Monday, 9 February 2015.
Arrangement of Business
My Lords, welcome to the Grand Committee. If there is a Division in the House, the Committee will adjourn for 10 minutes.
European Parliamentary Elections (Amendment) Regulations 2015
Motion to Consider
That the Grand Committee do consider the European Parliamentary Elections (Amendment) Regulations 2015.
Relevant document: 18th Report from the Joint Committee on Statutory Instruments
My Lords, I shall speak also to the draft Representation of the People (Scotland) (Amendment) Regulations 2015 and the draft Representation of the People (England and Wales) (Amendment) Regulations 2015.
The first draft instrument before the Committee today, the European Parliamentary Elections (Amendment) Regulations 2015, amends the rules for the conduct of elections to the European Parliament to make two consequential changes concerning electoral registration and proxy voting that arise from the move to individual electoral registration—IER.
The instrument also provides for notices containing information about the completion of postal ballot papers to be sent, ahead of the general election in May, to postal voters whose postal voting statement was rejected at the European Parliament election in May 2014 due to an error made by the voter. I will set out the two consequential changes arising from the move to IER which was successfully introduced last year and which, for the first time, enables people in Great Britain to apply online to register to vote. More than 5 million people have now applied under IER, and two-thirds of them have applied online.
The instrument includes provisions which relate to the date relevant to assessing certain grounds for excluding electors from voting at European Parliament elections, including removing references to “15 October” as a relevant date for registration purposes. The instrument also requires proxies at a European Parliament election in Great Britain to be already registered to vote under IER at that election. This is intended to enhance the security of the voting process. These changes mirror provisions that have been applied already for other polls.
Electoral registration officers—EROs—are already required to inform electors after a poll where their postal vote has been rejected because the signature or date of birth used as a “postal vote identifier” that they have supplied on the postal voting statement failed to match that held on record—or because it had simply been left blank. This is to help ensure that these electors can participate effectively in future elections and not have their ballot papers rejected at successive polls because of a signature degradation or because they are making an inadvertent error.
These postal vote provisions applied for the first time at the European Parliament election in May 2014. Although over time we would expect the number of rejected postal votes to fall, because the provision has only recently been introduced we considered that it would be beneficial for those postal voters whose postal voting statement was rejected in May 2014 to be sent information about the completion of postal ballot papers ahead of the general election. EROs will be required to send this during a 10-day period beginning on 19 March 2015. This period has been set as an appropriate time for notices to go out ahead of the general election, and before postal votes could first be received at that poll.
The notice will set out information on the requirements for completion of postal voting statements to help ensure postal voters correctly complete them at future polls. I think that I am right in saying that roughly one in 40 postal votes was rejected at the European Parliament elections—and, clearly, that is a proportion that we very much want to reduce as far as we can. The notice will be for information only, and follow-up action will not be required from the voter, though it will be possible for voters to contact the ERO to resolve the issue that caused the postal vote to be rejected: for example, to correct the date of birth record for the elector held by the ERO.
I am aware that the Electoral Commission and the Association of Electoral Administrators have raised concerns about the proposal on the grounds that there is potential for voters to get confused if they have already made changes to their postal vote provisions following the initial notification, or if they have successfully voted by post in an intervening poll. We have listened carefully to these concerns, but we consider that the second notification will add value. For example, it will be helpful to postal voters who may have forgotten that they received the earlier communication or did not take action at the time they received it to update their personal identifiers. That is part of our answer to the communication from the Electoral Commission issued at lunchtime today.
Our objective is to enhance understanding among postal voters of the postal voting process, which will be timely ahead of the general election. It is simply telling those who have made an error in the past how to get it right, helping to ensure their future participation. I emphasise yet again that the Government’s intention for the forthcoming general election is to maximise the number of people registered, and then to maximise the number of those registered voters who vote successfully.
I turn to the other instruments before the Committee today: the draft Representation of the People (Scotland) (Amendment) Regulations 2015 and the draft Representation of the People (England and Wales) (Amendment) Regulations 2015. These instruments will make refinements designed to improve the processes for making and verifying IER applications: first, by amending requirements as to the documentary evidence to be provided to the ERO when applying for the alteration of an elector’s name on the register; and, secondly, by making it possible for annual canvass returns to be made in a range of formats.
Under the existing regulations, an elector wishing to change their name on the electoral register has to submit a form to their ERO along with a marriage or civil partnership certificate, an overseas marriage or civil partnership certificate deposited with the General Register Office—the GRO—or a deed poll or amended birth certificate. The Foreign and Commonwealth Office discontinued its service of depositing overseas marriage or civil partnership documents with the GRO last year. The draft regulations remove the references to the specific documents and replace them with a reference to “documentary evidence”. It will be up to EROs to decide what evidence they deem to be acceptable in supporting a change. However, ministerial guidance will be available when the regulations come into force, which will set out examples of acceptable documents.
Under the draft regulations, information as to name, date of birth and national insurance number relating to all applications for registration or change of name made otherwise than directly through the IER digital service must also be sent by the ERO for verification against DWP records. The instruments slightly amend the statement in the HEF annual canvass form that the information given in response to the form will be processed in accordance with the Data Protection Act 1998 to replace an incorrect reference to the application form with a reference to the annual canvass form. The existing regulations require returned HEFs to include a “signed declaration of truth” to confirm the validity of the information provided. This requirement for a signature effectively limits HEF returns to being a paper-only transaction. Under the draft regulations, the person completing an HEF is required to make a declaration of truth and give their name, but that declaration does not need to be signed. This will allow for the information in HEFs to be provided online or over the phone.
