Monday 14 March 2016
Arrangement of Business
My Lords, if there is a Division in the House, the Committee will adjourn for 10 minutes.
Companies (Address of Registered Office) Regulations 2016
Motion to Consider
My Lords, I shall also speak to the draft Register of Companies and Applications for Striking Off (Amendment) Regulations 2016. The aim of both sets of regulations is to provide new procedures to protect innocent parties where information on the public register about a company’s registered office address, or about the appointment of a director of a company, is inaccurate.
First, I shall deal with the regulations about registered office addresses. The Companies Act 2006 requires every company to have a registered office to which all communications and notices may be addressed. The registered office acts as the company’s address for service. It is not necessary for the company actually to carry on business from the registered office; it can use the address of a third party, such as a firm of solicitors, as its registered office.
The Registrar of Companies receives complaints that some companies use as their registered office the address of another business or private individual which they are not authorised to use. If someone finds that their address is being misused in this way, the impact can be significant and distressing. In the worst cases, bailiffs could be sent to the address in the false belief that it is linked to the company.
The Companies Act 2006 allows the Registrar of Companies to remove factually inaccurate, invalid or ineffective material from the public register, either through an administrative process or by order of the court. However, there is a slight oddity in the Companies Act provisions on registered office addresses. What makes an address a company’s registered office address is the fact that it is recorded on the public register as such. As a result, it cannot be removed under the existing provisions. A new mechanism is needed to stop a company from continuing to use an address where it is not authorised to do so. This is what the regulations do.
Under the new system, a person will be able to apply to the registrar for the company’s registered office address to be changed on the grounds that the company is not authorised to use it. The registrar will send a notice to the company directing it to either change its registered office address or provide evidence that it is authorised to use the address. Where the registrar is satisfied that the company is not authorised to use the address, the registrar will change the registered office to a temporary default address. The intention is for the registrar to operate an address at Companies House for this purpose.
I turn now to the regulations on director appointments. Companies must inform the registrar when a director is appointed or removed or when a director’s details change. At present, a person appearing on the public register as a director of a company can apply to have their name taken off on the grounds that they did not agree to the appointment. However, the company can stop an application merely by objecting, without having to provide any evidence to support its objection. The regulations change this by requiring the company to provide evidence that the person consented to become a director. If the company supplies this information, the person’s name will stay on the public register; if the company does not, the person’s name will be removed from the public register.
These regulations share the same aim of providing a more effective way of correcting information on the public register. They will enable the registrar to quickly change addresses to protect innocent third parties and make it easier to resolve cases where people have been appointed as directors without their agreement. I commend both sets of regulations to the Committee.
My Lords, I am grateful to the noble Earl for his introduction. These are not contentious issues and I do not intend to hold up the debate for long, particularly as we are ready to go on to the next debate, my noble friend Lady Sherlock having arrived—she was worried that we would finish even before she could arrive.
My general point is that these seem to fall into the category of sledge-hammer and nut issues. I am a little more concerned about the address of registered office regulations than about the striking-off regulations, but it is true that, in both cases, the regulations have been brought forward because there is a defect in the original legislation and it is right and proper that at the appropriate time these are corrected—I am singing the same tune as the noble Earl did in his introduction. My points are therefore rather lightweight, but they are made for the purposes of scrutiny.
First, on a factual point, in both sets of regulations it is clear that a review will be required not only before December 2020 but every five years thereafter. However, it does not say that in the Explanatory Memorandum, although it does say it in the regulations and, in one case, in the Explanatory Note. When these things are brought before the Committee, it would be helpful if such things were all along the same lines. I assume that the substantive position in the regulations is correct and that these provisions will be subject to periodic review. Having said that, these changes are so trivial that, given their nature, I wonder whether it was necessary to make them in quite such a gold-plated way. The statement is fairly clear that not only is there to be a review within five years and every five years thereafter, but that there is also provision for a review should there be any unexpected responses to the regulations, so the Government are well covered on this. I certainly would not be shouting from the rooftops were this to be watered down a little, but it may be too late for that.
