the basis that it might have an effect on a constituency would require those charities and other groups to develop a whole new financial accounting system, a demand which surely cannot be achieved even by the new and welcome date of September.
Our second concern is also one that has already been mentioned. It is the worry of the Electoral Commission about whether the new constituency limits are enforceable in the timescale of an election. There is nothing worse than having a rule or a law that is unenforceable, because it undermines the rest of the law. The Electoral Commission considers that Amendment 11 would at least reduce its enforceability worries, although it still fears that it would often be difficult to get the information and evidence for any breach of constituency-level spending and deal with it before polling day. Amendment 11, which, as we have heard, limits the new reporting requirements to telephone calls, literature to households and physical distribution in a defined area, seems to us eminently sensible. That sort of spending is preplanned and easy to measure. As the Electoral Commission says in supporting the amendment,
“We see benefits in defining the scope of activity covered by the constituency controls more narrowly than in Part 2 of the Bill generally”.
Given the widespread support across the House for the amendment, I think that the Government would be well advised either to heed the wise words of the noble Lord, Lord Cormack, and accept the amendment or, at the very least, to undertake not to implement their new constituency rules until after the 2015 election. That would give charities time to think about whether it is possible to do their accounting in that way, and it would give the Electoral Commission the opportunity to sort out those demands on enforceability. I think that the former course is better—to accept the amendment. We certainly support it.
My Lords, I thank the noble and right reverend Lord, Lord Harries, for this amendment and for the opportunity to discuss these issues on constituency limits. It is an issue that has featured in discussions not only today but at previous stages of the Bill’s passage. It is appropriate that we give consideration to this, which members of the commission might see as the outstanding item still to be addressed. The amendments are very similar to those tabled by my noble friend Lord Tyler on Report. My noble friend’s amendment, which we discussed last week, sought to narrow the range of activities which would be considered controlled expenditure for the purposes of constituency limits. Although I made no commitment on the part of the Government to returning to this at Third Reading, I indicated at the close of the debates on Report that we would ensure that officials raised these matters with the Electoral Commission.
I understand the point about simplicity. We have sought in many respects to reduce the administrative burden, but it was clear from the discussions that took place subsequently with the Electoral Commission that there was no technical fix. My noble friend Lord Tyler was almost asking me the same again at the end of his contribution to the debate on this amendment. There was not a technical fix but there might be a policy fix. It is a policy fix that is inherent in the amendment of the noble and right reverend Lord, Lord Harries, which would remove some categories of expenditure from being counted towards the constituency limit. For reasons that I will explain, the Government are unable to accept that there should be that policy switch.
First, I acknowledge that, in moving the amendment, the noble and right reverend Lord, Lord Harries, accepted the principle of constituency limits and sought to address one of the points of concern I had raised with regard to the amendment of my noble friend Lord Tyler. He also sought to address the practical issues raised by the Electoral Commission. In the context of trying to relieve some of the administrative burden—going back to the earlier debate, just to remind your Lordships’ House—it is also important that the original proposals had a limit for the constituency spending and a smaller limit for the post-Dissolution period. There was a much smaller limit for campaigning activity that could be spent between the date of the Dissolution of Parliament and the election. We have taken away that interim threshold, again in an effort to help smaller organisations which may be campaigning in one constituency.
We believe that these amendments would require that any expenditure on election material addressed or delivered to households, and any unsolicited telephone calls made with a view to ascertaining households’ voting intentions, would be attributed to a particular constituency or constituencies for the purposes of the limits. The noble and right reverend Lord’s intention appears to be that only expenditure on such activities should count towards constituency limits. He goes further than my noble friend Lord Tyler did last week to suggest considering the costs associated with the distribution of materials otherwise in a constituency—which was the example I gave. I fully accept the example that I gave of activity in a shopping centre, which clearly would relate to the one activity.
I was somewhat bemused by the point made by the noble Baroness, Lady Mallalieu, when she complained that there was a loophole. It appears to me that if you take away other activities which have to contribute towards controlled expenditure, the loophole gets bigger. She indicated that it could be a loophole to have a rally just over the constituency boundary. First, whether a rally against a hospital closure that promotes the electoral success of one particular candidate counts towards a constituency limit depends on whether it has a significant effect in that constituency. Albeit that it takes place over the boundary in a neighbouring constituency, it could still have a significant effect in the first constituency and would therefore come within it. Of course, the loophole that would be created by this amendment would be the rally in the constituency itself—over the boundary it would not count at all. I believe that is a criticism: there are activities that would not therefore come within the definition of “controlled expenditure”.
Constituency limits for third parties mean that they cannot outspend and overwhelm candidates and political parties, who after all are the main actors in an election. The noble Lord, Lord Martin of Springburn, made an important point, reminding us that elections are about the names of candidates on the ballot paper. It is not right that a candidate or a party campaigning in a constituency could be targeted by a third party with greater means and a greater spending limit at its disposal.
Taking into account both the long and short campaigning period limits, the most a candidate at the last parliamentary general election could have spent was £55,000; that is for the entire period. I may have misunderstood what the noble Baroness, Lady Mallalieu, said, but I thought she said at one point that parties could spend without limit. That is not the case. There is a limit on political parties. Indeed, in the course of the election period—the short campaign from the Dissolution of Parliament—it is roughly £12,000 to £13,000, depending on the number of electors, a figure that was mentioned by my noble friend Lord Cormack in one of our earlier debates.
However, a third party could choose to spend the entirety of its current spending limit in one small area, campaigning against that and other candidates or the parties they represent. That could be very substantial if one allows a range of activities not to be in any way brought into controlled expenditure. We have previously heard concerns that third parties, although an important part of the democratic process, can also be so closely aligned to a political party as to be effectively campaigning to promote that party. It is right that we take account of that. That is why the Bill introduces a number of provisions to give greater transparency to the activities and expenditure of third parties. The limits on constituency spending are a key element of the entire package in the Bill. The controlled expenditure incurred on the entire range of activities, not just those few proposed by the noble and right reverend Lord, Lord Harries, should be attributable to constituency limits.
Third parties are not merely in the business of distributing leaflets. They arrange and hold events, rallies and press conferences. They bus campaigners from area to area, delivering large groups of people to distribute those leaflets, or to take part in rallies or other events. Not to include these activities would mean that third parties could still continue to hold local media events on a weekly, or even daily, basis in the run-up to an election without any of that expenditure being brought within controlled limits. It would mean a third party could hold a rally on the eve of an election, secure in the knowledge that it need not account for the cost other than on a nationwide basis. It would mean that a third party could bus hundreds of campaigners into marginal constituencies and overwhelm the work of the candidates in that constituency.
These are all significant activities, and it is right that third parties should be required to account for them on a constituency basis. Narrowing the scope of constituency limits would address only half the problem. On that basis, recognising that in an election the actors are the candidates themselves, it was unfair, particularly in the period from the Dissolution of Parliament until the election, that they were limited to a relatively small sum of money—£12,000 or £13,000—while if you got two third-party groups in the same constituency, they could spend up to £19,750. We do not think that it is reasonable that a loophole should be created.
I would be most grateful if the Minister would reflect on one suggestion. I think that he would agree with me that Clause 29 is not the easiest of clauses to understand, particularly for those who are not familiar with legislative language. Would the Minister be prepared to have a conference with the Electoral Commission to try to draw up some mutually agreed guidelines to, and interpretation of, this new law? It is very important, and that would be extremely helpful—particularly bearing in mind that we have this ridiculous businesses of the Bill being in another place tomorrow. I cannot see the reason for that; maybe the Minister could comment on it.
Before the Minister finishes his speech, may I, too, ask him a question, to which I would be grateful for a response? All the examples that he has cited seem to be hypothetical. What examples does he have of the kind of conduct that he is railing against actually taking place? Where is the mischief that he seeks to legislate against?
My Lords, it was probably at one of the consultation meetings that my noble friend Lord Wallace of Saltaire held when we were discussing these matters that we heard about one substantial organisation that spent a considerable amount of money at the last election—and, indeed, registered the fact that it had done so. It was made clear that one of its activities was to focus on individual constituencies. I do not criticise that organisation for doing that, but if people are going to do such things, there should be proper limits so that there is proper transparency.
With regard to the point made by my noble friend Lord Cormack, whether I speak personally or on behalf of Ministers and officials, I think that a conference with the Electoral Commission to ensure clarity of guidance on the constituency limits could be very worth while. I say “guidance” because interpretation is, ultimately, a matter for the courts, not the commission. I am not even sure—I am making this up as I go along—whether it should be restricted to Ministers, or whether it might also include the Opposition and other parties, and representatives of campaigning groups. Some sort of round table discussion might be very helpful before the final guidance is produced by the Electoral Commission. On the basis of what I have said, I again invite the noble and right reverend Lord to withdraw his amendment.
Before I focus on what the Minister has said about the amendment, may I thank him, and the noble Lord, Lord Wallace of Saltaire, for responding on a whole range of issues to the concerns that have been expressed in this House? The Government really have moved a significant way; there is no doubt about that. But I think we are all aware that the Bill as it came to us in the first place was an appalling piece of legislation. A parliamentarian of very many years’ experience said to me that it was the worst piece of legislation that they had ever seen in a long parliamentary career. “Not quite”, I am hearing, so there must be some other cases as bad.
Again, the value of this House has been shown, as has the willingness of Ministers in this House to listen, so I genuinely thank them. I also thank noble Lords on all sides of the House who have supported some of the amendments tabled in my name and in the names of others. Not least, I thank members of the Electoral Commission, whose expertise I have had the privilege to share. The people there have worked extraordinarily hard. When I look at my e-mails in the morning I find that, night after night, they were sent off in the small hours of the morning; that gives you some indication of how hard they have worked.
Focusing on the amendment, I am disappointed that the Government have not been able to respond more positively. We made a genuine attempt to meet the point that they made about distributing leaflets, and the need to define very carefully what was or was not meant by a constituency in which there was an attempt to affect people’s voting intentions. Rallies have just been mentioned, but as the noble Baroness, Lady Mallalieu, said, if people want to get round restrictions on rallies they could easily do so by having a rally just outside a constituency where there is a narrow majority. There are all sorts of ways round, even as the Bill now stands.
My final point is about the Electoral Commission. I reiterate that it supported the amendment that has been moved today in my name and in the names of others. It said that there were still some difficulties with monitoring, but those would be nothing like the difficulties that it will have if the Bill goes through with the provisions on constituency limits unchanged. That will be extremely difficult, if not impossible, for the Electoral Commission. It is slightly surprising that the Government have not listened more carefully to what it has said. I think that the strength of feeling in the House on this issue is such that I ought to test the opinion of the House.
12: Clause 29, page 18, line 24, leave out “controlled” and insert “third party constituency”
Amendment 12 agreed.
Clause 30: Targeted expenditure limits
Amendments 13 to 17
13: Clause 30, page 21, line 1, leave out from “parties)” to “(as” in line 2 and insert—
“(a) in subsection (6), after “the purposes of this section” insert “, sections 94D to 94H”;(b) in subsections (8) and (10), after “sections 94A and 94B””
14: Clause 30, page 21, line 4, leave out “section 94A” and insert “section 94B”
15: Clause 30, page 21, line 39, leave out “3(2), 9(3) or (5), 10(3) or 11(3)” and insert “3, 9, 10 or 11”
16: Clause 30, page 22, leave out lines 7 and 8
17: Clause 30, page 22, line 40, at end insert—
“( ) It is a defence for a third party charged with an offence under subsection (2) or (3) to show—
(a) that any code of practice for the time being issued under paragraph 4 of Schedule 8A was complied with in determining whether any expenditure is controlled expenditure for the purposes of this Part, and(b) that the offence would not have been committed on the basis of the controlled expenditure as determined in accordance with the code.”
Amendments 13 to 17 agreed.
Clause 34: Returns as to controlled expenditure
18: Clause 34, page 33, leave out lines 13 to 16 and insert—
““(1) Subsection (1A) applies where—
(a) during a regulated period, any controlled expenditure is incurred by or on behalf of a recognised third party in a relevant part of the United Kingdom, and(b) the incurring of that expenditure would, if the third party had not been recognised, have been an offence under section 94(4) (whether because it was incurred in excess of a limit mentioned in section 94(5) or 94(5ZA)).”
Amendment 18 agreed.
Clause 35: Statements of accounts by recognised third parties
Amendments 19 and 20
19: Clause 35, page 33, line 25, at end insert—
“( ) In sections 90(3) and 94(8), (10) and (11), for “99” substitute “99A”.”
20: Clause 35, page 34, leave out line 22
Amendments 19 and 20 agreed.
Clause 39: Post-election review
21: Clause 39, page 39, line 41, at end insert—
“( ) The report under subsection (6) shall be laid before Parliament not more than 18 months after the date of the first relevant parliamentary general election.”
My Lords, I need not speak to this amendment for very long. We very much welcomed the Government’s commitment to have a review of the Act after the 2015 general election and that they will set up a person to monitor the election itself. That is all very much to be welcomed—not least of course because, even with the amendments that the Government have accepted, there is still a great deal of concern about this Bill.
We all know that there is a tendency for reviews to be spun out and spun out. That is why some of your Lordships were very keen to have a sunset clause. I believe that Amendment 21 will ensure that Parliament has a proper opportunity to see that review and respond to it well before the election following the 2015 election. We believe that 18 months is about the right time for a proper review to take place and for all the consultations that are necessary. I beg to move.
I want very briefly to support the amendment but also to remind your Lordships’ House that the Joint Committee on Human Rights expressed concerns about the implications of the Bill for freedom of association and freedom of expression. I would be very grateful if the Minister, in responding, could assure your Lordships’ House that the effects of the Bill on freedom of expression and association will be part of this review, the importance of which was underlined when discussed in Committee—although I do not think that this particular point was raised.
My Lords, I very much welcome the noble and right reverend Lord’s amendment. I believe that it is preferable to a sunset clause because it will start the process of analysis of what is happening under the Bill before the general election happens, rather than having to wait till a later stage. I hope that it gets an equally warm welcome from my noble and learned friend on the Front Bench.
My Lords, as the noble and right reverend Lord, Lord Harries, has indicated, the Government brought forward at Report an amendment so that there will be a review. The Government are committed to appointing a person to undertake the review within 12 months of this Bill receiving Royal Assent. That came out of one of the meetings that we had with one of the campaign groups, which suggested that it might be useful to have someone in place during the election. We thought that that was a very sensible suggestion and one for which we have provided.
I have discussed with the noble and right reverend Lord, Lord Harries, the merits and demerits of perhaps putting more in the Bill about what the review might or might not do, and we concluded that the minute we start adding things it begs the question as to what has been left out. There is no intention to limit the review, and I take the point made by the noble Baroness, Lady Lister. If people wish to make representations on that point in terms of the review, we would not anticipate anything stopping it—certainly there is nothing in the Bill that would stop it. I emphasise, however, that we believe that freedom of association and expression are vital. They are not impinged by the Bill; rather, what we have is transparency. We are not trying to stop people campaigning, but if they are campaigning in a way that seeks to influence an election it is not unreasonable that that should be transparent.
The next scheduled general election will be the opportunity on which the Bill will operate, and will provide a timely opportunity to review the effectiveness of those controls. On completion the person conducting the review must produce a written report which must be published and laid before Parliament by the Minister. The noble and right reverend Lord, Lord Harries of Pentregarth, tabled the amendment proposing that the report must be laid before Parliament within 18 months of the general election. It is right that Parliament should have the opportunity to consider the outcomes of the review well before the following 2020 election. It is appropriate that the review is done to an established timetable, and the Government are therefore pleased to accept the amendment.