The draft instruments also delete the regulation which allows for register entries to be carried forward from one year to another, which will no longer apply under IER, and make a consequential amendment in relation to notices of alteration to the register relating to removals from the register when people have died.
In the Scottish regulations, in addition to the provisions set out above, there is a technical provision to amend a regulation on cancelling postal ballot papers by omitting a reference to local government elections in Scotland. This is not needed as the Scottish Government have regulations which cover absent voting matters.
The Electoral Commission has been consulted on these two instruments and was satisfied overall, but raised a number of comments to which the Government have responded to the satisfaction of the commission. The Information Commissioner’s Office has also been consulted but did not consider that the instruments raised any new or significant data protection or privacy issues.
In conclusion, the three instruments before the Committee today will play a part in refining the processes underpinning applications to register to vote as we continue successfully to implement individual electoral registration across Great Britain, and help support effective participation by postal voters. I commend them to the Committee.
My Lords, as the noble Lord, Lord Wallace of Saltaire, explained to the Grand Committee, we have three orders before us today which are being debated together.
The first, which is the European Parliamentary Elections (Amendment) Regulations 2015, will enable and require EROs to write to everyone who had a postal vote at the European election last year and had that vote rejected due to discrepancies between the identifiers held by the ERO and what was completed and returned with the ballot paper.
All voters who had their postal vote rejected at that election will have been written to before, and this, in effect, is a reminder of the problem that led to their vote being discounted and gives them another period to correct the situation. I broadly agree with the noble Lord, Lord Wallace of Saltaire, that that is a good thing to do, but I understand the concerns raised by the AEA and SOLACE in respect of voter confusion, if they have made changes following the previous communication from the ERO.
Does the Minister have the number of postal voters who will be written to—I know that he said one in 40, but how many is that? Is it millions or hundreds of thousands of people? Does he have a breakdown of how many postal voters per ERO? What assistance will the Cabinet Office give to EROs who have a particularly high number of people who need to be written to?
I see that the regulation applies only to Great Britain, so what are the provisions in respect of Northern Ireland? I also note that the political parties were not consulted on it. I think that that is very regrettable. There is considerable expertise in all the parties which could be valuable to the Cabinet Office and the Government. I know that the noble Lord will say that it is up to the Electoral Commission whether to consult with the political parties; I can tell him that it does not. It is a shame that the parties are not in some way involved in the process.
I, too, received the briefing from the commission at about 1 pm this afternoon, and I note that it is not very happy with the order. Will the noble Lord take back to the Electoral Commission that we expect to have its notes in a much more timely manner? No one could take them into account; they arrived literally an hour or two before the debate. It is a waste of time looking at them at this point. I do not agree with the point that it is making, but it is a waste of its time sending the briefing round so late.
The next two regulations amend the process for registered electors to change their name on the published register and for how information on the household inquiry form may be returned to electoral registration officers. I have no issues with these regulations, but I note again that no consultation with political parties has taken place, which is most regrettable.
The commission just does not consult parties on such matters, and the Cabinet Office is losing out on valuable feedback from people who can give a different perspective on these matters. Asking an organisation for its views does not mean that you have to agree with those views. It is a real failure that we do not involve parties much more in this stuff.
My only other comments are in respect of IER in general terms. I still worry that we are not quite getting there. I mentioned in the House last week that to have 30% of our 18 to 24 year-olds not registered to vote is a terrible situation for a mature democracy such as ours. I also said in the Chamber last week that if that was true in any other country in the world, the noble Lord himself would be saying that the British Government expect it to get that sorted and get those young people onto the voting roll. The problem is that this is happening here in our country—our own back yard.
What will the noble Lord be saying to the UN or the Organization for Security and Co-operation in Europe, or its Office for Democratic Institutions and Human Rights—all bodies to which we are signed up and whose initiatives we support—if they decide that what we are doing is not good enough? Is he ready for an inspection to take place by those organisations before or after the general election?
Having said that, I am content to support the orders before us today.
I thank the noble Lord, Lord Kennedy, for his comments and I recognise his very considerable expertise in this area. I used to think that I understood something about electoral law but I learnt that there is a great deal more than I do not entirely understand.
My understanding is that we are talking about more than 100,000 postal voters being written to—some 114,000 is the figure that I have in mind—and the cost of this, which is thought to be somewhere above £100,000, will be reimbursed. I do not have to hand the exact figures for which areas will be most affected.
There are all sorts of reasons why people do not complete their postal ballots correctly. I am told that one of the commonest problems is that husbands and wives, completing their forms over the breakfast table, often put them in the wrong envelopes and thus the forms have the wrong signifiers on them. However, there is a range of other reasons, including that if people are ill—if they have had a stroke, for example—their signatures change radically.
Another one is that people put down that day’s date rather than their date of birth. I think that that is the biggest one.
Yes, certainly. The noble Lord regretted the lack of consultation with political parties. The view was taken that these amendments to the regulations were sufficiently technical that they would not be of great interest to the political parties. However, I take his point and we will do our best to keep the Parliamentary Parties Panel informed of planned changes and not just of planned legislative changes.
I get the point that these changes are fairly technical, but the Electoral Commission has a political parties panel, which it was required to set up under PPERA. Having been a member of that panel and a commissioner, I am not really convinced that it is officially involved in these issues. I think that there are other things on which you could go directly to parties and that that would be beneficial to the Government and the Cabinet Office.