My second, slightly more substantial, point applies to both sets of regulations, but primarily to the registered office address regulations. The regulations seem to give the registrar a quasi-judicial authority. In a sense, this is entirely in line with the broad approach that is taken to the Registrar of Companies, because there are points on which the registrar must make a determination. However, I worry slightly about the extent to which these are going to be treated as judicial events when and if there are complaints about them, as opposed to their being done administratively with any subsequent actions to be taken up through the courts. Just before I came in, I was looking at the Explanatory Memorandum for the registered office regulations, in which there are some references. For example, regulation 9 provides:
“For the purposes of determining the application, the registrar may … refer the application, or any question relating to the application, for determination by the court”.
However, the regulation does not explain which court and under what basis.
If one were to take rather a cynical view, one could see this undermining the whole basis of the costings. If you are talking about bringing in expensive lawyers and fancy courts at a high level, then costs will be a lot more than the very small sum of £180,000 that is currently estimated. I assume that is not the case and I am not asking for a detailed response at this stage, but perhaps in a moment of greater leisure the noble Earl could write to me or put the position on the record and in the Library. Is this an issue related to the interpretation of statute, or are these matters of fact that need to be determined by the court, or is it because we are concerned generally that the registrar should not become too judicial so, where the decision is tricky, it goes to the courts? These are matters of judgment and there may not be a specific line on them, but the regulations are a little vague. I can imagine myself in a company position not being quite clear where I might end up and therefore being a little confused about it. I should like a little more clarity.
This question may not be particularly well dealt with in the response because—it does not need to be said again—we are talking about a very small sample of companies likely to be affected. This will not have a major impact on the way in which the economy operates, but there is a default position that this is largely a nuisance issue where people discover that the house which they have just bought, or the rooms which they occupy, have an office with a registered address there, so they get flooded with letters and, if things go really badly, bailiffs will be forcing their way into their accommodation. I suspect that it is a rather rare occurrence and do not imagine that it is what we are talking about. However, the impact assessment says that this facility might be of value in cases of fraud. I could see no figures given in the impact assessment on whether we are talking about substantial numbers of companies here, which are in fact required to be affected because they are engaging in fraudulent activity. If we are talking about a significant number of fraudulent companies, then clearly that is slightly different from the irritation of having your previously private address taken over by another company. Again, I am not looking for a full response today. I just wondered whether the fraud element which creeps into the impact assessment but is not mentioned in the Explanatory Memorandum is a significant issue. If it is, perhaps the Minister could write to me at some point to explain that.
My Lords, I thank the noble Lord, Lord Stevenson, for his contribution.
On the issue of companies referring applications to the courts, I can say that in the vast majority of cases the registrar will be able to make a decision quickly and easily. The regulations allow the registrar to rely on certain evidence without further inquiries about the address that the company is authorised to use as its registered address—for example, evidence that the company has a property interest at that address. However, there may be exceptional cases—for example, those which are particularly complex—where the court is better placed to make a decision. I note carefully what the noble Lord said about the other use of courts and where that use can go, but in those circumstances where the courts are better placed to make a decision, the registrar should be able to refer the dispute to the court to determine the matter. The aim is that it will be concerned solely with issues of fact.
The noble Lord also referred to the instances of this raised in the consultation. The consultation involved a relatively small number of people, but I think that about 80% to 85% of the people who responded—it was in the region of 120 to 130 people on both regulations—thought that these provisions would be of use, because they would prevent people using their home address for nefarious deeds.
The noble Lord also asked a number of other points, and I will ensure that I write to him with a little more detail than I can give now.
These regulations will provide a more effective way of correcting information on the public register. I therefore commend both sets of regulations to the Committee.
Registrar of Companies and Applications for Striking Off (Amendment) Regulations 2016
Motion to Consider
Child Support (Deduction Orders and Fees) (Amendment and Modification) Regulations 2016
Motion to Consider
My Lords, these regulations were laid before both Houses on 8 February 2016. They enable the department to waive collection and enforcement fees on the 2012 child maintenance scheme for a specific group of cases for a limited period of time. This is to support a process that provides a safety net for parents with care. It will require non-resident parents with a poor history of meeting their child maintenance obligations to demonstrate a change in behaviour and prove that they could reliably be allowed to access the direct pay service on the 2012 scheme rather than having to pay collection fees in the new scheme. We will also introduce minor technical amendments to the existing powers to improve the effectiveness of regular deduction orders and lump sum deduction orders.