I thank the noble and learned Lord for accepting the amendment. I do not know whether he can give any kind of indication, or feels that he would like to at this stage, about the groups or constituencies of people who would be consulted as part of the review. Perhaps he is not yet in a position to do that.
My Lords, I do not want to pre-empt the person who is appointed to undertake the review or in any way constrain what he or she will do. It might be an opportunity to reiterate something, not just in the context of the review, but on the point made in the previous debate by my noble friend Lord Cormack. I accepted the point that he made on the constituency issues: there might be merit in having groups—not just parties, but campaigning groups—involved in any guidance that emerges from the Electoral Commission. I readily expect that any review would involve submissions from the political parties that have been involved in the election, from charities, non-charitable campaigning groups, and people who have something relevant to contribute. As I said yesterday, we can always bet our lives that some issue will emerge that none of us has thought about, in spite of our very exhaustive discussions and debates. That is why it is important not to be prescriptive.
I thank the Government for their willingness to accept the amendment.
Amendment 21 agreed.
Clause 40: Duty to provide membership audit certificate
22: Clause 40, page 40, line 23, at end insert—
“( ) No union shall have to submit a membership audit certificate to the Certification Officer before August 2016.”
My Lords, at Report the Minister said that he was happy to offer reassurance that unions will have the time that they need to comply with this new legislation. He said that unions would,
“have at least 17 months to comply from the point at which the legislation takes effect, because the provisions will not apply retrospectively”,
“17 months is the combination of the 12-month reporting period plus the five months that is allowed after that period to submit the annual return”.—[Official Report 13/1/14; c. 92.]
So if Parliament granted Royal Assent next month, the earliest that the provisions could take effect is May 2016. However, this timetable is complicated by the fact that the Minister for Employment and Consumer Affairs gave an assurance in the other place that the Government will undertake a public consultation prior to commencement on the order that will set out who is eligible to be an assurer. In a recent letter, the noble Viscount also announced that the Government will use this consultation to inform the development of guidance for employers and employees, to support implementation, and he will be seeking further evidence to revise and republish the impact assessment before commencement. That was agreed when we were discussing the Bill earlier.
Our point at Report was that this section of the Bill will operate successfully only if the legislation gives the unions, and particularly the larger unions, adequate time to comply with the requirements in a way that is cost-effective, economical and practical from their point of view. Under questioning from my noble friend Lord Monks, the noble Viscount conceded that,
“this is not the most straightforward of timetables to set out and I would be very happy to meet the noble Lords, Lord Stevenson and Lord Monks, and any other noble Lords to clarify the timings”.—[Official Report 13/1/14; c.92.]
He also mentioned that there were ongoing discussions with the TUC and others.
That is the background to this amendment. My noble friend Lord Monks and I had a further meeting with the Minister when he confirmed that the department did want to adjust the timetable for the unions to comply. In a letter following the meeting, the noble Viscount wrote:
“Further to concerns raised about the time unions will require to prepare for the new requirements, and discussion both at Lords Report and separately between BIS and the TUC, I can also now confirm that the Government intends to work towards commencement in April 2015”.
It is indeed a complex picture of calendars. Our understanding is that this will mean that no union will have to submit a membership audit certificate to the certification officer before August 2016.
I hope the Minister will accept this simple amendment, which does, I think, reflect the Government’s intention. If not, I hope he will use the opportunity to spell out precisely the timetable for the unions so that we are all clear about what is required.
In closing, while we on this side of the House deplore this part of the Bill, which places costly and unnecessary burdens on the larger unions and poses a threat to the security of their data, the noble Viscount has, as usual, been unfailingly courteous to all of us who spoke in this debate, and he and the Bill team have been able to assist us on all our queries over these last few months. We thank him for that.
My Lords, I support the remarks of my noble friend Lord Stevenson. I hope the Minister will be able to confirm the points that are being raised and in particular the points that have already been covered to a high degree in a letter to my noble friend Lord Stevenson.
We still do not know why we have Part 3. It is onerous, it is expensive and it is uncalled for. There is no evidence of any problem that it addresses. There is no evidence that any questions of public interest about union membership cannot be addressed by perfectly adequate existing remedies, particularly the existence of independent scrutineers in ballots. There is no information about who wants this Bill, who has been pressing for it or what lobby is behind it. Transparency, which is in the title, certainly does not extend to the reasons why this part of the Bill exists. We simply do not know. We do not know who thinks this is deserving of public interest. The Government have still to explain that. I hope that one day—perhaps not today—we shall get an explanation of what this was really for and what it was all about.
This morning I received a petition organised by the TUC and others. It is signed anonymously by nearly 12,000 people. They do not give their names, they give their occupation and location details. The trade unions have got the information about their names. The individuals trusted the unions with this information. They do not trust these public officials who the Bill proposes to turn loose on union membership records. This is not an academic issue. We currently have over 2,000 cases in the construction industry of allegations of blacklisting—of people who have been out of work, in some cases for years, because of misuse of confidential information, allegedly by some of the most prestigious names in the construction industry.
This part of the Bill has no practical value. I regret it. I hope the Minister can confirm now that the problems, at least in terms of its introduction, will be eased. We do not respect Part 3 because we do not know why we have got it. We do respect the Minister and the courteous way in which he has dealt with us. I hope that next time he comes to the House with something about trade unions and employment, he has a real issue to address rather than the fiction which is in this part of the Bill.
My Lords, first, I take this opportunity to thank all noble Lords who have provided thoughtful and constructive contributions to debate throughout the passage of Part 3 of the Bill. I personally understand how sensitive many of these issues—some of which the noble Lord, Lord Monks, has iterated just now—are to some noble Lords. In particular, but by no means exclusively, I thank the noble Lord, Lord Stevenson of Balmacara, for his kind words earlier; the noble Lords, Lord Monks, Lord Whitty, Lord Beecham and Lord Lea of Crondall; and the noble Baronesses, Lady Donaghy, Lady Turner and Lady Drake. I also thank my noble friends Lord Tyler and Lord Balfe and, in particular, my noble friend Lord Cormack, whose brief contribution I failed to acknowledge on Report. Finally, I give my sincere thanks to the Bill team for all their hard work.
I know that the intention behind the amendment of the noble Lord, Lord Stevenson, is to probe the Government’s plans for commencement of Part 3 and to ensure that trade unions are given sufficient time to be able to comply with changes requiring them to report annually on their membership registers. On Report, I offered to meet the noble Lords, Lord Stevenson and Lord Monks, to discuss this matter in more detail. Indeed, as they alluded to, that meeting took place two days following Report, on 15 January. Noble Lords may like to be reminded that, on Report, I suggested that the earliest the provisions would be commenced was October 2014. I am pleased that I was able to say at the meeting last week, and can confirm to the House today, that commencement will not occur before April 2015. This follows careful consideration of what has been said during the parliamentary stages and concerns raised during the BIS consultation, as well as discussions between the Secretary of State for Business, Innovation and Skills and Frances O’Grady, the general secretary of the TUC.
Commencement in April 2015 would mean that the very earliest any trade union would be required to submit a membership audit certificate to the certification officer would be August 2016. In practice, it is likely to be later than that for many unions, as many have a calendar reporting year and would not be required to submit their first certificate until June 2017. Noble Lords will recall that this is because unions will submit a membership audit certificate for the first full reporting year after the changes become law. The 17-month period that I referred to on Report is a combination of the union’s 12-month reporting period and the five months that is allowed after that period to submit the annual return.
I hope that this thoroughly reassures noble Lords as, in the meeting that I had with the noble Lords, Lord Stevenson and Lord Monks, I was led to believe that the reassurances that I personally gave were accepted. However, we will continue to work closely with trade unions as we head towards commencement, in particular by discussing with them the guidance that will be needed as well as consulting on the draft order that identifies eligibility to be an assurer. I believe that an April 2015 commencement date will give trade unions the time that they need to prepare and to amend their rules, and understand that the general secretary of the TUC agreed that this was achievable. I have written to the noble Lords, Lord Stevenson and Lord Monks, and placed copies in the Libraries of both Houses confirming this. The Secretary of State has written in similar terms to Frances O’Grady. I hope therefore that the noble Lord is reassured and that he will withdraw his amendment.
My Lords, I thank the Minister for his very full response to our amendment. I am obviously sad that he will not accept the amendment as laid, as it seems to exactly mirror what he has announced, but maybe these are days when the Government do not want to see too many concessions being scored, so I understand the problems. Assuming that what he has said is exactly what we think it is, and given that we have letters and documentation to support that and that letters are also being written separately to the TUC confirming it, I beg leave to withdraw the amendment.
Amendment 22 withdrawn.
Clause 46: Transitional provision
23: Clause 46, page 52, leave out lines 24 to 31
Amendment 23 agreed.
24: After Clause 46, insert the following new Clause—
“Power to make consequential provision
(1) The Minister may by order made by statutory instrument make provision consequential on any provision of Part 2 or section .
(2) An order under this section—
(a) may include provision amending or modifying any provision of or made under PPERA 2000 (including any provision inserted by this Act),(b) may include incidental, supplementary, transitional, transitory or saving provision, and(c) may make different provision for different purposes or cases or for different areas.(3) A statutory instrument containing an order under this section that amends or modifies any provision of PPERA 2000 may not be made unless a draft of the instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.
(4) Any other statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(5) No order may be made under this section after the date of the poll for the first relevant parliamentary general election.
(6) In this section—
“the first relevant parliamentary general election” has the same meaning as in section ;
“the Minister” means the Secretary of State or the Lord President of the Council;
“PPERA 2000” means the Political Parties, Elections and Referendums Act 2000.”
My Lords, Amendment 24 introduces a power to make any provision consequential on Part 2 by order. At the outset, I wish to reassure noble Lords that the power is narrow in scope and will only allow the Government to make consequential amendments—it would not allow the Government to amend the fundamental principles and provisions included within Part 2. Any changes to the primary legislation would be subject to the affirmative resolution process.
The power is also time-limited, so that it could only be used until the date of the next general election. I emphasise that I hope this power will not be needed, but I consider it prudent to insert it into the Bill. Indeed, Amendment 7, which has already been agreed to by your Lordships today, was a starred amendment on the Marshalled List because it came up even since the Government tabled our amendments on Friday. We believe that we have introduced a number of amendments of significant benefit to campaigners and we would not wish to risk them becoming ineffective for any technical reason.
The Electoral Commission says it is important that Ministers should consult it, at least informally, before using the power. We agree that it is important to consult the Electoral Commission. I assure the House that we will consult it before making an order under this power, and the commission has agreed with that approach. Should the commission make a recommendation to use this power, we will consider it extremely carefully, but the circumstances in which we anticipate the need for this power would be to deal with any minor or technical drafting changes that are identified to ensure that the legislation is effective. They may be identified by the Electoral Commission or by officials or lawyers in government, and it would be counterproductive to suggest that only a commission recommendation could justify the use of this consequential provision. I beg to move.
My Lords, I remind the House that I am a member of the Electoral Commission. This new clause gives the Government the power to deal with any consequences of the Bill that turn out to be radically different from those intended. Such consequences may indeed include the workload and the efficacy of the Electoral Commission, which has been greatly commented on today and in previous debates. The noble Baroness, Lady Mallalieu, talked about headaches and nightmares for the Electoral Commission. I hope it is not quite as bad as that but I appreciate her point. My noble friend Lord Cormack called, in the right spirit, for sensible and simple advice from the Electoral Commission. Given the hideous complexity of the Bill, that is more than ever necessary in this case.
I wish to draw the Minister’s attention to a point about the consequences for the workload and efficacy of the Electoral Commission. Clause 38 alters the legal language in which the remit of the Electoral Commission is incorporated. The Government have done this without any prior consultation with the Electoral Commission. This non-consultation, while fairly common in this Bill, is unusual generally in legislation and is doubly so when one considers that the Electoral Commission is not a government body but one that reports to Parliament through the Speaker of the House of Commons. It is deliberately independent of government yet the Government have altered the wording of its remit without any prior consultation with the Electoral Commission or with Parliament.
The Lords Constitution Committee noted that the regulatory duties of the Electoral Commission had been extended and advised that:
“The House may wish to consider the implications”
of that. The Political and Constitutional Reform Committee in the other place actually said that the clause should be withdrawn, pending consultation with the Electoral Commission. Of course, that has not happened.
It is fair to say that the Government’s motives in doing this were well intended but, as has often been said, the road to hell is paved with good intentions. The Government’s contention is that the change in emphasis of the Electoral Commission’s remit provides reassurance to non-party campaigners and the Electoral Commission itself that its role and responsibilities are important and necessary and that it has the appropriate statutory backing.
That is commendable but, on closer scrutiny of the Bill, it is not helpful. The main thing Clause 38 does is to change “general function” to “duties” and change taking “appropriate steps” to taking “all reasonable steps”. The problem with this is that it reduces the flexibility of the Electoral Commission to deal with spurious or politically motivated allegations that are clearly unfounded. The lawyers in the House will appreciate the difference between “appropriate” and “all reasonable” steps. The problem is compounded by the fact that, as a result of the Bill, many more campaigners are likely to be regulated, as has been acknowledged by the Government and other speakers. Any allegations may peak at the climax of the election and thus lead to confusion and loss of confidence in the new regime.
As has been acknowledged, many provisions are untested. On the one hand, the Government are giving the Electoral Commission more to do; on the other, they are making it harder to deal with simple and unsubstantiated cases quickly and cost-effectively. I am sorry to raise this point so late in the deliberations on this Bill, but I think that the Electoral Commission has shown admirable self-restraint in wanting the House to concentrate on the content of the Bill rather than on the problems that it may have in enforcing it and regulating subsequently. It is important to raise that point before the Bill is finalised here. I would therefore be grateful if the Minister would ensure that the Government talked to the Electoral Commission about this problem, which may occur over the next few months, and if necessary take corrective action by means of the powers which they are taking under this new clause.
Finally, perhaps I may say as a new Member of your Lordships’ House that the debates on this Bill have brilliantly illustrated this House’s role as a scrutineer of legislation. The Bill has been much improved as a result of the House’s efforts, and pride of place in that respect must go to the noble and right reverend Lord, Lord Harries, and his supporters on the Commission on Civil Society. They have, in common parlance, played a blinder.
Occasionally, their supporters outside the House have gone over the top. A certain co-ordinated “holier than thou” attitude has sometimes been apparent. I have lost count of the number of campaigners who have told me in identical words, “This is a deeply unpopular Bill the need for which has yet to be substantiated”. Letter after letter contained that particular clause; they could have been a little more differentiated in the way in which they approached this issue. Those campaigners have also attempted to portray themselves as defenders of democracy. Actually, in my view, it is the Government who are in this case the defender of democracy. As my noble friends Lady Williams and Lord Tyler have said in a Guardian article, this Bill has a noble intent, which is to defend the democratic process from distortion by excessive interference by outside interest groups. Quite rightly, the Government want to make the electoral process as level a playing field as possible. The noble Lord, Lord Martin of Springburn, whose great expertise in this area we acknowledge, made that point forcefully in the previous debate. The Government have also shown a creditable willingness to be flexible, having originally consulted too little and drawn the Bill too tightly. I commend my noble friends for that.
The end result, I believe—and I believe that it is the view also of the Electoral Commission—is a Bill which is workable. If it proves that the unintended consequences can be dealt with by a review process, that should happen and I commend my noble friends on making provision for it. I therefore commend them on the way in which they have handled the Bill in its totality.
My Lords, is there a connection between the substantial powers inherent in the new clause proposed in government Amendment 24 and the fact that the Bill is to be returned to the Commons with there being inadequate time for substantial consideration of potential Commons amendments?