I take the noble Lord’s point and I think that it is a good idea in principle for the commission to give too much information rather than too little. I entirely take his point, and it has no doubt been absorbed by the officials concerned. I also take his point about the Electoral Commission’s comments having come in almost so late that there is nothing we can do with them. I am sure that that point will be referred back to the commission.
On the question of name changes on the register, we are very conscious that there are occasions—particularly, for example, with someone who is transgender or whatever—when one does not necessarily want to have one’s previous name out in public. Therefore, there is a whole set of issues concerning the delicacies, in some cases, of including previous names.
The noble Lord also raised the question of IER in general terms. I will say two things on this. First, the initial feedback from the National Voter Registration Day last Thursday is that some 160,000 people registered in one day. That is way above what has previously been the case. That was online. We do not yet know what has come in on paper but that is good news and we are continuing to work on it.
I reinforce that by saying that I addressed more than 200 students at York University on Friday afternoon, together with a panel of people from other political parties. I found that fascinating for a whole set of reasons. First, it was a crowded lecture hall with more students wanting to come than we had expected. Secondly, after it had concluded, one or two students came up to me and said, “Well, I was thinking of not bothering to vote this time, but maybe I will”. That is the problem we all have, and it is why, every time I get up in the Chamber having been asked a question on this, I say that we all have to be out there talking to as many groups of young people as we can to explain, first, how vital it is that they register, and, secondly, how important it is that, having registered, they then vote. That message has not got out to many of them and it is the underlying problem that we all face. The National Union of Students is doing a lot in that respect and we are working also with universities.
As the noble Lord will recall, the Government have just announced a further set of funding for various voluntary organisations to work, in particular, with vulnerable groups. As I said to some of the students at the end of our discussions on Friday, I have no doubt that when we come to the last possible date for registration, we will discover that a large number of young male students in particular—young female students and others are often better organised—will register at the last minute, and I very much hope that that will take us towards the high level of registration that we need.
Representation of the People (Scotland) (Amendment) Regulations 2015
Motion to Consider
That the Grand Committee do consider the Representation of the People (Scotland) (Amendment) Regulations 2015.
Relevant document: 19th Report from the Joint Committee on Statutory Instruments
Representation of the People (England and Wales) (Amendment) Regulations 2015
Motion to Consider
That the Grand Committee do consider the Representation of the People (England and Wales) (Amendment) Regulations 2015.
Relevant document: 19th Report from the Joint Committee on Statutory Instruments
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015
Motion to Consider
That the Grand Committee do consider the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015.
Relevant document: 19th Report from the Joint Committee on Statutory Instruments
Noble Lords will be aware that the Rehabilitation of Offenders Act 1974 is the primary legislation concerning the disclosure of criminal convictions and cautions. It seeks to help the reintegration into society of offenders who have put their criminal past behind them. It does this by declaring certain convictions, after a specified period, as “spent”. Once a conviction has become spent, an individual is not required to declare it when, for example, entering most employment or applying for insurance. The reforms we made to the Rehabilitation of Offenders Act, which allow many convictions to become spent sooner, were commenced in March last year and widely welcomed.
We are concerned today, however, with the exceptions order to the Act. This acts as a balance to the Act to maintain public protection. The exceptions order lists activities and posts which may present a particular risk of harm—for example, regular contact with particularly vulnerable groups, such as children—and exempts them from the protection of the primary legislation. This allows certain employers, bodies and proceedings to ask for the disclosure and to take into account certain spent cautions and convictions as well as any unspent convictions. In these sensitive areas, we consider that the need to protect the public outweighs the need to protect the ex-offender from disclosure of their fuller criminal record.
I should explain that the Police Act 1997 is the related legislation which sets out the process for the issue of criminal record certificates. Standard disclosures contain details of a person’s spent and unspent cautions and convictions, where there are any such convictions and cautions, with the exception of certain older and minor convictions which are protected from disclosure. Enhanced disclosures include, in addition, any locally held information which the chief officer of police considers is relevant to the purpose of the application. These criminal record certificates are issued by the Disclosure and Barring Service.
Having set out that background, I will now explain the two amendments which we propose to add to the exceptions order. The first deals with individuals seeking counterfraud, investigatory and security management posts in NHS Protect; the second concerns individuals seeking to engage in regulated activity relating to children and vulnerable adults.
As to counterfraud, investigation and security management in the NHS, staff in the NHS undertaking the investigation of fraud, bribery and corruption, and the safeguarding of patients, staff and NHS assets, will have access to confidential information and medicines. They may also have contact with vulnerable persons. In addition, those who are engaged in counterfraud investigations have responsibility for the preparation of prosecutions and can be called to give evidence in court proceedings. In these circumstances their character history is relevant to the issue of witness credibility, which can prove critical in obtaining successful prosecutions.
These activities clearly give rise to public protection considerations and justify the disclosure of certain spent cautions and convictions so as to determine the suitability of an individual applying to do this work. To date, this area of activity has been dealt with under a wider provision in the exceptions order, which covers working in health services more generally, including contact with patients. Investigations into fraud and other criminal activity in the health service may not involve patient contact but will nevertheless require access to sensitive material. Recent changes to counterfraud and security management in the health service mean that certain administrative staff may now assist in investigations. Consequently, they will have access to some sensitive material. In the light of these developments, we consider that there should be a distinct provision in the exceptions order which not only deals with the new administrative group of staff undertaking this work but covers the area of activity so that the exception is both precise and clear.