A comprehensive reform of the child maintenance system began in 2012 which aims to incentivise parents to collaborate in the best interests of their children and move us away from the idea that state intervention via a statutory child maintenance scheme should be the default option for separated parents. To achieve these aims, a programme to close all existing Child Support Agency cases began in June 2014. Closing cases gives parents the chance to consider which arrangement best suits their circumstances for the future, while access to Child Maintenance Options, a free and impartial service, ensures that they have relevant information available to help inform this important decision.
Where parents believe a statutory solution would be best for them, they can apply to the new 2012 scheme, which is operated by the Child Maintenance Service. New, simplified calculation rules and improved IT systems are delivering better outcomes for parents and children. At the same time, fees and charges are helping to incentivise parents to consider closer collaboration and use a direct pay service, while also providing a contribution towards the cost of running the service. This policy change is predicated on the view that encouraging parents to co-operate when arranging child maintenance payments is likely to lead to less confrontation between parents, and this is ultimately normally in the best interests of the children.
When approaching case closure, we are of course mindful of the need to take careful steps to reduce the risks of child maintenance payments being disrupted, particularly for those cases where money is flowing only as a result of enforcement action being undertaken on the old CSA cases. We want to address concerns raised by stakeholders following the public consultation on case closure undertaken in 2012.
The last segment of cases that we will close—segment 5 —will include those cases where money is flowing as a result of enforcement action. But to try to give clients an opportunity to avoid charges, as well as giving a chance for future co-operation between parents who may have been in conflict previously, we want to introduce a new positive test of compliant behaviour for these previously recalcitrant non-resident parents. This is known as a compliance opportunity. The compliance opportunity will take place during the first six months of the 2012 scheme case for this group. During that time, the non-resident parent is required to pay half of their maintenance liability via the collection service by a non-enforced method of payment such as direct debit.
In order to ensure that the parent with care is protected, we will issue a deduction from earnings order to the non-resident parent’s employer to collect the other half of the ongoing maintenance liability directly from the non-resident parent’s wages, wherever this is possible. This payment safeguard aims to minimise disruption for the parent with care during the compliance opportunity. Where the non-resident parent misses even one payment, they will fail the compliance opportunity and prompt action will be taken to resume collection of the full amount of maintenance by the enforced method of payment already in place, with the collection and enforcement charges applied. Only in circumstances where the non-resident parent is not at fault will an exception be made.
If all payments are made, the non-resident parent will pass the compliance opportunity and have a chance to continue paying child maintenance directly to the parent with care in future. So the outcome of the compliance opportunity will inform a decision over whether a 2012 scheme case should be a direct pay arrangement, which does not attract collection fees, or a collect and pay arrangement, where CMS manages collections and the usual fees are charged.
The initial proposal, outlined by the previous Government, was to offer the compliance opportunity in the final six months of the closing CSA case. It would be offered to all clients regardless of whether they intended to apply to the new 2012 scheme. This would have meant expending resources unnecessarily, including significant investment in the CSA computer systems close to their retirement date. However, it is now our intent to move the compliance opportunity to the first six months of the new case. It will then be offered to those who choose to apply to the 2012 scheme before their CSA case closes and cannot agree between themselves on whether their new case should be managed on the direct pay service or the collect and pay service. We have consulted with stakeholders and they are supportive of this approach.
We will administer cases on the collect and pay service type for the duration of the compliance opportunity, which will allow us to use an enforced method of payment as a payment safeguard. Ordinarily these actions would attract collection and enforcement fees on the 2012 scheme, but we are committed to delivering a compliance opportunity as it protects the interests of the parent with care and can help to maximise the number of effective arrangements on the new 2012 scheme. The fee waiver that will be introduced under this instrument is required in order to be fair to both parents while testing the reliability of the non-enforced payments. That is considered necessary for the successful delivery of this essential measure.