My Lords, concerns have been expressed about this government amendment allowing a Minister to have these powers on an Act which will go to the very heart of democracy—they are rightly called Henry VIII powers, I believe. The Government have given assurances that these powers are strictly limited and that they will consult the Electoral Commission. In view of the lessons learnt as a result of this Bill going through the two Houses, they may think that it is worth consulting more widely if they feel the need to bring orders before this House. It should be put on record that concerns have been expressed, but we are grateful, from what the Minister said, that the powers are strictly limited.
My Lords, very briefly, we are much indebted to my noble friend Lord Horam for what he said. He has clearly demonstrated admirable restraint during this Bill, knowing—as he has now made clear—that the Electoral Commission was far from happy and that he, as a member of that commission, shared at least some of that unhappiness.
This is an object lesson in how not to do things. I warmly commend my noble friend and my noble and learned friend—the brace of Lord Wallaces—for all they have done to make a very bad Bill palatable. They have exercised infinite patience, great care and unfailing courtesy, and we should all be extremely grateful for that. But that does not absolve the Government from blame for bringing in a Bill of this complexity in this way. I have said before, and will say again for the final time on this Bill, that if ever a Bill cried out for pre-legislative scrutiny it was this one. I sincerely hope that that lesson has been learned and that in future complex Bills of this nature, touching as they do on constitutional and parliamentary issues, will have the benefit of pre-legislative scrutiny. We have had a series of patch, make-do and mend amendments, many of them introduced by the noble and learned Lord, Lord Wallace, himself. I repeat: we are grateful for that, but that is not a substitute for a carefully drawn-up Bill that really meets a need.
My noble friend Lord Horam touched on the complexity of the Bill. Legislation should be readily understandable by those to whom it applies. When one brings in a whole range of new provisions that many of the bodies with which the noble and right reverend Lord, Lord Harries, has been involved never anticipated, they really should have the benefit of consultation. We now have placed before us what is a bit of a catch-all, Henry VIII clause. In principle I do not like Henry VIII clauses, but I concede that in this particular Bill something like it is probably necessary.
I am grateful to my noble and learned friend for responding so positively to the suggestion I made earlier about a round-table conference. That is good and he rightly said in that context that he wanted to go beyond the Electoral Commission. It is also very necessary that there are detailed discussions with the Electoral Commission directly. I suggest those involve leaders of the Opposition, too, because this Bill is likely to last quite a long time. As it is worked through, we need to make sure that all—or most of—the things we have said we feared do not come to pass.
My final words on the Bill in this House are that this has been an interesting exercise. I do not believe that we have produced something truly worthy of the important subject, but I agree with my noble friend Lord Horam that we have been able to demonstrate the value of this House in making a very bad Bill palatable in the way we have.
My Lords, I dip the tiniest of toes into the waters of this Bill, not as chair of the Delegated Powers and Regulatory Reform Committee but as somebody who knows a tiny bit about Henry VIII clauses, just to reassure noble Lords that this kind of power is well precedented and here it is very narrowly drawn. The House need not worry that the Government are in some way exceeding their powers or doing something they should not on this occasion. That is all I wish to say on this, but it has been very instructive to sit here and listen to the last few hours of debate on the Bill.
My Lords, my noble friend Lady Thomas of Winchester said, with typical modesty, that she had only a tiny knowledge, but she has more knowledge than most of us present in the House put together on the subject of Henry VIII clauses. I entirely endorse what she said. In fact, I do not think this is a Henry VIII clause because of its very limited impact. I think it is more, in terms of longevity, like an Edward VI clause, as Henry VIII ruled for quite a long time whereas Edward VI ruled for a relatively short time. It is more likely that that is the more appropriate historical analogy. As my noble friend just said, the power is only about consequential provisions; it includes the affirmative procedure; it is effectively sun-setted, because it is limited to the general election; and it is well precedented.
My noble friend Lord Cormack said just now that these were his final words on the Bill. He presumably assumes that the other place tomorrow will accept all our amendments or produce amendments in lieu that are so acceptable all over your Lordships’ House that we do not return to the Bill again. Let me be as optimistic as he is, just for a minute, and assume that that is the case. I therefore want to place on record my gratitude and congratulations to noble friends all around the House who have done some hugely important work on what I think is now a much better Bill and a necessary Bill. I am not sure that everybody in the House agrees with that, but I certainly said at Second Reading that I thought it was necessary and it certainly has improved.
I really think that we owe a very considerable debt to the Wallace duet. Ministers in the other place should perhaps take lessons from the way in which they have responded to very important proposed improvements to this Bill, which leaves this place in a much better state than when it arrived and that is very much to their credit. I am grateful to them for the way in which they consulted many Members of your Lordships’ House.
I think the noble and right reverend Lord, Lord Harries, would agree that the engagement of a large number of other people outwith the Westminster bubble—outside Parliament—in this process was actually a plus for your Lordships’ House. We must recognise that they were stirred by concerns and anxieties that were very real. I wish it would happen on many other occasions with many other legislative proposals. We may need to build on that in future. Perhaps it may be that those organisations will take more notice in future of the way in which your Lordships’ House scrutinises legislation, and that must be to the good reputation of Parliament as a whole.
I am glad that I have had the opportunity to contribute at all stages of this Bill and I welcome the way it is now leaving this House. That is due not only to the assiduous way in which many Members of the House contributed to these debates but to the engagement of a large number of others outside the House. That is a good result.
My Lords, we have some concerns about this power, but if we are given the reassurance that the Electoral Commission will be consulted and involved, that will reduce those concerns. I think the noble Baroness, Lady Thomas, has also added her imprimatur to that. I am sure that the Government will listen to the sage advice that they get from the Electoral Commission, should this be necessary.
I am much more optimistic than the noble Lord, Lord Tyler, so I think this will be our last outing on this Bill. I am sure that the good offices of the noble Lords opposite will be able to ensure that all is accepted down the other end tomorrow and they will not send it back as ping-pong. That is my assumption. Having already learnt, from the noble Lord, Lord Horam, on Report, the words “harrying” and being “harried”—referring to the noble and right reverend Lord—I am not sure what being “wallaced” is, but I think it must mean being heard with sympathetic ears. In this case, of course, it was four sympathetic ears and not just two.
We have complained about the timing of this and the shortage of time. Our complaints are of nothing compared to what it must mean to the Bill team. We are about to finish with this, but they are now going to have to scuttle down and do the whole thing again. Therefore, not only for their efforts but for the time constraints we put on them, we should give them a big thank you.
I thank my colleagues, some of whom are here. My noble and learned friend Lord Morris and my noble friends Lady Lister, Lady Pitkeathley and Lady Mallalieu are just some of those who have contributed. I also make a small thank you to a newish member of our own team, Byron Orme. This was the first Bill which he saw through this House so perhaps we can also thank everyone who, by their umpteen amendments, have helped him learn how to do that. He has been superb for us.
I thank the third sector, which I do not think went over the top. I saw an enormous amount of practicality—certainly when we from this side of the House said, “Look, that amendment just isn’t on”, they would say, “All right”, and come back with some different words, which showed practicality and an involvement in the political process at its best. I also put my thanks to them for the briefing which they gave to us all, whether we agreed with it or not.
My Lords, it is almost inevitable that concerns are expressed when an amendment of this nature comes forward. That is a quite proper function of the House, and the Government should be made to justify putting forward such an amendment.
First, I say to the noble Lord, Lord Campbell-Savours, that the proposed clause has nothing whatever to do with the fact that there will be Commons consideration of Lords amendments tomorrow. The concern is that because the agreement on the provisions relating to coalitions came so late in the day, we want to be certain that we can deliver the policy which we reassured the campaign groups that we would deliver, and that if things emerge at a later stage, not necessarily in the next 24 hours, there will be an ability to do so. I am reassured by the comments of my noble friend Lady Thomas that, as clauses of this nature go, this one is limited and consequential. Indeed, it has a sunset clause and I also welcome the fact that this was noted by my noble friend Lord Tyler.
My noble friend Lord Horam raised the Electoral Commission’s remit, which is being amended by Clause 38. The Government believe it is appropriate to emphasise the importance of the commission’s regulatory role and to remove any potential understanding of its responsibilities. Clause 38 requires the commission to,
“take all reasonable steps to secure”,
campaigners’ compliance with campaigning rules. The Bill further provides for transparency of the commission’s work by introducing a new requirement for it to set out in its annual report what steps it has taken to secure compliance with the relevant provisions of PPERA. By requiring an account of its activities, the Government are seeking to make clear that the commission’s work is vital and that its regulatory approach is being empowered by the Bill.
The point was made by my noble friend Lord Horam, and I have heard it mooted in other quarters, too, that every small, malicious or vexatious complaint or query would have to be investigated. We do not agree, as the provision in Clause 38 imposing a duty on the Commission to investigate complaints does not mean that the commission would have to investigate complaints that it knows to be unfounded, malicious or vexatious. However, I believe that any change to the Electoral Commission’s remit could and should form part of the review of Part VI of PPERA, to which your Lordships have already agreed and which was the subject of further discussion earlier today.
In relation to the Electoral Commission, perhaps I might also reassure the noble Baroness, Lady Hayter, of what I said in moving this amendment. We agree that it is important to consult the Electoral Commission before any use of the powers in Amendment 24. I assure the House that that is indeed what we would do before making an order under this power. My noble friend Lord Horam suggested that the power in this amendment might be used with regard to any changes in the Electoral Commission’s remit. In disappointing him, perhaps I might reassure the rest of your Lordships that we think it unlikely that any changes to the commission’s remit could be considered as consequential provisions under this power, and therefore would not be within its scope. However, it would be appropriate if the review we discussed were to look at the remit of the Electoral Commission.
Finally, I take this opportunity on this last amendment to say thanks to many people but particularly to your Lordships’ House for the scrutiny which the Bill has had here. I can say without doubt that the Bill returns to the House of Commons much improved, and in doing so we have shown evidence of the value and merit of the revising role that this House undertakes, which it does with great seriousness.
I acknowledge with thanks the kind words that have been said about my noble friend Lord Wallace of Saltaire and me. In turn, I thank the noble and right reverend Lord, Lord Harries of Pentregarth, and the noble Baroness, Lady Mallalieu, for their excellent work on the Commission on Civil Society and Democratic Engagement. They have made a valuable contribution to the work that we have done in this House. Along with them and other members of the commission, I thank the many organisations which have engaged with us and them: third-parties and campaigning groups, charities and non-charities, all of which have made an important contribution. We have not necessarily always agreed, but they have contributed to making the Bill better.
I also thank those who have contributed in other ways through amendments and speeches: the noble and learned Lords, Lord Morris of Aberavon and Lord Hardie, my noble friends Lord Hodgson, Lord Horam, Lord Tyler and Lord Cormack and the noble Baroness, Lady Hayter, as well as the noble Baroness, Lady Royall, and the noble Lord, Lord Stevenson, who have at times contributed to our debates. Although there are many people in your Lordships’ House who have had experience as Members of Parliament, the noble Lord, Lord Martin of Springburn, brought a welcome reminder in his contributions that these are practical provisions which affect people who actually fight elections.
I also thank my noble friends on the ministerial Bench, Lord Wallace, Lord Gardiner of Kimball and Lord Younger of Leckie. I also acknowledge the tribute paid by the noble Baroness, Lady Hayter, to the officials—some in the Box and some not. On their behalf—because, obviously, they cannot speak—I express appreciation of that and add mine. They have worked with considerable equanimity and good humour. At least one of them attended almost every meeting which we have had with groups and they have assisted my colleagues on the ministerial team greatly. I certainly very much value the work that they have done and the very long hours, including over Christmas and New Year—one sometimes noticed the times and dates when e-mails were sent. I express appreciation for that.
Having said that, I very much hope that your Lordships will agree to the amendment.
My Lords, before the noble and learned Lord sits down, I gave a range of thanks before and I shall not repeat them, but there is one group of people who have not been mentioned and thanked. For a person who is not a very experienced parliamentarian, such as me, those people been particularly helpful. They are the staff of the Public Bill Office. They have been very helpful in guiding me on what might be allowable and possible. I express my thanks on behalf of others to them.
Amendment 24 agreed.
Schedule 3: Controlled expenditure: qualifying expenses
25: Schedule 3, page 59, line 1, after first “of” insert “, or in consequence of,”
Amendment 25 agreed.
Amendment 26 not moved.
Bill passed and returned to the Commons with amendments.
Local Audit and Accountability Bill [HL]
Motion on Amendments 1 to 14
That this House do agree with the Commons in their Amendments 1 to 14.
1: Clause 4, Page 3, line 22, after “Act” insert “and provision made under it”
2: Clause 4, Page 3, line 23, leave out paragraph (b) and insert—
“(b) by an auditor (a “local auditor”) appointed in accordance with this
Act or provision made under it.”
3: Clause 4, Page 3, line 24, leave out subsection (2)
4: Clause 5, Page 4, line 6, at end insert—
“(2A) Subsection (2) applies to a provision of or made under this Act even if it makes specific provision about a smaller authority to which the regulations apply.”
5: Clause 5, Page 4, line 9, leave out “an” and insert “a local”
6: Clause 5, Page 4, line 10, at end insert—
“(aa) make provision about the persons that may be specified by the Secretary of State;”
7: Clause 5, Page 4, line 18, leave out paragraph (d) and insert—
“(d) confer functions on a specified person, including in relation to—
(i) the appointment of local auditors under the regulations,
(ii)the activities of such auditors, and
(iii) the resignation or removal from office of such auditors;”
8: Clause 5, Page 4, line 21, leave out from “consult” to end of line 23 and insert “such persons as are specified in the regulations before exercising specified functions.”
9: Clause 5, Page 4, line 23, at end insert—
“(f) make provision for the appointment of a local auditor in relation to the accounts of a smaller authority to which arrangements within paragraph (a) apply where the specified person does not make an appointment under the regulations (and in particular for such an appointment to be made by the authority or the Secretary of State).”
10: Clause 5, Page 4, line 28, leave out paragraphs (b) and (c) and insert—
“(b) make provision about the procedures to be followed in relation to opting into or out of those arrangements;
(c) impose duties on smaller authorities to which those arrangements apply, including duties as to—
(i) the payment of fees to a specified person, and
(ii) the provision of information to a specified person;
(d) make provision for the making of payments, in specified circumstances and by the smaller authorities to which those arrangements apply, to a fund of a specified kind for the purposes of meeting local auditors’ costs of a specified kind.
(4A) Provision made by regulations under subsection (1) by virtue of subsection
(4)(c)(i) may, in particular—
(a) provide for fees to be paid in accordance with a scale or scales of fees determined by a specified person, and
(b) provide for the payment in specified circumstances of a larger or smaller fee than is set out in the appropriate scale.”
11: Clause 5, Page 4, line 35, leave out “an” and insert “a local”
12: Clause 5, Page 4, line 37, leave out “audit of such accounts” and insert “functions of a local auditor in relation to the accounts of a smaller authority”
13: Clause 7, Page 5, line 29, leave out “an auditor (a “local auditor”)” and insert “a local auditor”
14: Clause 8, Page 6, line 26, at end insert—
“(ba) specifies the period for which the local auditor has been appointed,”
My Lords, I beg to move that this House do agree with the Commons in their Amendments 1 to 14 en bloc. I shall speak also to the other amendments in this group, which amend the provisions for the appointment of local auditors.
Although I see that the Bill is not attracting a great deal of attention this afternoon, it is worth saying briefly that it increases local accountability and transparency, and helps local people to hold councils and local bodies to account for their spending decisions. The Bill is the final step in a programme of reforms to local audit that will result in an estimated £1.2 billion of savings over 10 years.