The second amendment in this order relates to regulated activity. While this area of work is, of course, already covered in the exceptions order, there have been changes made to the definitions of regulated activity relating to children and vulnerable adults. The Protection of Freedoms Act 2012 made changes to the definitions set out in the Safeguarding Vulnerable Groups Act 2006. We now need to reflect those changes in this instrument. The exceptions order currently covers all individuals engaged in regulated activity relating to children, and all individuals engaged in regulated activity relating to vulnerable adults as defined prior to the amendments made by the 2012 Act, which in the most part narrowed these definitions. The earlier definition of regulated activity was kept for the purposes of the exceptions order, as the Government had made a commitment to ensure that employers would still be able to obtain criminal record certificates for those individuals who no longer fell within the amended definition of regulated activity.
However, while the 2012 Act generally reduced the scope of regulated activity, its definition of relating to children was also expanded to a limited extent. This remains the case today. For example, a person who provides healthcare or personal care on an occasional basis now comes within the definition of regulated activity relating to children. These individuals would not previously have been covered because this activity would not have met the relevant frequency conditions for it to fall within the definition of regulated activity relating to children.
In addition, the Safeguarding Vulnerable Groups Act 2006 provides the Secretary of State with the power to amend the definitions of regulated activity in that Act by order, subject to the affirmative procedure. In the future, it is therefore possible that the definitions of regulated activity could be amended to cover new roles. These would not then be covered by the current provision in the exceptions order, which refers to the definitions of regulated activity as they were at a fixed point in the past.
This amendment will therefore ensure that all those engaged in regulated activity can be asked about unprotected cautions and convictions when their suitability for this work is being assessed and that that remains the case for any future changes to the definitions of regulated activity made by order under the Safeguarding Vulnerable Groups Act 2006.
I assure noble Lords that any such changes to the definition of regulated activity will be subject to debate in the House. I therefore believe it is unnecessary for an express amendment to made to the exceptions order for each new role added to that definition on the basis that any debate in respect of the order amending the definitions of regulated activity would provide the House in any event with the opportunity to consider the appropriateness of such changes, including the implication of those changes in respect of the ability of employers to seek information about certain spent convictions and cautions.
These amendments, while relatively minor in scope, are important for public protection purposes. They make sure that all those who are responsible for protecting the NHS and all those engaging in regulated activity are properly covered by the exceptions order. I beg to move.
My Lords, I will not detain the Committee very long. As the Minister told the Grand Committee, this exceptions order makes amendments in relation to those concerned with counterfraud work, the investigation of offences and security management and to current regulated activities under the Safeguarding Vulnerable Groups Act 2006. I have read the order and the Explanatory Memorandum very carefully. I am content with this order which takes account of legislative changes and ensures that individuals in a position of trust, as defined in the order, can be asked about their unprotected spent convictions and cautions. This is a very good balance between helping individuals who have offended to return to meaningful work and the need to protect the public, as the Minister said. This is a very sensible move, and I am very happy to support the order before the Grand Committee today.
My Lords, I am grateful to the noble Lord, Lord Kennedy, for his constructive and helpful observations. As he said, this is not a party-political issue. These are necessary and proportionate amendments endeavouring to strike the balance in a difficult area, and they form part of this Government’s—I dare say any Government’s—ongoing commitment to keep safeguarding measures in step with developments elsewhere. I commend the draft order to the Committee.
Freedom of Information (Designation as Public Authorities) Order 2015
Motion to Consider
That the Grand Committee do consider the Freedom of Information (Designation as Public Authorities) Order 2015.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments
My Lords, the purpose of this draft order is to bring Network Rail’s public functions within the scope of the Freedom of Information Act. This is a significant extension of the Act and the latest step by this Government to expand its scope in the interests of transparency and accountability.
We are committed to achieving greater openness and transparency in order to enable the public to hold those who deliver the services affecting their day-to-day lives to account through both the Freedom of Information Act and the wider transparency agenda. In relation to that Act in particular, the coalition agreement set out this intention, stating that the Government would,
“extend the scope of the Freedom of Information Act to provide greater transparency’.
We have already taken a number of steps to meet this commitment since May 2010. In 2010, we extended the Act to academies, in 2011 to the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service, and in 2013 to more than 100 companies wholly owned by more than one public authority. The order to extend the Act to Network Rail is a further step along this road.
I recognise that some noble Lords may wish to see the Freedom of Information Act extended in further directions. There is certainly a case for its further extension, in particular to more bodies performing public functions through Section 5 of the Act. There is also a case for extending it to other bodies. For example, the Home Secretary has already announced her intention to extend the Freedom of Information Act to the Police Federation. This would require primary legislation and, in the absence of a suitable vehicle in this Parliament, the Home Secretary has registered this as a longer-term commitment which this Government intend should be fulfilled as soon as possible in the next Parliament. I hope, however, that no matter the views of noble Lords about other bodies which might be included in future, this change will itself be welcomed as a significant and positive step.
Turning to the detail of the draft order, Section 5(1)(a) of the Freedom of Information Act enables the Secretary of State to designate a person as a public authority if they appear to the Secretary of State,
“to exercise functions of a public nature”.
Where a body is designated as a public authority under this limb it is also necessary, under Section 7(5) of the Act, for the order to specify each of the body’s functions which appear to the Secretary of State to be of a public nature. Only those functions specified in the schedule to this order will be subject to the Act.