Before I go on to explain the amendments in this group, I pay tribute to my predecessor and noble friend Lady Hanham, who, as noble Lords will know, was responsible for taking this Bill through your Lordships’ House last year. All credit should go to my noble friend for amendments that the Government have accepted or are making to the Bill in response to debates in your Lordships’ House. I know that other noble Lords would want to join me in acknowledging her work on the Bill. I only regret that she is not in her place today. Indeed, because of the technical nature of the Bill, I perhaps regret that she is not at the Dispatch Box, but I will do my best.
Commons Amendments 1 to 13, 17, 31 and 33 would enable the development of sector-led collective procurement arrangements. They would allow the sector to come together and, if it wishes, to establish a body to procure auditors on behalf of local public bodies that choose to participate. These amendments fulfil a commitment made by the Government during Report in the Lords and reflect opposition amendments proposed both here and in the other place. The Government recognise the potential benefits of local authorities coming together jointly to procure their auditor as a means of achieving efficiencies and economies of scale and keeping audit fees low.
The Bill already allows two or more authorities jointly to procure their auditor. However, following calls from the sector—the Local Government Association in particular—and noble Lords, these amendments go further to allow for large-scale collective procurement led by a separate sector-led body.
As the Government have previously stated, any collective procurement arrangements established under these regulations will be voluntary. Local authorities will be able to choose to participate or to make their own appointment locally.
Commons Amendment 17 inserts into the Bill a new clause that will allow the sector to establish collective procurement arrangements. Under the new clause, the Government will, by regulations, make provision for certain authorities to have their auditor appointed by an “appointing person” specified by the Secretary of State. This will allow the Secretary of State to designate a sector-led body as an appointing person, and give them the necessary powers and duties to act as a collective procurement body. From now on, I will refer to the appointing person simply as the sector-led body.
Regulations will set out the process by which authorities choose to participate in sector-led arrangements, the process for specifying a sector-led body, and the powers, functions and duties of such a body. This would include, for example, a power to levy fees on opted-in authorities, and a corresponding duty on the body to consult before setting those fees.
Regulations under the new clause will also be able to modify other parts of the Act as they apply to authorities that have opted into the collective procurement arrangements. We intend to use this power to ensure that, where necessary, other provisions reflect the different appointment process for these authorities. For example, authorities that opt in and do not make their own appointment will not need to establish an independent auditor panel.
Commons Amendment 31 provides that regulations made under this new clause will be subject to the affirmative procedure. The Government also intend to consult publicly on draft regulations before they are made.
Commons Amendments 1 to 3, 13 and 33 would make minor changes to the definition of a local auditor in the Bill. These minor amendments are necessary in the light of the wider amendment to enable sector-led collective procurement. They reflect the fact that an authority could in future have their auditor appointed by a sector-led body, rather than make an appointment itself.
Commons Amendments 4 to 12 would make a number of minor changes to the existing provisions in the Bill that already allow for sector-led collective procurement for smaller authorities. They ensure consistency with the new clause introduced by Amendment 17, and clarify the Government’s powers to make regulations in relation to such arrangements.
Commons Amendment 14 will ensure that the term of an auditor’s appointment is confirmed publicly when the appointment is made. It will support greater transparency, and ensure that the public and audit firms know when the existing audit contract for a local body is due to end. The amendment reflects previous discussions on this matter both here and in the other place. Having considered the case for this further, the Government accept that it would be useful to put the matter beyond doubt through this amendment. The noble Lord, Lord McKenzie, proposed a similar amendment in Committee and will, I hope, therefore welcome this amendment today.
Amendment 46 is a minor amendment that would clarify that existing legislative requirements will continue to apply to audit committees of health service bodies where they act as the independent auditor panel. This will ensure that the operation of legislation governing health body audit committees is not unintentionally affected by this Bill.
There has been strong support for a collective approach to auditor procurement and appointment from all sides of the House during the passage of the Bill, and I hope these amendments will be welcomed.
My Lords, I begin too by thanking and joining the Minister in her tribute to her predecessor, the noble Baroness, Lady Hanham. I think we would agree, on all sides of the House, that she was always willing to listen—not always to agree, and indeed sometimes she might have agreed but might not have been able to say so. Certainly she would always listen, and if a reasonable case was made she would do her best to see that, so I thank her for that.
I wish the Minister every success, having picked up the baton. She commented that there was not huge interest in this Bill. She might not be aware that perhaps that was in part because, at the start of this Bill, the Secretary of State was reported to have said of this Bill, “It is not as interesting as it sounds”. Those of us who have worked on the Bill tirelessly through the summer would not necessarily echo the reported comments of the Secretary of the State.
Often—not always—with debates on local government legislation, we genuinely try to improve the legislation, whether we like it or not, to make it more workable. This is a very good example of how that success has been achieved. I reminded myself by looking back to our Second Reading debate in this House back in the summer. Indeed, the issue of joint procurement was raised at that stage. It received, I think it is fair to say, a sympathetic response, and here we come to the last stage of the Bill, when we are actually getting what we on all sides of the House were seeking.
This is a very useful and important measure. It is voluntary. Local authorities are given the opportunity to opt in to a shared arrangement. That was what we were seeking. It is not mandatory. They are not required, but they are able—exactly as we want—to choose what is best for their particular circumstances, so I thank the Minister. I welcome these amendments and I feel confident that they will have a general welcome on all sides of the House.
My Lords, let me welcome the Minister, the noble Baroness, Lady Stowell, to her first, and probably last, foray into the delights of the Bill. I am sure, deep down, she regrets not having had the opportunity to be engaged in our earlier detailed debates.
Perhaps, before a more detailed comment on this group of Commons amendments, I should acknowledge that much of what is before us this afternoon springs from matters that were pressed on the Government by noble Lords—Lib Dems, as well as ourselves and others. Like others, we pay tribute to the noble Baroness, Lady Hanham, for the way in which she was receptive to these matters and to the Government for fulfilling the commitments made by that Minister.
These amendments also bear the hallmark of the diligence of my honourable friend Andy Sawford in another place. A key amendment in this group is Amendment 17, which as the Minister has explained gives the Secretary of State the power to introduce regulations for the development of a sector-led approach to collective procurement. Amendment 31 properly requires the regulations to follow the affirmative procedure.
The retention of a collective procurement capability was one of the major issues that we debated. Of course, the detail of what might be forthcoming will have to await the regulations. It was pressed, among others, by the LGA and the National Association of Local Councils. This impetus was driven by the significant savings that the Audit Commission had achieved in its outsourcing of audit contracts. Of course, the contracts in question run to 2017 and can be extended. I do not know whether the Minister can confirm, under these proposed arrangements, who will make the decision about the extension of those contracts. Any different arrangements will happen some time in the future.
It is understood that the Government’s position is that they will not themselves use these regulations to set up another entity, but will respond to any sector-led approach that might arise. Discussions have already taken place with the LGA.
We are pleased to support these amendments because they keep alive the prospect of further collective procurement of audit services in the future. Clearly, the appetite to engage in collective procurement will be influenced by the balance of power in the market in the future—how competitive the audit market actually is and how many firms will participate, as well as how local authorities, particularly smaller ones, engage with what can be a sophisticated process.
There are other matters which neither this nor any other government arrangement addresses, covering how the existing outsourced audit contracts are to be maintained after the demise of the Audit Commission, the future of the value-for-money profiles and the Audit Commission’s current certification obligations. We have still not had satisfactory answers after pressing these questions throughout the various stages of the Bill. Perhaps the Minister can help us further today.
We accept that Amendments 1, 2, 3, and 13 make minor necessary changes consequent on Amendment 17. In doing so, they obviate our concerns on the original drafting of Clause 4(1)(b). We understand that Amendments 4 to 12 make minor changes to the provisions for the modified arrangements already provided for in the Bill for smaller authorities.
Other than consistency of drafting with Amendment 17, it is unclear whether Amendment 6 is in any way intended to change or narrow who might be appointed auditors of smaller authorities. Perhaps the Minister can clarify that.
Amendment 7 updates the function that might be conferred on a person under the smaller authorities’ provisions, but in doing so deletes any reference to the power to specify fees or a scale of fees. Can the Minister please confirm that such functions are accepted as included within the functions set out in Amendment 7, especially as Amendment 8 does not specifically refer to consulting on the scale of fees?
Amendment 14, requiring the term of an auditor’s appointment to be published together with other details, is a matter that we pressed in Committee and my honourable friend Andy Sawford argued convincingly in another place. We are grateful to the Government for their acceptance of this.
All in all, this group of amendments is generally to be welcomed. We are pleased to support them.
My Lords, I am grateful to my noble friend Lord Tope and to the noble Lord, Lord McKenzie, for welcoming the amendments that we are currently discussing. I certainly agree with my noble friend Lord Tope that while the matters that come out of the DCLG might not always attract widespread interest, they are always important. I am glad to be responsible for this late stage of this piece of legislation.
The noble Lord, Lord McKenzie, asked some specific points which I am happy to respond to. On his question on whether Amendment 6 changes or narrows who might be specified as concerns the appointment of auditors of smaller authorities, I can be clear that it is not the Government’s intention to do so. We do not intend to use this power to make any further requirements which would have that effect, or under the new Clause 17 to principal authorities.
The noble Lord also asked whether it could be confirmed that functions of the auditor appointment, such as its powers to specify fees or scale of fees, could be included in Amendment 7. I reassure the noble Lord that the amendments to Clause 5 retain provision for the specified person to set a scale or scales of fees. Of the original drafting of provisions in Clause 5 relating to the setting of fees by the person specified by the Secretary of State to appoint auditors to smaller authorities, Clause 5(3)(d) is deleted by Amendment 7. These provisions are replaced by those in Amendment 10. The new provisions unpack the arrangements relating to fees to clarify that the regulations will impose duties on authorities which are opted into the specified persons’ regime to pay fees in accordance with a scale or scales of fees determined by the specified person.
More generally, on the questions of the noble Lord, Lord McKenzie, about audit contracts and transitional arrangements, I reiterate the importance that the Government place on ensuring that the Audit Commission’s existing audit contracts continue to be well managed following its closure. These contracts have a combined annual value of £85 million and will continue to run until 2017, at which point we intend to introduce local or sector-led appointment of auditors. Noble Lords will be aware, however, that the contacts include provision to allow them to be extended for a further three years to 2020. While it remains our intention to introduce local appointment from 2017, no formal decision is needed on extension until closer to the scheduled end of the contracts. At that point, this will be a decision for the Government to take in conjunction with the interim body managing the contracts.
Given the length of the existing contracts, we need to make sure that the organisation that manages these contracts in the period following closure of the commission and introduction of local appointment is capable of putting in place resilient governance and management arrangements. In consultation with the Audit Commission and other key government departments and delivery partners, my officials have agreed a set of criteria against which all options should be assessed. They are now working with counterparts in interested organisations and have shared a set of requirements, roles and responsibilities alongside an invitation to formalise a proposal to the department to perform the role of designated transitional body. Subject to further work with each of the organisations, proposals will then be evaluated against the agreed criteria and we plan on making a decision by the spring.
I should add some remarks on another topic which I was not sure whether the noble Lord had raised in his question to me; if he did not I should perhaps have covered it in my opening remarks. Grant certification is a further critical issue raised in both Houses during the passage of the Bill. When the commission closes, the few remaining grants requiring certification will be certified through arrangements agreed between grant-paying bodies, the recipients and their auditors. There is one exception to these arrangements: the Audit Commission will continue to make arrangements to certify the housing benefit subsidy scheme for the 2014-15 return, due to its complexity and size, before the move to universal credit. However, work to complete this and oversee auditors’ work in autumn 2015 will then need to be undertaken by the designated transitional body. We are therefore drawing on the commission’s expertise to ensure that appropriate measures are put in place to support this work and also that Section 28 of the Audit Commission Act is saved so the designated transitional body can take on this function.
Finally, I will talk briefly about the future of the commission’s value-for-money profiles. The LGA has expressed an interest in taking on this tool and we are in discussions with it, the Audit Commission and others, including the National Audit Office. We are therefore currently considering the future options for the profiles with these partners with the aim of making a decision by the spring.
I hope that by providing this additional information I am able to reassure noble Lords that we are working towards a resolution on each of these points and intend to reach a decision on outstanding transitional issues well in advance of the Audit Commission’s closure. I also take this opportunity to thank the Audit Commission for its assistance and support in advancing these matters with my officials and other interested parties. We have been very grateful for its input.
With all that additional information, I hope that I have been able to answer any outstanding questions from noble Lords.
Motion on Amendments 1 to 14 agreed.
Motion on Amendments 15 and 16
That this House do agree with the Commons in their Amendments 15 and 16.
15: Clause 11, Page 8, line 41, at end insert—
“(8) The auditor panel of a parish meeting may only exercise the function in subsection (2) in relation to the chairman of the parish meeting or the proper officer of the district council within whose area the parish lies.”
16: Clause 15, Page 11, line 21, at end insert—
“(7) A decision to enter into a liability limitation agreement between a local auditor and a parish meeting must be taken by the parish meeting itself (and not by its chairman on behalf of the parish meeting).”
My Lords, I shall speak also to the other amendments in this group. These amendments clarify how the audit-related functions in the Bill will sit in the case of a parish meeting where there is no separate parish council. Where new functions are created as a consequence of the local appointment of auditors, the amendments clarify where those functions will sit for a parish meeting. The amendments are relatively minor in nature.
Unlike a parish council, a parish meeting has only one elected member: its chairman. However, all local government electors in the parish are entitled to vote at a parish meeting and are therefore, arguably, members. Where there is no separate parish council, the chairman and the proper officer of the district are together known as the parish trustees, and the parish trustees are the body corporate of the parish meeting.
The principle we have used is that, where a function is of an administrative nature—which is the case in the majority of functions—it would be exercised by the chairman on behalf of the parish meeting. For example, the chairman will be responsible for ensuring that a local government elector may inspect the statement of accounts. This rule is set out in Amendment 36. Where a function is of a deliberative or decision-making nature, it would sit with the parish meeting itself rather than be delegated to the chairman. For example, the decision to appoint an auditor, and the consideration of a report in the public interest, will sit with the parish meeting itself. These exceptions to the general rule are set out in Amendments 16, 44, 45, 48, 53, 68 and 71.
Amendments 15, 19 and 20 would ensure that certain duties that would otherwise be placed on members of the parish meeting are restricted to the chairman and the proper officer of the district and are not placed on all local government electors. These functions include supplying information and attending meetings with the auditor. This approach is consistent with the treatment of parish councils in the Bill, where the functions are placed only on council members and do not extend to local government electors.
Amendments 62 and 69 would remove disproportionately onerous and costly burdens from the chairman of a parish meeting. He will not be required to supply a copy of a report in the public interest to all local government electors. Local government electors will be able to access a report in the public interest or a written recommendation under provisions made in Clause 24. Amendment 34 would insert a definition of “parish meeting” into the Bill and Amendments 42 and 55 would reflect that definition.
Finally, Amendments 60, 63 and 66 are tidying amendments. These are redundant in the light of Section 231 of the Local Government Act 1972, which provides that where a document is to be served on a parish meeting, it should be addressed to the chairman.
I should also make clear to noble Lords that we have discussed these amendments with the smaller authority sector, and I confirm that the National Association of Local Councils is content with them. On that basis, I beg to move.
My Lords, I welcome these amendments. I apologise to the Minister for not being in my place for the previous group of amendments; I had intended to be in the Chamber when she spoke but unfortunately had a guest with me.
I can confirm that this group of amendments seems eminently sensible, particularly as they deal with the very smallest of the parish family, if I can call it that. I welcome the pragmatic approach that has been put forward here.