Network Rail is not a single legal entity but is made up of a group of companies instead, hence the need to designate the listed companies separately. The companies affected, which are listed in the schedule to the draft order, are Network Rail Ltd, Network Rail Holdco Ltd and Network Rail Infrastructure Ltd. Network Rail Holdco Ltd, which is the holding company for Network Rail, and Network Rail Ltd, the umbrella company for the group as a whole, are legally responsible for many of the same functions as Network Rail Infrastructure Ltd, so they are also listed in the order. In practice, however, Network Rail Infrastructure Ltd is responsible for the day-to-day delivery of Network Rail’s public functions.
The functions performed by these companies which are considered of a public nature are those relating most directly to the development and operation of the rail network. Network Rail’s network services function covers its ownership of the rail network and the related activities that it is licensed to carry out under Section 8 of the Railways Act 1993. This includes the full range of activities carried out by Network Rail which enable our railways to operate, from large-scale projects relating to the construction or improvement of new lines to more locally focused works on, for example, individual stations, bridges or level crossings. It also includes the provision of information about train movements to train operators to enable them to meet their information obligations to the public.
In addition to owning all UK railway stations, other than those in Northern Ireland, Network Rail operates a number of major railway stations under a further licence issued under Section 8 of the Railways Act. The operation of these stations also constitutes a public function and is covered by the “station services” function listed in the schedule to the draft order. Finally, Network Rail’s provision and operation of light maintenance depots for the purpose of providing services, including the refuelling and cleaning of trains, also constitutes a public function and is covered by the order.
I appreciate that this designation is quite technical but, importantly, it covers rail safety issues in connection with the networks, stations and depots. The designation will also cover information about the management of Network Rail, such as pay. The Secretary of State has accordingly concluded that all these functions are of a public nature, for a number of reasons. Of critical importance to this decision are factors such as: the extent to which these functions are performed in the public interest, given the importance of the services which Network Rail provides to the travelling public; the extent to which Network Rail receives public funding; and the degree to which Network Rail is subject to government control, and is accountable to government and Parliament.
Network Rail provides a variety of other services which do not constitute public functions and are therefore not capable of being covered through this order. As self-funding commercial services provided in a competitive market environment rather than on a monopoly basis in the public interest, it would not be appropriate to include them. In any event, it is not possible to include such non-public functions through an order made under Section 5 of the Freedom of Information Act.
Article 2(2) of the draft order is intended to provide clarity about the services which are excluded from scope on the above basis. With the exception of permitting train companies to access and use stations and tracks, the order does not cover services for which Network Rail charges fees or receives other consideration. This includes, for example, the provision of consultancy or property services, such as the letting of shop units, railway arches and advertising space, not directly related to the operation of the railways.
Network Rail representatives have been consulted about the companies and functions covered in the order. They view its inclusion under the Freedom of Information Act positively and are in agreement with the Secretary of State about the scope of the draft order. Network Rail will handle requests submitted to it as if it were the single organisation that the public generally see it to be. We welcome the constructive way in which Network Rail has engaged with the Ministry of Justice in drawing up this order.
The Secretary of State has concluded that the three companies subject to this order exercise, in the ways I have described, functions of a public nature. As a result, I believe that it is appropriate for them to be subject to the same scrutiny as those performed by other public authorities so that they will become more open, transparent and accountable. Network Rail has taken very considerable steps to become more transparent in the last few years. It already publishes large amounts of information proactively and responds to information requests on a voluntary basis, as opposed to a statutory basis. This is highly commendable. This order builds on those solid foundations by providing a legally enforceable right to request information, so I hope that noble Lords will agree that this order is an important part of the journey towards greater transparency. I therefore commend this draft order to the Committee, and I beg to move.
My Lords, as the Minister has explained, this order designates the companies considered by the Secretary of State to carry out functions of a public nature within Network Rail as subject to the provisions of the Freedom of Information Act. As far as it goes, I welcome this order, but it has taken a long time getting here, and the Government should be going a lot further in respect of freedom of information. We have heard a lot about freedom of information from the Government. As the Minister said, it is mentioned in the coalition agreement, but progress has been slow in this area over the last five years.
Calls for the extension of FOI to cover Network Rail have been made for some considerable time. I am sure the Minister is aware that the Public Accounts Committee has called for it on a number of occasions. Will the Minister name the companies that are part of Network Rail that will not be subject to the provisions? Will he tell the Grand Committee why it has taken so long for the order to get here today? Who in Network Rail was opposed to the extension of these provisions? Was that part of the reason it has taken so long? It would be useful if he could tell the Committee whether this is a settled position or one that the Government intend to keep under review to see whether the scope of the coverage could be broadened in future. As a regular train user, being able to get further information on issues such as the shambles at London Bridge and how we arrived at such poor service for passengers is most welcome.
Will the Minister say something on the Government’s general thinking in respect of freedom of information? I know he said something earlier, but more would be helpful. Do the Government have a view about private sector companies that are delivering public services being subject to FOI, particularly about the public service they actually deliver? I am thinking of train operating companies, which in some cases are delivering such a poor service. I do not know how much train travel the Minister does in London, but my experience of travelling in from south London every day is of a generally poor service from companies who largely think that they are beyond any form of accountability.