Perhaps I may say also that, in general, I am much indebted to the noble Baroness, and to her predecessor, for the way in which the amendments were taken from this House after all the consideration that we had, and other things were added in the other place, which on the whole have considerably enriched the Bill. I am extremely grateful for that, and the parish and town council movement—I am proud to be the president of the national association—warmly welcomes the general direction of travel. I therefore welcome this group of amendments, in particular.
My Lords, as we have heard, this group of amendments addresses the application of the Bill to a parish meeting where there is no separate parish council. A parish meeting has only one elected member—its chairman—although it is suggested that all local government electors in the parish who are entitled to vote are members. There are more than 11,000 parish meetings for which the Audit Commission currently appoints auditors.
We accept the necessity of clarifying how various functions created by the Bill should be applied to parish meetings, and the principle adopted—that administrative functions should be exercised by the chairman on behalf of the parish meeting, and deliberative or decision-making functions should be exercised by the parish meeting itself—has our support. We note that NALC supports the amendments, and we do, too.
I am grateful both to the noble Lord, Lord McKenzie, and to the noble Earl, Lord Lytton, for welcoming the amendments. I shall not repeat what I said at the beginning of our consideration of the amendments, but will simply say to the noble Earl that he has echoed my tribute to my noble friend and predecessor Lady Hanham, and I wholly concur with his comments.
Motion on Amendments 15 and 16 agreed.
Motion on Amendment 17
That this House do agree with the Commons in their Amendment 17.
17: After Clause 16, insert the following new Clause—
“Appointment of auditor by specified person
(1) The Secretary of State may by regulations make provision for and in connection with the appointment, by a person (an “appointing person”) specified by the Secretary of State, of a local auditor to audit the accounts of a relevant authority to which the regulations apply.
(2) Regulations under subsection (1) may, in particular—
(a) make provision about the persons that may be specified as an appointing person;
(b) make provision about the procedure for specifying a person and for an appointing person’s specification to come to an end in prescribed circumstances;
(c) make provision about the consequences of an appointing person’s specification coming to an end, including—
(i) for the exercise of functions by the Secretary of State, and
(ii) for the transfer of the person’s rights and liabilities arising by virtue of the regulations to the Secretary of State or another appointing person;
(d) confer functions on an appointing person, including in relation to—
(i) the appointment of local auditors under the regulations,
(ii) the activities of such auditors, and
(iii) the resignation or removal from office of such auditors;
(e) require an appointing person to consult prescribed persons before exercising prescribed functions.
(3) Regulations under subsection (1) may, in particular—
(a) make provision about the relevant authorities to which the arrangements under the regulations apply, including provision for them to apply to an authority that has opted into them or has not opted out of them;
(b) make provision about the procedures to be followed in relation to opting into or out of those arrangements;
(c) impose duties on relevant authorities to which those arrangements apply, including duties as to—
(i) the payment of fees to the appointing person in respect of an audit carried out by a local auditor appointed by that person, and
(ii) the provision of information to the appointing person.
(4) Provision made by regulations under subsection (1) by virtue of subsection (3)(c)(i) may, in particular—
(a) provide for fees to be paid in accordance with a scale or scales of fees specified by the appointing person, and
(b) provide for the payment in prescribed circumstances of a larger or smaller fee than is specified by the appropriate scale.
(5) Regulations under subsection (1) may, in particular, make provision about the functions of a local auditor appointed by an appointing person.
(6) Regulations under subsection (1) may, in particular, make provision for the appointment of a local auditor of the accounts of a relevant authority to which arrangements made by the regulations apply where the appointing person does not make an appointment under the regulations.
(7) Provision made by regulations under subsection (1) by virtue of subsection (6) may, in particular, provide for the appointment to be made by the authority or the Secretary of State.
(8) Regulations under subsection (1) may, in particular provide—
(a) for any provision of, or made under, Part 3 of this Act not to apply, or to apply with modifications, in relation to a relevant authority to which regulations under that subsection apply;
(b) for any other provision of, or made under, this Act not to apply, or to apply with modifications, in consequence of provision made by regulations under that subsection.
(9) Subsection (8) applies to a provision of or made under this Act even if it makes specific provision about a relevant authority to which the regulations apply.
(10) In this section “prescribed” means prescribed by regulations under subsection (1).”
Motion on Amendment 17 agreed.
Motion on Amendment 18
That this House do agree with the Commons in their Amendment 18.
18: Clause 20, Page 14, line 18, leave out from “must” to end of line 23 and insert—
“(a) enter on the accounts a certificate that the auditor has completed the audit in accordance with this Act, and
(b) make a report in accordance with subsection (5).
(5) A report under subsection (4)(b)—
(a) must contain the auditor’s opinion on the accounts, including on the matters in subsection (1) or, as the case may be, subsection (3), but
(b) must not contain the auditor’s opinion on the matter in subsection (1)(c) or (3)(c) if the auditor is satisfied as to that matter.”
My Lords, the amendments in this group make a number of clarifications to Part 5 of the Bill, which sets out the duties of the auditor. Amendment 18 requires the auditors of health service bodies to provide a report on all the matters on which they have a duty to satisfy themselves—other than value for money, where they will have to include their opinion in the report only if they are not satisfied on the matter.
As the Bill stands, the auditor is required to provide a certificate to confirm that the audit has been completed. In practice, auditors of health service bodies already report on all the matters on which they are required to satisfy themselves. The amendment would make this an explicit requirement, in order to provide assurance to the accounting officer and to Parliament that budgets have been used for the purposes intended by Parliament.
Commons Amendments 21 to 23 would clarify the process and timescales for a local elector to make an appeal, following an auditor’s decision not to make an application to the court that an item of account is unlawful. The amendments reflect the current process and provide a local elector with six weeks to require the auditor to provide a statement of reasons for their decision not to apply to the court, and then a further 21 days to appeal the auditor’s decision to the court.
Commons Amendments 24, 25 and 72 would enable local auditors to recover costs for their time in undertaking their main additional statutory audit duties under this Bill, where that work does not result in any formal action being taken. I will explain what the duties are in a moment.
We expect that contracts between authorities and auditors will set out how auditors’ costs are to be recovered. The Bill currently gives auditors an explicit right to recover reasonable costs from the audited body for their time in exercising some of their statutory duties—for example, when undertaking investigatory work that might lead to a public interest report but where, ultimately, one is not issued.
These further amendments enable auditors to recover reasonable costs for their time in investigating—but ultimately deciding not to take action—in relation to three of their statutory functions: first, whether to make an application to the court that an item of account is unlawful; secondly, whether to issue an advisory notice; and, thirdly, whether to apply for judicial review of an authority’s decision. This would ensure consistency in treatment of cost recovery for these functions, enabling local auditors to recover reasonable costs incurred in investigating issues that could result in them exercising their main statutory functions under the Bill.
Commons Amendments 59 and 61 would ensure that the Greater London Authority continues to be supplied with a copy of any public interest report or written recommendation made by the auditor of any of the authority’s functional bodies, following a recently proposed change in the way functional bodies are treated within the Greater London Authority’s group accounts. This change means that functional bodies may not, in future, be considered “connected entities” of the GLA under the Act.
The Bill requires that a copy of a public interest report or written recommendation on a body that is a “connected entity” of a relevant authority should be sent to that authority. However, the proposed change not to include functional bodies within the GLA’s group accounts would mean that they no longer met the definition of a connected entity and so would not fall under this requirement. These amendments therefore ensure that a similar requirement continues to apply to the GLA and its functional bodies, to ensure adequate transparency and scrutiny where such a report or recommendation is made. This is necessary given the close and unique relationship between the GLA and its functional bodies.
Further to this, Commons Amendments 64, 65 and 67 make minor drafting changes needed as a consequence of the Mayor’s Office for Policing and Crime ceasing to be a connected entity of the GLA. They do not change the policy position, but simply correct the drafting of the existing requirement that reports and recommendations on the Met Commissioner are considered by the Mayor’s Office for Policing and Crime.
Commons Amendments 70 and 73 are minor amendments, which apply the definition of “relevant authority concerned” to all the provisions relating to advisory notices, rather than just to paragraph 3 of Schedule 8. The “relevant authority concerned” is defined as the relevant authority to which, or to any officer of which, an advisory notice is addressed. After that comprehensive explanation of this group of amendments, I hope that noble Lords will feel able to accept them. I beg to move.
My Lords, I shall speak specifically to Amendment 18. I refer to the Explanatory Notes on the Commons amendments that have been published, and in particular to that on Amendment 18 in relation to health service bodies, which says that,
“an auditor will have to provide an opinion on value for money only if the auditor is not satisfied in respect of that matter”.
I want to raise the issue of health and well-being boards, which are shared across the health service and local authorities, in terms of identifying how they can work more closely together and how best value can be achieved.
My question is: who audits the health and well-being boards? They have a clear role in driving improved health outcomes. I realise that different bodies are spending money, and are therefore audited for that role, but there is a broader question about how those boards steer policy and make good decisions that reflect acknowledged best practice, and achievements in other areas by other health and well-being boards. I would like to think that an auditor has a clear role in identifying whether value for money is being achieved by individual boards—I suspect that this will become important over the next two to three years, as the success of those boards is assessed—and whether, indeed, the health service investment and the sum of money available to local authorities are adequate for purpose.
To this end, I suggest to my noble friend the Minister that one of the National Audit Office’s thematic studies that are promised as part of the Bill could look at the joining point between local authorities and the health service, specifically in relation to adult social care but more generally in terms of improving health, preventing a decline in health and to reduce inequalities in health outcomes. I think that there is a role for an auditor in that area. An auditor would have to provide only an opinion on value for money if he or she is not satisfied in respect of a specific matter. I think that the issue goes a little further than this. I would like to think that some strongly proactive work would be undertaken by the National Audit Office and auditors who are looking at the role of health service bodies and local authorities’ work in the health field.
My Lords, I thank the Minister for her detailed explanation of the amendments in this group. Our discussion on them has been widened by a very pertinent inquiry from the noble Lord, Lord Shipley. We have generally seen these amendments as tidying up and consequential measures. We have issues around: the duty of auditors of health bodies to prepare a report; the provision of sequencing of electors’ rights concerning unlawful items of accounts; the procedures for auditors to be able to recover costs when there is no formal action they can take; copies of recommendations or public interest reports of functional bodies of the GLA to be sent to the GLA; and the drafting changes arising from the fact that the Mayor’s Office for Policing and Crime will cease to be a connected entity of the GLA. We have gone through these measures and are content with them.
I am very grateful to the noble Lord, Lord McKenzie, for confirming that he is content with these amendments. As regards the query of my noble friend Lord Shipley about the health and well-being boards, the arrangements for reporting on the accounts and the value for money conclusion, I shall give him what I have and, if I need to, perhaps we can follow up the matter after the debate.
The Bill places auditors of both health and local government bodies under a duty to satisfy themselves that the body has made proper arrangements for securing economy, efficiency and effectiveness in its use of resources, which is known as the value for money conclusion. Unlike local government, the accounts of health bodies are consolidated within their sponsor Whitehall department resource account. Local authorities, on the other hand, are directly accountable to the local electorate in a way that health service bodies are not. Because of the different accountability arrangements for health service bodies, the Government consider it necessary to put the requirement to have opinions on the accounts in the Bill rather than in the code of audit practice, to provide assurance to the accounting officer and Parliament that budgets have been used for the purposes Parliament intended. We believe that it is unnecessary to do this for non-health service bodies because of the statutory power for local auditors to apply to the courts for a declaration that an item of account is unlawful. Furthermore, for non-health service bodies, we expect the code of audit practice will set out what auditors must report against this duty, as is currently the position under the code produced by the Audit Commission. Overall, we consider that this allows for greater flexibility in reporting for non-health service bodies, but for health bodies the different parliamentary accounting framework includes a strict requirement for regularity to be reported on.
I have just been reminded that the health and well-being boards are not included under the provisions of the Bill but I hope that what I have just read out has reassured the noble Lord and your Lordships’ House that value for money is very much part of the consideration of the auditors who will be looking at the health and local government bodies.
I have just been passed another note which I hope may be helpful because I am not sure how much of what I have already read out is entirely helpful to the noble Lord. The provisions in the Local Audit and Accountability Bill on value for money inspections do not cover health service bodies. I think we know that. The NAO’s existing powers in relation to value for money inspections are wider than those in the Bill, so the latter does not need to include provision on this in relation to health service bodies. I think that is the killer point that I have finally got to. On the basis of that additional information, I beg to move.
Motion on Amendment 18 agreed.
Motion on Amendments 19 to 25
That this House do agree with the Commons in their Amendments 19 to 25.
19: Clause 21, page 15, line 28, at end insert—
“(8A) A local auditor of the accounts of a parish meeting may only exercise the function in subsection (7), so far as it applies to a person who is or was a member or officer of a relevant authority, in relation to a person who is or was the chairman of the parish meeting or the proper officer of the district council within whose area the parish lies.”
20: Clause 22, page 16, line 14, at end insert—
“(4A) Subsection (3) does not apply in relation to a parish meeting unless the offence is alleged to have been committed by the chairman of the parish meeting or the proper officer of the district council within whose area the parish lies.”
21: Clause 27, page 19, line 6, leave out from “may” to end of line 7
22: Clause 27, page 19, line 8, after “(a)” insert “within the period of 6 weeks beginning with the day after that on which the person is notified of the decision,”
23: Clause 27, page 19, line 9, after “(b)” insert “within the period of 21 days beginning with the day after that on which the person receives those written reasons,”
24: Clause 27, page 19, line 16, at end insert—
“(5A) Subsection (5B) applies if a local auditor of the accounts of a relevant authority incurs costs in determining whether to make an application under this section in relation to the authority, but the application is not in fact made.
(5B) The local auditor may recover the reasonable costs so incurred from the relevant authority.”
25: Clause 30, page 20, line 9, at end insert—
“(5) Subsection (6) applies if a local auditor of the accounts of a relevant authority incurs costs in determining whether to make an application under this section in relation to the authority, but the application is not in fact made.
(6) The local auditor may recover the reasonable costs so incurred from the relevant authority.”
Motion on Amendments 19 to 25 agreed.
Motion on Amendment 26
That this House do agree with the Commons in their Amendment 26.
26: After Clause 38, insert the following new Clause—
“Access to local government meetings and documents
(1) The Secretary of State may by regulations make provision for and in connection with allowing persons—
(a) to film, photograph or make sound recordings of proceedings at a meeting of a body to which this section applies, or of a committee or sub-committee of such a body;
(b) to use other means for enabling persons not present at such a meeting to see or hear proceedings at the meeting, as it takes place or later;
(c) to report or provide commentary on the proceedings at such a meeting, orally or in writing, so that the report or commentary is available, as the meeting takes place or later, to persons not present at the meeting.
(2) Regulations under subsection (1) may in particular make provision—
(a) for allowing persons to make available to the public or a section of the public using any medium (including the internet) things produced as a result of activities within that subsection;
(b) about the facilities to be made available by bodies to which the regulations apply to enable persons to carry on such activities;
(c) about the steps to be taken by persons before carrying on such activities;
(d) about the circumstances in which persons may not carry on such activities, including for enabling a person specified in the regulations to prevent them from doing so in the circumstances specified in the regulations.
(3) The Secretary of State may by regulations make provision—
(a) for requiring written records to be kept of decisions that are of a kind specified in the regulations and are taken by an officer of a body to which this section applies,
(b) with respect to the information that is to be included in those written records (including information as to the reasons for any decision);
(c) for requiring any such written records, or any documents connected with the decisions to which they relate, to be supplied or made available to members of the body, to the public or to other persons;
(d) for the creation of offences in respect of any rights or requirements conferred or imposed by the regulations.