I am also an elected councillor in the London Borough of Lewisham and the ward that I represent has dreadful problems with Crofton Park railway station, for example, and neighbouring stations. I have written to the Secretary of State for Transport and invited him to take a train with me from either Brockley or Crofton Park, but I am still waiting for a reply. If the Minister bumps into his right honourable friend, perhaps he could mention to him that I am still waiting for that reply. There is such an awful service at those stations that I would love to show him what goes on there. However, I am content with the order today and welcome it.
My Lords, I am grateful to the noble Lord for his comments generally, although perhaps not all of them. As he knows, the Freedom of Information Act was part of the coalition agreement. It has now been extended to Network Rail in its various manifestations—those parts where there is a public function.
The noble Lord asked for a list of the subsidiaries that are not to be subject to the Freedom of Information Act because they do not perform public functions. He should stand by for a list. They are Network Rail (High Speed) Ltd, Doddle Parcel Services Ltd, Network Rail (VY1) Ltd, Network Rail (VY2) Ltd, Network Rail Certification Body Ltd, Network Rail Consulting Ltd, Network Rail Development Ltd, Network Rail Insurance Ltd and Network Rail Pension Trustee Ltd. I can give the noble Lord a little more detail of those and of the Solam group, the Station Office Network LLP, Victoria Place Shopping Centre Ltd and West Hampstead Square LLP. Those and other subsidiaries I can provide a little more detail about in correspondence, but he will realise that there are some subsidiaries that are not concerned, as I indicated in my remarks, with matters that we regard of a public nature.
The noble Lord was concerned that it has taken some time to bring forward an order of this sort, having regard to the coalition parties’ pledge. The issue has indeed been under consideration for some time. The decision to extend the Act to Network Rail was ultimately taken together with its reclassification to the public sector in September 2014. The order was prepared as quickly as possible following that decision.
On the argument about what our approach should be towards freedom of information generally and whether it is the Government’s plan to extend it further, given the limited life left of this Parliament there is of course not a lot of time to do that. It might help the noble Lord and the Committee if I explain that we agreed with the Justice Committee in its post-legislative scrutiny recommendation that contractual transparency provisions often provide a more appropriate means of ensuring openness than the formal extension of the FOI Act to contractors. Indeed, the noble Lord may have heard me explaining that in the context of the Criminal Justice and Courts Bill in respect of some aspects of what the Government do. We think that this approach strikes a balance between transparency and reducing burdens on non-public sector service providers, including charities and small businesses. Information about contracts between public authorities and private companies is already available from public authorities that are in any event subject to the FOI Act. That is the general direction of travel.
The noble Lord asked about problems with the railways generally in London, and he would probably accept that that is better directed to the Department for Transport. I can tell him that the Office of Rail Regulation is carrying out an investigation into the Christmas engineering overrun at King’s Cross and how it was managed, and a report will be published after it has been considered by the ORR board. The chief executive of Network Rail, Mark Carne, has launched an industry-wide review into the timing of major works programmes and the passenger contingency arrangements for such works. The Government welcome this review and look forward to its conclusions. If I bump into my ministerial colleague, I shall of course be sure to mention the noble Lord’s discontent with the rail service as a whole.
I think that that answers all the questions posed to me by the noble Lord, Lord Kennedy. As I promised, I can provide a little further detail of those companies not to be subject to the Freedom of Information Act. There are contractual provisions and, where they are not subject it is because, essentially, they are not performing a function of a public nature.
Companies Act 2006 (Amendment of Part 18) Regulations 2015
Motion to Consider
That the Grand Committee do consider the Companies Act 2006 (Amendment of Part 18) Regulations 2015.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments
My Lords, these regulations propose small changes to legislation that will simplify company law in the area of buying back shares for private companies with employee ownership—a form of mutual in which a meaningful proportion of a company’s shares are owned by the employee. Examples of private companies with direct share ownership include the Arup Group, Mott MacDonald, Unipart, PA Consulting Group and the Childbase Partnership. The new regulations clarify the operation and accounting treatment of share buy-back procedures, which were first introduced in 2013, by addressing minor omissions in the original legislation.
The independent Nuttall review of July 2012 set out the economic and social benefits of employee ownership. The review identified three types of barrier to its growth: lack of awareness, lack of resources and legal barriers. I am pleased to say that all the review recommendations have now been addressed, and most of them implemented. For example, the Government have helped to raise awareness of employee ownership with active support for the UK’s Employee Ownership Day, held each year on 4 July. Last year, there were more than 100 events countrywide to celebrate and promote the benefits of employee ownership. I mention this because I know that noble Lords opposite have shown an interest in communication.
We have also worked with industry to produce model documents and guidance on employee ownership for employees, employers and their business advisers. Most importantly, the Government introduced new tax incentives for companies that wish to adopt indirect employee ownership, when shares are held in trust for the benefit of all employees. We believe that this will be of particular benefit to small and medium-sized enterprises grappling with succession planning, as these incentives make selling your company to your employees via a trust an attractive and viable option. The new tax provisions also introduced more generous allowances for employees of companies with employee benefit trusts that share their profits with employees—for example, the John Lewis Partnership.
Since the review in 2012, we have seen growing awareness of employee ownership. According to the Employee Ownership Association, the trade association for the sector, the number of employee-owned companies nationally is still increasing at an annual rate of 10%. One of the review’s specific recommendations was that legislative changes were needed to simplify procedures for buying back shares in employee-owned companies. Therefore, in 2013 changes were introduced that would improve the operation of internal share markets and support private companies with direct share ownership models.
I make it clear that today we are speaking about changes that allow private companies to buy back their shares more easily. Private companies that wish to encourage their employees to hold shares directly—that is, without the use of a trust—often seek to buy back shares from employees who exit the company to redistribute them to new employees. This allows the company to avoid the risk that, over time, shares earmarked for allocation to employees become predominately owned by former employees, or others outside the company.
Prior to 2013, companies were obliged to comply with a number of company law provisions that regulate this process. The legislation that we passed in 2013 streamlined it. However, our attention was drawn at a very late stage to a couple of small details within the legislation which lacked sufficient clarity. We were unable to make the necessary changes at the time but committed to addressing them in due course. The regulations presented for the Committee’s consideration today address these issues. In addition, we are taking the opportunity to present a further minor amendment to the 2013 legislation, which is also deregulatory.
It was found sufficient to consult informally on these changes. A formal consultation would have been disproportionate to their small scale and likely effect. However, a full post-implementation review of the substantive changes made in the 2013 regulations, as well as the amendments we are proposing today, will be carried out in 2016. This is in accordance with the commitment given in the impact assessment for the 2013 regulations.
I will not repeat the detail set out in the Explanatory Memorandum to the SI but I assure noble Lords that the new regulations ensure that the Government’s intention of improving the operation of internal share markets, started in 2013, can now be fully met. These proposals are purely enabling. They impose no costs to business and familiarisation costs will be minimal. Given the small, technical nature of the changes, it would have been disproportionate to try to explicitly quantify their likely costs and benefits. Nevertheless, the analysis provided in the impact assessment for the 2013 regulations, which also covers some of these amendments, indicated clearly that the policy overall is anticipated to result in a net reduction in the costs to business.
I hope that noble Lords will support these reforms, and I commend the regulations to the Committee.
There is a select group of noble Lords present today. We have no reason to oppose these regulations. I am happy to say that the Minister answered a question that I was going to ask, which was whether we have seen an increase in the number of companies. She pointed out that there had been an increase of 10% per year. I do not know what the distribution is in terms of SMEs and large companies. If the noble Baroness has that information, it would be interesting to know the breakdown.
The Minister referred to the internal share markets. I presume that we are not talking about things such as the Royal Mail share sale but that the regulations include companies like the John Lewis Partnership. I can see the need to buy back those shares to prevent a dilution of current employees owning shares in the company. Other than that one question, we are happy to give our assent to this statutory instrument.
My Lords, as always, we seem to have a good understanding of what will interest noble Lords on some of these regulations, and it is refreshing that we have largely been able to answer the questions which naturally arise when putting through an instrument of this kind. I can confirm that these regulations do not cover the Royal Mail. I do not have with me the breakdown of the figures for smaller and larger companies but I will obviously ensure that I get that to the noble Lord.
I think we can conclude that these regulations meet the requirements of the Act and I commend them to the Committee.
Insolvency Act 1986 (Amendment) Order 2015
Motion to Consider
That the Grand Committee do consider the Insolvency Act 1986 (Amendment) Order 2015.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments
My Lords, the order raises the level at which creditors can petition for someone’s bankruptcy from £750 to £5,000. Bankruptcy is, and should be, very much a last resort. We have been working to ensure that people can get debt advice at an early stage when they are getting into financial difficulty. The Money Advice Service has been given the task of co-ordinating debt advice provision and an independent review has recently been conducted on that role. We expect to announce the government response to this review shortly.
The Financial Conduct Authority is currently re-authorising debt management firms, which will ensure that a good service is provided to consumers struggling with debt. The national curriculum has made financial literacy statutory for the first time for 11 to 16 year-olds from September 2014—a change which I warmly welcome. The curriculum for mathematics has also been strengthened to give pupils aged from five to 16 the necessary skills that they need to make important financial decisions about mortgages and loan repayments. We have also taken steps to reduce the costs of debt solutions. We have made an order providing an increase to the debt and asset limits for debt relief orders, enabling more people to use this low-cost form of debt relief. Legislation has also been passed to allow debtors to apply directly to an adjudicator for bankruptcy, rather than to the court, to reduce the cost of the bankruptcy process for those in need of debt relief.
Forcing someone into bankruptcy for a relatively small debt is disproportionate. Bankruptcy can have a significant effect on families, and can lead to mental and physical health issues due to stress, not least when it results in the loss of the family home. Bankruptcy also restricts access to credit, can lead to loss of employment in certain professions and prevents a person acting as a company director. We therefore consulted on what the right level should be for a creditor to petition for someone’s bankruptcy. The current figure of £750 was set in 1986. There was strong support for that level to be significantly raised. Debt advice bodies highlighted that a relatively small debt can grow enormously when the costs of bankruptcy are added, such as insolvency practitioner fees and legal costs, which may run into tens of thousands of pounds.
For example, one couple with a £1,350 council tax debt eventually ended up with debts of £80,000 as a result of the process. In another example, a local authority was criticised for obtaining a bankruptcy order for a council tax debt of £1,105 without due regard for the consequences on the debtor. It should be noted that a creditor petitioning for someone’s bankruptcy is unlikely to see much of a return at all when the debt is under £5,000.
Bankruptcy cases may either be dealt with by an official receiver, when the case is straightforward or there are minimal assets, or by an insolvency practitioner, when the case is more complex. However, for both types of case, where the petition debt is below £5,000, the amount returned to creditors is very low. Once any assets of the bankrupt are realised in the bankruptcy, they are distributed in proportion between the different creditors in priority order. However, sadly, in many cases there is no dividend at all. Those returns also do not take account of the court costs and other legal fees which the petitioning creditor will face.