(4) The Secretary of State may by regulations provide that any of the following may or must be given or made available by electronic means—
(a) any notice which is required by the Public Bodies (Admission to Meetings) Act 1960, Part 5A of the Local Government Act 1972 (access to meetings and documents of certain authorities etc) or regulations under this section to be given by a body to which this section applies;
(b) any document relating to such a body which is required by that Part or those regulations to be open to inspection.
(5) Regulations under this section may, in particular, amend or repeal any provision of—
(a) the Public Bodies (Admission to Meetings) Act 1960,
(b) Part 5A or section 228 (inspection of documents) of the Local Government Act 1972, or
(c) section 58 of the Greater London Authority Act 1999 (application of Part 5A to the London Assembly).
(6) Subject to subsections (7) and (8), this section applies to—
(a) a district council,
(b) a county council in England,
(c) a London borough council,
(d) the London Assembly,
(e) the Common Council of the City of London in its capacity as a local authority or police authority,
(f) the London Fire and Emergency Planning Authority,
(g) Transport for London,
(h) a joint authority established under Part 4 of the Local Government Act 1985,
(i) an economic prosperity board,
(j) a combined authority,
(k) a fire and rescue authority in England constituted by a scheme under section 2 of the Fire and Rescue Services Act 2004 or a scheme to which section 4 of that Act applies,
(l) a National Park Authority for a National Park in England, (m) the Broads Authority,
(n) the Council of the Isles of Scilly,
(o) a parish council, and
(p) a parish meeting.
(7) In its application to subsection (1), subsection (6) is to be read as if it included a reference to an executive of an authority within paragraph (a), (b) or (c) of that subsection.
(8) In its application to subsection (3), subsection (6) is to be read as if the reference in paragraph (d) to the London Assembly were to the Greater London Authority.
(9) References in this section to a committee or sub-committee of a body include any committee or sub-committee of that body to which Part 5A of the Local Government Act 1972 applies or is treated as applying.
(10) References in this section to Part 5A of the Local Government Act 1972 include a reference to that Part as it applies to the London Assembly by virtue of section 58 of the Greater London Authority Act 1999.
(11) In paragraph 4(2) of Schedule 12 to the Local Government Act 1972 (notice of meeting of principal council), for “Three clear days” substitute “Five clear days”.”
My Lords, in moving the Motion on Amendment 26, I shall speak also to the other amendments in this group.
Noble Lords will be aware that these are new provisions. These amendments insert a new clause into the Bill that would give greater rights to report at local government meetings and to have access to documents. We believe that this is an important extension to reflect greater enthusiasm and appetite among the public not just for transparency but also to have an element of control over the information and the access that they enjoy which allows them to continue discussion and debate beyond being just observers at meetings.
Commons Amendment 26 gives the Secretary of State the power to make regulations that would allow members of the public to report proceedings at public meetings, allowing people to film, audio-record, tweet and blog at a meeting of a local government body. This will allow those who are unable to attend the meeting to follow the proceedings and, as I have just said, perhaps promote discussion about proceedings thereafter. It will also give the public access to documents of local government bodies. These documents may, for instance, include records of decisions taken by officers acting under delegated powers; the reasons for the decisions, details of any alternative options considered and rejected, and any other documents connected with the decisions to which they relate.
The regulations may set out possible conditions to be met before such activities can be carried out. Likewise, they may specify the circumstances where activities such as filming or audio recording might not be permitted. The Government intend to work with partners such as the Local Government Association and the National Association of Local Councils on the detail of the regulations. They will be subject to the affirmative procedure if there is provision in the regulations amending or repealing primary legislation; otherwise the regulations will be subject to the negative procedure.
Local people are currently enjoying more rights under the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 when they attend meetings of a council’s executive and access information relating to decisions made in those meetings. Unfortunately, these same people cannot enjoy the same rights when they attend the public meetings of full council, its committees, sub-committees and joint committees, parish and town councils and other local government bodies. Some councils have used this inconsistent approach to refuse the public access. We are aware of some recent examples of councils ejecting members of the public from meetings for filming or tweeting from those meetings. That is why we have decided to bring forward these amendments now.
Since the 2012 regulations came into force, we are not aware that they have caused any particular problem for local authorities, other than some needing to update their standing orders to reflect the change in access rights by the press and public. We do not believe that this greater access should create additional burdens. However, I am aware that some may be concerned about the possible disruption that filming in council meetings might cause. Therefore, we will consider possible steps that have to be taken by people attending the meeting for the purpose of reporting the proceedings so that activities such as filming or taking photographs might not disturb the good order and conduct of a meeting. As I say, we intend to work with partners to ensure that the regulations and any guidance address this.
We are in a digital age where technology has significantly evolved and we need to acknowledge that it will continue to advance swiftly. With this in mind, we must widely embrace the use of modern communication methods such as filming, tweeting and blogging at public meetings. On top of this, opening up these bodies would help the public to have a better understanding of their local decision-making process and, as I said, potentially encourage them to be more involved in local affairs. I beg to move.
My Lords, I expect we all welcome the intentions of the amendments: I certainly do. I must confess that my first response when I read about this was a little surprise that they were considered necessary. I am sure the vast majority of authorities of all persuasions are already doing this. It may well be that, in some cases, their standing orders have not been brought up to date, but I am sure that most are doing it very willingly. However, I then reflected on my early days as a councillor, quite a long time ago, when all council and committee meetings were open to the public, as required—if I remember rightly—by a Private Member’s Bill introduced by the then new and young honourable Member for Finchley, Mrs Thatcher. The one committee not open to the public was what was then called the planning committee; it would now probably be the development control committee. This was, arguably, the committee of greatest interest to members of the public but it was the one to which they were not allowed access.
Those days are, fortunately, long gone but it reminded me that we need to ensure we keep up to date with the times. I am sure all noble Lords welcome the good intentions of these amendments. The key will be in the drafting of the regulations. I am not sure why any local authority or council would wish to stop someone tweeting during a meeting or, if they did, how they could implement it without the most draconian measures. That is well and good, but the difficult part will be making regulations that require the greatest openness but do not allow the avoidable disruption of meetings.
I hesitate a little, because a fundamental part of our democracy is the right to be irritating and to annoy. I think the noble Lord, Lord Beecham, is suggesting that I am doing this at the moment. We all know from our local authority experience that there are some people whom everyone agrees are simply a nuisance. It will be quite tricky to balance the regulations to ensure that the person—it is usually an individual rather than a collection—has a right to be a nuisance and be irritating but does not disrupt the good order and procedure of the meeting. I imagine that the decision will be in the hands of whoever is chairing the meeting. They have the right now to have disruptive people ejected, as happens occasionally, and this will, no doubt, still be the case. However it will be quite difficult to draw the balance between allowing the maximum openness and transparency at meetings, which we would all endorse, with not allowing individuals —I stress, individuals—with a cause from unnecessarily and avoidably disrupting proceedings.
We look forward with interest to seeing the regulations. I am delighted that the Minister has made clear that there will be wide consultation with the local government associations, NALC and other bodies in the drawing up of these. We look forward to seeing the result.
My Lords, I relate to what the noble Lord, Lord Tope, has just said. I have a mental image of the small parish or town council, with its quite limited premises, taking on progressively more functions and finding itself in the centre of some awfully controversial measure. The premises might, quite literally, be crowded out by people with cameras or wanting to record: the sort of thing one sees on television outside the courts of justice when a person of fame—or infamy, as the case may be—has received a decision. The scrum that goes on out there is the sort of thing that slightly worries me, particularly, for the reasons given by the noble Lord, Lord Tope, with development control, which in many instances is highly contentious.
I will not ask the Minister for an answer at this juncture, but could she bear in mind that uniformity of regulations across the whole of local government might be difficult to achieve, for the reasons given by the noble Lord, Lord Tope? There is also a question of how open-ended this public right is. There will clearly be instances—I am sure we have all witnessed meetings of this sort—where it can be thoroughly disruptive and an impediment to the sober and conscientious consideration of matters on the agenda. Perhaps there must be some limitations. Like the noble Lord, Lord Tope, I look forward to seeing the draft regulations in due course. I appreciate what the Minister has said about the process for that: would she perhaps clarify the timescale for it? That would be very helpful, particularly for parish and town councils, a bigger proportion of which may be affected by this measure than principal authorities which, in many cases, already have generous facilities for public access and the recording of proceedings.
My Lords, I occasionally encounter some unfortunate being who has apparently had nothing better to do than watch me on Parliament TV. It is possible that others of your Lordships may have had similar encounters. Oddly enough, although Newcastle City Council—on which both I and the noble Lord, Lord Shipley, have served—has webcast its meetings for many years, nobody has ever claimed to have seen me on those broadcasts. Perhaps that says something about the medium not quite having conveyed the message thus far.
I join my honourable friends in the House of Commons in welcoming these changes. It is fair to say, and was said by the Minister in the debate on this provision in the Commons, that the Opposition Front Bench there were very supportive of the concept. It is welcome that these proposals come here and, as the Minister pointed out, that they include the potential for safeguards. I presume that these will, as she has implied, be negotiated, or at least discussed, with the Local Government Association so as to avoid conduct which might disrupt meetings and to provide clarity about what happens when, for legitimate reasons, the press and public may be excluded. Examples might be if there are matters of commercial confidentiality or confidential personal details to be discussed in certain areas. I might like to suggest, though it may not reach into regulations, that selfies might be prohibited, but that is a matter of taste rather than democracy.
It would also be helpful if, alongside any regulations, the Government gave some information, in guidelines or otherwise, about the risks that may be attendant on people filming, tweeting or otherwise relaying actual events. Although one hopes it would not happen, what is said in council may sometimes stray into the area of defamation and those relaying matters of that sort could find themselves in a difficult situation. Some guidance about the need to be careful would help those who might otherwise run into difficulties. It is not likely to arise in a large number of cases but it is conceivable it might happen. Broadcasting authorities and so on are very alert to that danger. In Parliament it is privilege but that does not apply to local authorities.
I also wonder, although it is not a matter for the Minister or the Department for Communities and Local Government, whether the principle embodied in these amendments, which will eventually be subject to guidelines, might not be extended to some other public bodies. For example, the noble Lord, Lord Shipley, referred to health and well-being boards. It is true that they are technically part of local authorities, but health is generally a matter that clearly engages the interest of a community. Many bodies such as clinical commissioning groups, health trusts and so on are open to the public. A similar regime might be useful there, and perhaps the noble Baroness can take back to ministerial colleagues the thought that this principle—after it has run for a period and people can see how it works—may usefully be extended.
I find some irony in the Government’s general position on this issue. They talk about democracy when, at the same time, they are not only imposing a council tax cap on local authorities which can be exceeded only if there is a referendum, they are also intending to impose a lower cap than would otherwise be the case because some authorities have levied just under the prescribed level for a referendum. The Government seem to be taking an absurd position. Indeed, at least part of the coalition appears increasingly to favour referendums over elections. In this House we will be debating at some length the proposals regarding European referendums. This process was started by Louis Napoleon in the 19th century and has since been extended to various other unsatisfactory regimes.
However, the current proposals are regarded as potentially helping to revive interest in the established local democratic process. That is necessary given—as many of us have remarked during the debates on the Bill—the almost total lack of coverage of local affairs not just by the printed press but by the media generally compared with what used to be the case. If that lack of coverage means that people are unable to read such coverage in their local paper or see it on the local broadcasting media then it would be useful if this information could be disseminated from meetings. I hope that people will take advantage of that opportunity as it can only be for the good of local democracy. We support the amendments.
I am grateful to the noble Lord for his and the Opposition’s support for these amendments. I am also grateful to have been reminded by my noble friend Lord Tope that I am following in the proud tradition of my late and noble friend Lady Thatcher in terms of increasing access to public meetings.
As my noble friend Lord Tope pointed out, many local authorities now provide the kind of access and opportunity to local people in the way that we are seeking to require through these measures. He is right, there is extensive use and availability in this area. However, some local authorities are not providing that kind of access. As we think that that is important and the precedent is there in other kinds of public meetings, it is only right to extend such provisions. For example, I am told that Tower Hamlets Council barred a 71 year- old resident from filming because it claimed a risk of reputational damage to the authority. Keighley Town Council blocked some residents from filming as it would have amounted to a breach of standing orders. Stamford Town Council placed a ban on journalists tweeting from meetings due to the risk that the journalists would not accurately portray the debate. So there are examples and evidence of inconsistency in approach and we want to address that.
Noble Lords raised important points about risks, and the measures necessary to mitigate those risks, to ensure that proper conduct is able to continue. I re-emphasise that we will carry out a process of consultation on these regulations and ensure that we take account of the points that have been made. We will not lay the regulations until we have completed that consultation. However, we are talking about a matter of months in terms of bringing those regulations forward. We do not want delay on this.
The noble Lord, Lord Beecham, specifically raised concerns about whether guidance will be issued on matters such as defamation in order that members of the public do not inadvertently put themselves at risk. Alongside the regulations, we intend to produce guidance to cover such matters. As the noble Lord will know, there is some precedent in this area because journalists are now allowed to “live tweet” from some public court proceedings.
The noble Lord specifically asked whether this provision may be extended to other public bodies such as health bodies. I will take his point away and raise it with colleagues. We believe that if a public meeting provides access to the public we should ensure that they have the ability to record it appropriately, in the way that I have described.
That leads me to another point that my noble friend Lord Tope and others mentioned regarding the ability to maintain sensitivity and confidentiality during public meetings. Councils and other government bodies will still be able to exclude the public from the part of a meeting in which confidential or exempt sensitive information will be disclosed. The definition of confidential and exempt information is already covered in legislation. There are legislative rules that must be followed when excluding the public from a meeting. For instance, a resolution may be passed to exclude the public from a meeting at which exempt information would be disclosed. Again, measures are already there to inform on how we propose to operate in this area.
I think that I have covered all the points that have been raised. I re-emphasise that we will bring forward regulations and ensure that we consult. I am very much aware of the kind of concerns that have been raised by noble Lords and will ensure that proper account is taken of these issues when the regulations are drafted.
Motion on Amendment 26 agreed.
Motion on Amendments 27 to 29
That this House do agree with the Commons in their Amendments 27 to 29.
27: Clause 39, page 26, line 30, at end insert—
“(13A) Subsections (14) to (16) apply (and subsections (18) to (20) do not apply) if, in accordance with section 46(2A), this section comes into force on the day on which this Act is passed.”
28: Clause 39, page 26, line 35, after “may” insert “, in particular,”
29: Clause 39, page 26, line 46, at end insert—
“(17) Subsections (18) to (20) apply (and subsections (14) to (16) do not apply) if this section comes into force on a day appointed by the Secretary of State by order under section 46(2A).
(18) Section 52ZC of the Local Government Finance Act 1992 applies with the following modifications to the determination of a set of principles for the financial year beginning with 1 April 2015.
(19) The Secretary of State may, in particular, determine categories of authority for that financial year—
(a) on the basis of whether an authority’s relevant basic amount of council tax for the financial year beginning with 1 April 2013 would have been excessive if that amount for that year and for the immediately preceding financial year had been determined under section 52ZX of the Local Government Finance Act 1992 as amended by this section,
(b) on the basis of whether an authority’s relevant basic amount of council tax for the financial year beginning with 1 April 2014 would have been excessive if that amount for that year and for the immediately preceding financial year had been determined under that section as so amended, or
(c) on the basis set out in paragraph (a) and on the basis set out in paragraph (b).
(20) In subsection (3)(b) of section 52ZC the reference to an authority’s relevant basic amount of council tax for the financial year immediately preceding the year under consideration is to the amount that would have been calculated by the authority for that year under section 52ZX of the Local Government Finance Act 1992 if the amendments made to it by this section had been in force for that year.”