It is important that creditors should have appropriate options to recover a debt owed to them. For debts below £5,000, creditors still have a number of other routes to seek debt repayment, including obtaining a charging order over property or land, an attachment of earnings order if someone is employed or the use of bailiffs.
Responses to the call for evidence suggested a rise of between £1,500 and £10,000, with the highest number of responses favouring a rise to £3,000 or £5,000. In arriving at a limit of £5,000, the Government have attempted to strike a balance between the reasonable needs of creditors and the interests of debtors. I beg to move.
I thank the noble Baroness for her helpful introduction to this statutory instrument. It seems to be a sensible move for the reasons that she states. There is no point in forcing people unnecessarily into a bankruptcy procedure. The case that she quoted about local authorities is a worrying one. They seem to have forgotten to apply the common-sense rule and the law of diminishing returns.
I could not help reflecting on a recent Radio 4 programme which dealt with debt and which featured a young woman who had gaily acquired three credit cards, followed by a shop card. I wonder when we are going to remind banks yet again of their responsibility not to lead people into debt, although that is not in any way to say that these individuals do not have a personal responsibility. I was reflecting on the financial advice that we now give people, which is a good thing. We ought to remind them that credit card debt eventually needs to be repaid. The worst-case scenario is that, if they are unable to pay that debt, they will then move into payday loans, and we have been through that.
Therefore, the order strikes us as a sensible way forward. It is far better that people who get into debt and do not have much disposable income should be able to take a variety of routes, including debt relief orders. Other than those comments, we support this statutory instrument.
My Lords, I thank the noble Lord for his kind words. I very much agree with him about the need for better information, which is why I said that I welcomed the change to the national curriculum. He is also right that the banks need to be responsible. That is why it is good that we have completely reformed and tightened up financial regulation. However, there is a clear case for this important measure and I commend the order to the Committee.
Protected Disclosures (Extension of Meaning of Worker) Order 2015
Motion to Consider
That the Grand Committee do consider the Protected Disclosures (Extension of Meaning of Worker) Order 2015.
Relevant document: 19th Report from the Joint Committee on Statutory Instruments
My Lords, this order was laid before Parliament on 12 January. It will amend Section 43K of the Employment Rights Act 1996 to bring student nurses and student midwives into the scope of the whistleblowing framework, often referred to as PIDA, the Public Interest Disclosure Act, as this was the Act which introduced protection for whistleblowers. The Government are taking this necessary step to ensure that student nurses and student midwives who witness poor practice can raise a concern without the fear that their future careers will be jeopardised.
The Government are making this change in response to the scandals uncovered at Stafford hospital, where it was found that a culture of bullying and covering up led to unacceptable failures in care. The inquiries that followed this scandal revealed that there were many cases where staff could have spoken up about poor practice but did not feel able to do so. The student nurses at the hospital were also in a position to raise concerns about wrongdoing.
We are aware of at least one example where a trainee nurse tried to raise the alarm about the care of patients in a hospital and, as a result, lost her training position and was unable to complete her course. We cannot tell how many other students in this position have refrained from taking cases to employment tribunals, realising that the cases could be dismissed.
The Government’s call for evidence into the whistleblowing framework in 2013 concluded that student nurses and student midwives are just as likely as qualified professionals to witness poor practice or other wrongdoing in the provision of healthcare services. The Government believe that student nurses and student midwives should be able to report their concerns without the fear of losing their place on an academic course or that their future registration as a nurse or midwife may be threatened.
There is an obvious question about why we are extending the whistleblowing framework only to student nurses and student midwives, rather than to all students in the health sector. I assure the Committee that the Government intend to extend the legislation to all students in the healthcare sector. However, the drafting of that legislation is more complex and will take a bit more time to get right. It will require consultation with all the different professional bodies which register the various professions in the health sector and approve training courses. That will ensure that the legislation takes account of the differences in how students train and become qualified in each profession.
We are already undertaking that work. Of course, it is unfortunately unlikely to be completed within this Parliament, but I am sure that the next Government, whichever colour they may be, will support legislation that creates a culture of openness and transparency within the NHS.
I know that the Nursing and Midwifery Council and Public Concern at Work have worked hard to bring to the fore the issues that student nurses and student midwives face, so that they, too, can safely raise concerns about poor practice. The order is a huge step forward in the campaign for student nurses and student midwives. I hope that the Committee is minded to support the order.
I thank the Minister for introducing the order. Of course, we welcome it. In a recent, much more lengthy debate, we raised other aspects of protected disclosure that we will come back to fairly soon at Report. The Minister can breathe a sigh of relief that I do not intend to raise any of those now, because that would be inappropriate. We welcome the order. It is a shame that we could not cover all students. I was going to ask about the timeframe, but the Minister has given it to me. We are where we are. Given the circumstances, we welcome this important step forward. It is a difficult decision for workers in the health service. We can see from all the case examples that have emerged how difficult it is to go down that route, so we definitely welcome this step forward.
I am grateful to the noble Lord. To reiterate, the Government are committed to supporting the important role of whistleblowers, who can play a crucial role in ensuring that workplaces and work practices, especially in the health service, are safe. I look forward to debating wider matters at Report on the small business Bill, and I commend the order to the Committee.
Committee adjourned at 4.43 pm.