My Lords, I beg to move that this House do agree with the Commons in their Amendments 27 to 29 en bloc. I shall speak also to the other amendments in this group.
These amendments would provide advance certainty to local government over timings, so they can be confident that any delay in Parliament will not impact on their budget-setting timetable.
Commons Amendments 27, 37, 39 and 40 provide that if the Bill is passed by 5 February, the likely date by which the referendum principles for 2014-15 must be laid before Parliament, the clause takes effect immediately. If not, the changes would take effect by order and relate to the financial year 2015-16. Commons Amendment 29 gives detail of the changes required if the clause was to be commenced by order and relate to 2015-16. This includes amending transitional provisions to ensure that council tax comparisons could be made on a like-for-like basis between 2014-15 and 2015-16.
Commons Amendment 28 is a minor amendment to clarify that the current clause does not reduce the existing discretion of the Secretary of State when determining categories of authority for 2014-15.
These amendments were proposed at Report in the other place as a precautionary measure to remove a risk that local authority budgeting could be adversely impacted in the event of any delay to the Bill. The Bill has not been delayed to date and, subject to the decisions of your Lordships’ House today, is on track to reach Royal Assent well before local authorities begin setting their budgets. If this remains the case, barring the minor clarification of Amendment 28, this group of amendments would not alter the operation of the clause from the version first introduced into this House.
With this explanation, I hope noble Lords will see fit to accept the amendments.
My Lords, could I make a brief point about Amendment 27 and the group as a whole? It relates to the issue of principle, which it is important that we restate. I do not like centrally imposed targets for increases in local taxation. The reason is simply this: there is a principle that localism means local decision-making, and those who are elected at local elections should make those decisions. We have various definitions now of what is seen to be relevant expenditure. Is it spending power? If you compare spending power to the amount of government grant, or to the amount of money paid on average by council tax payers or at band D by council tax payers, you get very different sums. In the end, we are reliant on the ballot box in each council area to decide who represents a ward, who then come together and make decisions about how that council is to be run. In my view, that includes the level of council tax.
I understand that we have debated that before and that debate has no doubt been held in the other place. I hope that somebody will decide to hold a referendum on the issue of council tax and the proposal that there should be a higher increase than the amount that the Secretary of State would prefer.
Therefore, this remains an issue of principle: local authorities are the people who should decide the level of council tax and they should be responsible to their electors, on the principle of localism. They will stand or fall at their ballot boxes by the decisions that they themselves take.
My Lords, this amendment takes us back to the thorny issue of council tax at referendums. We have just heard from the noble Lord, Lord Shipley, about his opposition to centrally imposed targets; he has been very consistent on that issue. The fundamental policy change provided for in the Bill is the inclusion of the definition of a relevant amount of council tax—certain levies. Previously, any increase in council tax resulting from an increase in levies could not have caused a determination that the level of council tax was excessive, and would not have triggered a referendum requirement.
Debates in your Lordships’ House and in the other place highlighted a number of concerns, namely that the referendum regime places the burden on major preceptors and billing authorities who have no direct ability to influence the amount of the levy or to cause a levy body to reduce its levy; that factoring in 2013-14 council tax increases into referendum criteria introduces an element of retrospection potentially penalising authorities for decisions made before the Bill was introduced; and that it would undermine certain infrastructure projects that relied on an increase in levy stream and that were negotiated as part of a city deal. The example of Leeds has been cited in this regard.
These concerns have not been met, either in the other place or by the amendments before us today. As we have heard, the amendments provide an alternative route to the council tax at referendums coming into force, as originally envisaged on Royal Assent, or by order. Which route is taken depends upon whether or not Royal Assent is received by 5 February; that is the date by which the referendum principles should be put to Parliament for approval. We hear from the Minister that it is quite likely that Royal Assent will be received by that date; I doubt whether anything this evening will disrupt that judgment. Should Royal Assent be received after that date, the referendum provisions will operate from 2015, rather than April 2014. However, even if they do so, that does not help with the concerns over retrospection. The amendments make clear that the Secretary of State can determine categories of authority for that year based on whether their increases in either the year beginning 1 April 2013 or 1 April 2014 or both were deemed excessive on the new principles. Frankly, this does not leave a very satisfactory state of affairs.
We have been tempted to amend the amendments at least by removing the April 2013 date from proposed new Clause 39(19)(a), but—particularly as this looks increasingly now to be just a precautionary amendment —we consider that for the time being the issue has been debated enough, so we will not resist these amendments.
My Lords, I am grateful to the noble Lord, Lord McKenzie, for his final statement in confirming that the Opposition will not resist these amendments. In response to comments made both by the noble Lord, Lord McKenzie, and my noble friend Lord Shipley, I remind your Lordships that the coalition agreement committed the Government to remove capping and to bring in a fairer system of addressing excessive council tax increases. Parliament agreed the principle of removing the old capping regime and instead giving local people the final say on excessive increases during the passage of the Localism Act 2011. The time to debate whether that was the correct approach was then and not now.
As far as timing is concerned, subject to your Lordships agreeing these amendments today, we hope to have Royal Assent as soon as possible. While that is of course a matter for the Crown, we envisage that we should have it in time for the changes to the council tax referendum provisions to take effect for the 2014-15 financial year. Those principles will be announced in due course.
I do not agree with the point put forward by the noble Lord, Lord McKenzie, about the issue of including levies being a retrospective provision. The Secretary of State considers all relevant factors when setting referendum principles and that always includes past council tax-setting decisions. That was done for 2013-14 when he gave low-spending authorities the ability to set a £5 council tax increase, even if that meant a percentage rise above 2%. This provision simply makes it clear that he can take into account changes in levies in 2013-14 and 2014-15 when setting next year’s principles.
The Government were clear before council tax and levies were set for 2013-14 that they might take account of council tax decisions in setting future principles. No change will be made to the money raised in 2013-14 and both authorities and levying bodies can plan for 2014 accordingly. Local tax payers deserve fair and equal treatment no matter where in England they live. There must be measures to protect taxpayers from excessive increases brought in through the back door by a small number of authorities without seeking local agreement.
I clearly hear the arguments that have been put forward today but I am afraid that we beg to differ. The clause and the principle of including levies in the calculation of what constitutes an excessive council tax increase has now been debated at length in both Houses and approved. The principle and practicalities of holding council tax referendums were agreed in 2011 via the Localism Act. The amendments before us do not alter them. They were proposed to ensure that local authorities were not disadvantaged by any delays in the Bill becoming law. As I said, the referendum principles will be announced in due course, but we believe that authorities should not wait for them to be published. They should look to freeze council tax levels next year and we have made funds available to support them in doing so. I beg to move.
Motion on Amendments 27 to 29 agreed.
Motion on Amendment 30
That this House do agree with the Commons in their Amendment 30.
30: After Clause 39, insert the following new Clause—
“Parish meetings: parish polls
(1) In Part 3 of Schedule 12 to the Local Government Act 1972 (procedure in parish meetings), paragraph 18 is amended as follows.
(2) Omit sub-paragraphs (4) to (6).
(3) At the end insert—
“(7) A poll may be demanded before the conclusion of a parish meeting on any question arising at the meeting, subject to regulations made under sub-paragraph (8).
(8) The Secretary of State may by regulations make provision about polls consequent on parish meetings, in particular about—
(a) the questions arising at a meeting on which a poll may be demanded,
(b) the circumstances in which a poll may or must be taken (including provision as to the number of local government electors who must demand a poll for a poll to be taken), and
(c) the conduct of a poll.
(9) Regulations under sub-paragraph (8)(c) may apply any electoral enactment (with or without modifications) to polls consequent on parish meetings.
(10) In sub-paragraph (9) “electoral enactment” means an enactment which relates to elections or referendums.
For that purpose, “enactment” includes an enactment contained in subordinate legislation as defined in section 21(1) of the Interpretation Act 1978.
(11) A statutory instrument containing regulations under sub-paragraph (8) is subject to annulment in pursuance of a resolution of either House of Parliament.”
(4) In section 243 of that Act (computation of time and timing of elections, etc)—
(a) in subsection (2) for “rules under paragraph 18 or” substitute “regulations under paragraph 18 or rules under paragraph 34”,
(b) in subsection (4) before “rules” (in both places it occurs) insert “regulations or”, and
(c) in subsection (5) before “rules” (in both places it occurs) insert “regulations or”.”
I shall speak also to Amendment 103. These amendments would modernise the arrangements that govern parish polls. I am grateful to the noble Earl, Lord Lytton, for bringing the much-needed modernisation of parish polls to the House’s attention when the Bill was last in this place. I understand, although I was not here at the time, that he had widespread support from other noble Lords. I am also grateful to the Members of the other place who consented to widen the scope of the Bill to allow the addition of these amendments.
Commons Amendment 30 gives the Secretary of State power to make regulations regarding parish polls. The clause specifies that regulations may cover arrangements for the conduct of a poll; the subject matter on which a poll may be held; and the circumstances in which a poll may or must be taken. So, in line with the noble Earl’s proposed amendment, this amendment will enable regulations that more tightly define what constitutes a legitimate topic for a poll and which raise the trigger threshold. On top of this, we will also modernise the voting arrangements to increase participation in polls by, for example, extending voting hours and allowing postal voting. Amendment 103 simply updates the Bill’s Long Title to reflect the inclusion of the new clause.
We are taking this action because we believe that parish polls are an important democratic tool that allows a parish council to get a clear indication of local opinion about a local matter. We want to protect that. However, as the noble Earl, Lord Lytton, outlined to the House last year, the current rules that govern the trigger and subject matter allow for individuals to abuse them by holding polls unrelated to the local area, at substantial cost to local tax payers. This has led to some individuals vexatiously pursuing particular agendas, with large financial consequences for parish councils. What is more, the present rules can also operate as barriers to participation, particularly as voting can take place only between the hours of 4 pm and 9 pm and there are no provisions for postal or proxy votes.
The new measures will make this important democratic process fit for purpose in the modern world. They will ensure that parish polls enable local communities to have a voice on issues that directly relate to parish matters. They will increase participation by updating the archaic arrangements for the conduct of a poll and guard against vexatious misuse. We will consult widely on the content of the regulations, which will be subject to the negative procedure. It is our aim to launch a scoping exercise in the spring, followed by a formal consultation process. We hope to work closely with the noble Earl and sector-led bodies, such as the National Association of Local Councils, in that work. I beg to move.
I particularly welcome this amendment for all the reasons recited by the noble Baroness. I think that it will substantially modernise, improve and streamline the work of parish councils and make them more open, without having the negative impediments that have previously been associated with parish polls. I very much welcome this. In doing so, as I expressed when this was before us previously, I thank other noble Lords who supported this; the noble Baroness’s predecessor, the noble Baroness, Lady Hanham, who readily took this away; and the Bill team for the work that it did to fashion it and get it approved by the other place. I warmly welcome this measure for all the reasons given. It is very much a success all round, for which I claim only minority credit for having raised the matter in the first place.
My Lords, we should thank the noble Earl, Lord Lytton, for raising this matter in the first place, and he should certainly claim a substantial amount of credit for it. He regaled us in Committee with some of the anomalies and archaic processes concerning parish meetings. Voting only between 4 pm and 9 pm with no provision for proxy or postal voting is hardly the stuff of inclusion. The noble Earl was convincing on the need to modernise arrangements, and the Government responded by providing for the Secretary of State to have the power to make regulations about the conduct of parish polls. We consented in the other place, as the Minister acknowledged, in widening the scope of the Bill to facilitate this.
The Government gave undertakings in another place—they have been reiterated tonight—about continued collaboration with the National Association of Local Councils and with the noble Earl, and we trust that the promised wide consultation on draft regulations will now proceed apace. This is an opportunity, as has been said, to provide a method for local communities to have a voice on issues directly related to parish matters, and it has our support.
My Lords, I am grateful to the noble Lord, Lord McKenzie, for his support for these amendments and I certainly join him in paying tribute to the noble Earl for all his work on the matter. I have nothing further to add but my thanks to all noble Lords for allowing us to respond so constructively to this proposal from the noble Earl.
Motion on Amendment 30 agreed.
Motion on Amendments 31 to 34
Moved by Baroness Stowell of Beeston
That this House do agree with the Commons in their Amendments 31 to 34.
31: Clause 40, page 27, line 29, at end insert—
“(fa) regulations under section (Appointment of auditor by specified person) (appointment of auditor by specified person),”
32: Clause 40, page 27, line 30, at end insert—
“( ) regulations under section (Access to local government meetings and documents) which amend or repeal any provision of an Act,”
33: Clause 41, page 28, line 44, leave out from ‘auditor”’ to end of line 45 and insert “has the meaning given by section 4(1)(b);”
34: Clause 41, page 29, line 4, at end insert—
““parish meeting” means a parish meeting of a parish which does not have a separate parish council;”
Motion on Amendments 31 to 34 agreed.
Motion on Amendment 35
Moved by Earl Attlee
That this House do agree with the Commons in their Amendment 35.
35: Clause 41, page 29, line 21, at end insert—
“(2A) References in this Act to provision made under it include provision made under Part 42 of the Companies Act 2006 as it has effect by virtue of Schedule 5.”
I shall speak also to Amendments 47, 49, 50, 51, 52, 54, 56, 57 and 58, which relate to the eligibility and regulation of auditors in the new local audit framework.
Commons Amendments 35, 47, 49, 54, 57 and 58 are all minor and technical tidying-up amendments. Amendment 35 would ensure that references throughout the Bill to subordinate legislation made under it will cover Part 42 of the Companies Act 2006, as applied by Schedule 5 to the Bill. This means that provisions on eligibility and regulation will be included whenever the Bill refers to subordinate legislation. Amendment 47 would insert a new subsection that will apply explicitly to Sections 1288, 1289, 1290 and 1292 of Part 42 of the Companies Act 2006 in relation to local audit. These sections set out how regulations and orders under the Companies Act are to be made.
Amendment 49 corrects a drafting error in order to mirror accurately the obligations under Schedule 10 to the Companies Act 2006. Amendment 54 makes a minor change to ensure that the definition of local auditor used in the Companies Act 2006, as modified and applied to local audit, refers to the correct clause in this Bill. Amendments 57 and 58 ensure that a body to which the Secretary of State’s functions are delegated under Schedule 5—which we expect to be the Financial Reporting Council—can be audited by either a statutory auditor or a local auditor.
Amendments 50, 51 and 52 together specify which existing professional qualifications will be considered as appropriate qualifications for local audit in the new framework. This will ensure that individuals qualified under the Audit Commission Act 1998 will continue to be able to undertake local audit in the new regime. We had previously intended to set this out in regulations. However, to provide clarity and certainty, it will be helpful to put it in the Bill.
Amendment 56 further modifies Schedule 10 to the Companies Act 2006, as applied by Schedule 5 to this Bill, in respect of individual auditors qualified in other EEA countries. It has two main effects in respect of these individuals. First, it will enable the recognised supervisory bodies for local audit to recognise the qualifications of those individual auditors who hold the equivalent of a UK local audit qualification obtained elsewhere in the European Economic Area. Secondly, it specifies that recognised supervisory bodies can require an EEA individual statutory auditor to pass an aptitude test only if he or she is seeking to establish himself or herself in the UK on a permanent basis as a local auditor. These changes are necessary to comply with the requirements of directive 2005/36/EC on the recognition of professional qualifications. Paragraph 6 of Schedule 10 to the Companies Act 2006 sets out that one of the requirements for a firm to be eligible for appointment as a local auditor is that it is controlled by qualified persons. Amendment 56 ensures that a firm is qualified if it is eligible for appointment as a local or statutory auditor, or is eligible for a corresponding appointment.
With these clarifications, I beg to move.
My Lords, I thank the Minister for his explanation of this quite large group of amendments. I believe they cover quite minor and technical matters. Generally, we have no issues to raise on them. When I was first going through the amendments, I did wonder about Amendments 51 and 52, which replace the power of the Secretary of State to make regulations with provisions in the Bill. As the noble Earl explained, this is to do with which existing qualifications will be recognised. It is unusual for Governments to take something from regulations and put it in a Bill, but I understand the rationale.
Amendment 56 clarifies that no aptitude test is required if an individual is providing services on a temporary or occasional basis, and it is accepted that this is to be judged by reference to duration, frequency, regularity and continuity. The Minister will be relieved to know that I do not intend to press further detailed explanations of how those terms might be interpreted. We have no further points to raise on this group of amendments.
My Lords, I thank the noble Lord for his support for these amendments.
Motion on Amendment 35 agreed.
Motion on Amendments 36 to 40
That this House do agree with the Commons in their Amendments 36 to 40.
36: Clause 41, page 29, line 48, at end insert—
“(7A) Any function conferred or imposed on a parish meeting under or by virtue of this Act, other than a function expressly conferred on the parish meeting itself, is exercisable by the chairman of the parish meeting acting on behalf of the authority.”
37: Clause 46, page 31, line 3, leave out “and” and insert “to”
38: Clause 46, page 31, line 4, leave out “Section 38 comes” and insert “Sections 38 and [Access to local government meetings and documents] come”
39: Clause 46, page 31, line 5, at end insert—
“(2A) If this Act is passed before 5 February 2014, section 39 comes into force on the day on which this Act is passed; otherwise that section comes into force on such day as the Secretary of State may by order appoint.”
40: Clause 46, page 31, line 8, leave out paragraph (a)
Motion on Amendments 36 to 40 agreed.
Motion on Amendment 41
That this House do agree with the Commons in their Amendment 41.
41: Clause 47, page 31, line 40, leave out subsection (2)
My Lords, I beg to move that this House do agree with the Commons in their Amendment 41, which is a privilege amendment.
Motion on Amendment 41 agreed.
Motion on Amendment 42
That this House do agree with the Commons in their Amendment 42.
42: Schedule 2, page 37, line 16, leave out from “meeting” to end of line
Motion on Amendment 42 agreed.
Motion on Amendment 43
That this House do agree with the Commons in their Amendment 43.
43: Schedule 2, page 37, line 36, leave out paragraphs (a) and (b) and insert “that is wholly in England”
My Lords, Amendment 43 removes internal drainage boards which are partly in England and partly in Wales from the local audit provisions in the Bill. There are two such internal drainage boards: Powysland and Lower Wye. Both are mainly in Wales but currently fall under the Audit Commission regime. Last November, the Welsh Government announced their intention to transfer the functions of the two cross-border IDBs, along with the functions of one IDB that is wholly in Wales, to Natural Resources Wales, and to bring them under the Welsh audit system. The Welsh Government subsequently supported a legislative consent Motion to make audit arrangements for these two bodies under this Bill as a stopgap measure until the new governance arrangements are in place. However, the legislative consent Motion was not passed by the National Assembly for Wales. In line with the devolution settlement, the amendment therefore removes these two bodies from Schedule 2. Schedule 2 lists the relevant authorities that would fall under the new audit regime.
It is the Welsh Government’s intention that the new governance arrangements will be in place by the time the Audit Commission is abolished, by 2015, and preparations for this are in hand. The Welsh Government are also working with Defra to agree a way forward with regard to the future management of the areas in England covered by the two cross-border internal drainage boards. Both cross-border bodies will continue to fall under the Audit Commission regime until then.
Welsh Ministers have agreed that we retain the power in Clause 2 as a backstop power to add cross-border bodies back into Schedule 2 by regulations at a later date, should the transfer of functions take longer than expected. Regulations made under this power will be subject to consultation and the affirmative procedure. They would also require consent from the National Assembly for Wales. With this explanation, I hope noble Lords will accept this amendment. I beg to move.
My Lords, I thank the Minister for his explanation of this amendment. I accept that it is consequent upon decisions of the Welsh Government and their intention to transfer the functions of the two cross-border bodies to Natural Resources Wales and to bring them under the Welsh audit system. I understand also that it is the intention that the new governance arrangements will be in place by the time the Audit Commission closes, but that a backstop has been retained should that not actually have occurred. We are content with this amendment and happy to support it.
My Lords, I am grateful for the noble Lord’s support.
Motion on Amendment 43 agreed.
Motion on Amendments 44 to 73
That this House do agree with the Commons in their Amendments 44 to 73.
44: Schedule 3, page 38, line 21, at end insert—
“(4) A local auditor appointed to audit the accounts of a parish meeting must be appointed by the parish meeting itself (and not by its chairman on behalf of the parish meeting).”
45: Schedule 4, page 40, line 4, at end insert—
“(6) The function of appointing a panel or making a determination under this paragraph is to be exercised in the case of a parish meeting by the parish meeting itself (and not by its chairman on behalf of the parish meeting).”
46: Schedule 4, page 42, line 2, after “authority” insert “other than a health service body”
47: Schedule 5, page 43, line 3, at end insert—
“(3) The reference in sub-paragraph (1) to Part 42 of the Companies Act 2006 includes sections 1288, 1289, 1290 and 1292 of that Act (regulations and orders) as they apply in relation to that Part.”
48: Schedule 5, page 44, line 27, at end insert—
“6A In section 1216 (effect of appointment of a partnership), after subsection (5) insert—
“(5A) The consent or agreement of a parish meeting under subsection (5) must be given by the parish meeting itself (and not by its chairman on behalf of the parish meeting).”
49: Schedule 5, page 44, line 31, leave out second “or” and insert “and”
50: Schedule 5, page 44, line 40, leave out “in accordance with regulations under” and insert “by virtue of”
51: Schedule 5, page 46, leave out lines 9 to 19 and insert—
“(7) A person holds an appropriate qualification for the purposes of this Chapter if, immediately before the relevant time, the person was qualified for appointment as an auditor under section 3 of the Audit Commission Act 1998 by virtue of the person’s membership of a body listed in subsection (7) of that section.
(7A) A person holds an appropriate qualification for the purposes of this Chapter if—
(a) before the relevant time, the person began a course of study or practical training leading to a professional qualification in accountancy offered by a body listed in section 3(7) of the Audit Commission Act 1998,
(b) the person would have been qualified for appointment as an auditor under section 3 of that Act by virtue of subsection (5)(b) of that section if that qualification had been obtained before that time, and
(c) the person obtained that qualification within the period of 6 years beginning with that time.”
52: Schedule 5, page 46, line 20, leave out “subsection (7)” and insert “subsections (7) and (7A)”
53: Schedule 5, page 49, line 1, at end insert—
“(7) A person appointed under this section to conduct a second audit of the accounts of a parish meeting, or to review and report on the first audit of such accounts, must be appointed by the parish meeting itself (and not by its chairman on behalf of the parish meeting).””
54: Schedule 5, page 51, line 36, leave out “7(1)” and insert “4(1)(b)”
55: Schedule 5, page 51, line 40, at end insert— ““parish meeting section 41(1) of the Local Audit and Accountability Act 2014”;”
section 41(1) of the Local Audit and Accountability Act 2014”;”
56: Schedule 5, page 52, line 25, leave out sub-paragraph (3) and insert—
“(3) For paragraph 6 (holding of appropriate qualification) substitute—
“Holding of appropriate qualification
6 (1) The body must have rules to the effect that an individual is not eligible for appointment as a local auditor unless the individual—
(a) holds an appropriate qualification,
(b) is an EEA auditor who has passed an aptitude test in accordance with sub-paragraph (3), unless an aptitude test is not required (see sub-paragraphs (4) and (5)), or
(c) has been authorised to act as a local auditor by the body pursuant to the European Communities (Recognition of Professional Qualifications) Regulations 2007 (SI 2007/2781), and complies with the requirements of those Regulations that apply to a person acting as a local auditor.
(2) The body must have rules to the effect that a firm is not eligible for appointment as a local auditor unless—
(a) each individual responsible for local audit work on behalf of the firm is eligible for appointment as a local auditor, and
(b) the firm is controlled by qualified persons (see paragraph 7 below).
(3) The aptitude test—
(a) must test the individual’s knowledge of subjects—
(i) that are covered by a recognised professional qualification,
(ii) that are not covered by the professional qualification already held by that individual, and
(iii) the knowledge of which is essential for the pursuit of the profession of local auditor;
(b) may test the individual’s knowledge of rules of professional conduct;
(c) must not test the individual’s knowledge of any other matters.
(4) No aptitude test is required if—
(a) the individual is to provide services consisting of local audit work on a temporary and occasional basis, or
(b) the subjects that are covered by a recognised professional qualification and the knowledge of which is essential for the pursuit of the profession of local auditor are covered by the professional qualification already held by the individual.
(5) Whether the provision of services is on a temporary and occasional basis is to be assessed on a case by case basis and in particular by reference to its duration, its frequency, its regularity and its continuity.
(6) A firm which has ceased to comply with the conditions mentioned in sub-paragraph (2) may be permitted to remain eligible for appointment as a local auditor for a period of not more than three months.”
(3A) In paragraph 7 (meaning of control by qualified persons)—
(a) in sub-paragraph (1) (introductory), for “paragraph 6(1)(b)” substitute “paragraph 6(2)(b)”, and
(b) in sub-paragraph (2)(b)(i), (requirement for firm to be eligible for appointment as statutory auditor), for “statutory auditor” substitute “local auditor, or as a statutory auditor in accordance with this Part of this Act as it has effect apart from its application by virtue of Schedule 5 to the Local Audit and Accountability Act 2014.”.”
57: Schedule 5, page 55, line 38, at end insert “—(a)”
58: Schedule 5, page 55, line 40, at end insert “, and
(b) in paragraph 10(6) (requirement for auditor of body established by order to be eligible for appointment as statutory auditor), for “a statutory auditor” substitute “a local auditor, or a statutory auditor in accordance with this Part of this Act as it has effect apart from its application by virtue of Schedule 5 to the Local Audit and Accountability Act 2014.”.”
59: Schedule 7, page 60, line 38, after “is” insert “—
(i) a functional body,
(ii) an entity connected with a functional body, or
60: Schedule 7, page 61, line 14, leave out sub-paragraph (2)
61: Schedule 7, page 61, line 22, after “is” insert “—
(i) a functional body,
(ii) an entity connected with a functional body, or
62: Schedule 7, page 62, line 4, at end insert—
“(3A) Sub-paragraph (3)(a) does not apply in relation to a parish meeting.”
63: Schedule 7, page 62, line 35, leave out sub-paragraph (8)
64: Schedule 7, page 63, line 2, leave out from “entity” to end of line 4 and insert “, subject to sub-paragraph (2A).”
65: Schedule 7, page 63, line 4, at end insert—
“(2A) This paragraph applies to the Mayor’s Office for Policing and Crime where a local auditor has made a report or recommendation relating to the Commissioner of Police of the Metropolis regardless of whether the Office is a connected entity or was such an entity at the time to which the report or recommendation relates.”
66: Schedule 7, page 63, line 10, leave out from ‘authority’ to end of line 11
67: Schedule 7, page 64, line 10, leave out sub-paragraph (2) and insert—
“(2) This paragraph does not apply where a local auditor has made a report or recommendation relating to the Commissioner of Police of the the Authority or was so connected at the time to which the report or recommendation relates.”
68: Schedule 7, page 65, line 3, at end insert—
“(2A) The functions of a parish meeting under paragraph 5 are to be exercised by the parish meeting itself (and not by its chairman on behalf of the parish meeting).”
69: Schedule 7, page 65, line 29, at end insert—
“(5A) Sub-paragraph (5) does not apply in relation to a parish meeting.”
70: Schedule 8, page 68, line 31, at end insert—
“(8) In this Schedule “the relevant authority concerned”, in relation to an advisory notice, means the relevant authority to which, or to any officer of which, the notice is addressed.”
71: Schedule 8, page 69, line 1, at end insert—
“(2A) The condition in paragraph (a) of sub-paragraph (2) is met in relation to a parish meeting only if the matters referred to in that paragraph are considered by the parish meeting itself (and not by its chairman on behalf of the parish meeting).”
72: Schedule 8, page 69, line 7, leave out sub-paragraph (4) and insert—
“(4) A local auditor may recover from a relevant authority—
(a) the reasonable costs of determining whether to issue an advisory notice to that authority or an officer of that authority, and
(b) the reasonable costs of issuing an advisory notice to that authority or an officer of that authority.
(4A) Sub-paragraph (4)(a) applies regardless of whether the notice is in fact issued.”
73: Schedule 8, page 69, line 10, leave out sub-paragraph (5)
Motion on Amendments 44 to 73 agreed.
Motion on Amendments 74 to 76
That this House do agree with the Commons in their Amendments 74 to 76.
74: Schedule 9, page 72, line 17, at end insert—
“(10A) In this paragraph “enactment” includes—
(a) an enactment contained in, or in an instrument made under, a
Measure or Act of the National Assembly for Wales,
(b) an enactment contained in, or in an instrument made under, an
Act of the Scottish Parliament, and
(c) an enactment contained in, or in an instrument made under, Northern Ireland legislation.”
75: Schedule 9, page 72, line 28, leave out paragraph (f) and insert—
“(f) a health and social care body mentioned in paragraphs (a) to (e) of section 1(5) of the Health and Social Care (Reform) Act (Northern Ireland) 2009.”
76: Schedule 9, page 73, line 44, after ‘offenders,’ insert—
“(ba) to assist in the prevention and detection of errors and inaccuracies,”
My Lords, these amendments extend the potential purposes for which a data-matching exercise can be carried out by the National Fraud Initiative and make minor clarifications and updates to the data-matching provisions in Schedule 9. Following the helpful amendments of the noble Lord, Lord McKenzie, when the Bill was last in this House concerning data-matching exercises, the Government introduced Amendment 76. This amendment would add the prevention and detection of errors and inaccuracies as further potential purposes for which a data-matching exercise can be carried out by the National Fraud Initiative.
The amendment would allow the National Fraud Initiative to undertake the ad hoc data-matching exercises that it does at present through the Audit Commission’s wider powers once it moves over to the Cabinet Office. If your Lordships’ House agrees, the amendment would allow the possible extension of the National Fraud Initiative’s potential data-matching powers to include: the prevention and detection of crime other than fraud; assisting in the apprehension and prosecution of offenders; assisting in the recovery of debt owing to public bodies; and the prevention and detection of inaccuracy and error, which is the subject of this amendment.
The noble Lord, Lord McKenzie, proposed an alternative amendment relating to the prevention and detection of maladministration and error when the Bill was previously here in Committee, which we undertook to consider. However, although we felt that a good case had been made for the inclusion of “error”, we concluded that there was insufficient evidence as to how the investigation of maladministration over and above error might be used. Furthermore, “maladministration” has a strong association with the work of the Local Government Ombudsman. We were concerned that its use here might raise the potential for conflicting roles and responsibilities. We therefore considered that the term “error and inaccuracies” was both more appropriate and indeed wider than the amendment proposed originally. We hope that the noble Lord, Lord McKenzie, concurs with that, and I thank him for bringing forward the original proposal that has led to this amendment.
Before enacting any of these purposes, the Secretary of State must consult relevant authorities, their representatives and the bodies affected. In addition, those regulations would be subject to the affirmative resolution procedure. In our view, these safeguards will ensure that proper consideration is given to any extension to the initiative’s current powers.
Commons Amendments 74 and 75 are minor and technical amendments made purely to ensure consistency with other, similar provisions in the Bill or with other legislation. With these assurances, I hope your Lordships will feel able to approve these amendments.