The instrument will also make some technical amendments to clarify the existing rules governing regular deduction orders and lump sum deduction orders to allow them to include collection and enforcement charges. RDOs and LSDOs are enforced orders that are used to secure child maintenance liabilities by deducting money directly from non-resident parents’ bank accounts. The provisions in these regulations will put beyond doubt that we are able to collect the fees and charges associated with the new 2012 scheme, as well as the maintenance liability, and collect CSA arrears that have been moved to the 2012 system. This is in line with existing policy, and these provisions aim to put the legal position beyond doubt.
I am satisfied that the instrument is compatible with the European Convention on Human Rights, and I commend it to the Grand Committee.
My Lords, I have a couple of questions for the Minister. First, there is no mention of CSA arrears in the new compliance opportunity in these 2016 regulations. Will the Minister expand on how those cases will be dealt with? Secondly, what does the Government’s analysis show about subsequent child maintenance outcomes where cases involving children have closed, particularly as the Minister has mentioned that IT systems were providing much better outcomes?
My Lords, I thank the Minister for her explanation of the draft order. I remind the Committee of my historic interest as a former non-executive member of the board of the Child Maintenance and Enforcement Commission, and my decidedly historic interest as a long-distant chief executive of the National Council for One Parent Families. I am going to raise points very similar to those raised by the noble Baroness, Lady Manzoor, although, I fear, in rather less concise a manner, so the Minister is warned now.
As I understand it from what the Minister said, these regulations are aimed at non-resident parents in segment 5—people whose cases are facing closure on a legacy system but who are the subject of some CSA enforcement action. The idea is that they will get this compliance opportunity, or chance to show willing. These are people for whom, in the past, we have had to use enforcement, but they will now be able to show that they will do it. Their success in doing so will decide whether or not they end up on direct pay or on what is known as collect and pay under the CMS. I can see the Minister nodding, so I know that I have got that much right. I gather this came about because concerns were expressed about the Government’s original plans to move people on to direct pay; this is a way of testing it out. That seems a sensible idea and we have no objections in principle. However, I do have a number of questions.
The first is a really simple question. I found it impossible from the draft regulations or the memorandum to understand what regulation 2 does. It may be that the last paragraph of the Minister’s opening remarks told me that, but I wonder whether she could clarify it. The EM says of regulation 2 that,
“These provisions are likely to attract minimal public interest”.
That may well be because nobody, myself included, has the slightest idea what the regulations are doing, so it would be helpful if the Minister could clarify that. In particular, will the Minister set out for the record what powers the regulation will give the Government that they do not have now and in what circumstances they envisage using them? If the answer is in her last paragraph, she can point to that. Secondly, will the Minister confirm that all the cases covered by these regulations will still have statutory maintenance arrangements, not voluntary or family-based arrangements?
Next, I want to pick up the point raised by the noble Baroness, Lady Manzoor, about arrears under the legacy system. I understand that there is going to be a cleansing process to make sure that any arrears liability that is transferred across to the CMS is solid and accurately recorded. The intention is to move the ongoing liability across first and then to cleanse the arrears; once they have been verified, the arrears will follow. However, the Minister mentioned that the Government have decided to delay the compliance opportunity until the end of the process rather than have it at the start. Therefore, I am worried about whether the Government have considered what will happen. Under the compliance opportunity, the non-resident parent who has previously shown him or herself not to be able to pay without enforcement action will be tested only on their ability and willingness to pay ongoing maintenance liability as determined by the CMS system. Therefore, they will not have been tested on their ability and willingness to pay arrears, which they may or may not be happy to do. Why did the Government make that decision in the light of that? Would it not have been better to leave it right until the end so that, by the time the compliance opportunity came along, the arrears would have gone across and it could then be applied to both? Can the Minister explain that some more?
Will the Minister tell the Committee whether any arrears still within the CSA which are awaiting transfer across at the end of the cleansing process will continue to be collected by the same enforcement method, whatever may be going on with the compliance opportunity? In other words, will that be enforced in the way that it was under the CSA?
If an NRP passed the compliance test, it seems that they could opt to use direct pay to pay any arrears, as well as any CMS maintenance due. Is that correct? However, given that we do not know that they would be willing to pay CMS, would it not have made more sense, when the arrears do come across, for them simply to carry on with the same enforcement mechanism in the new system as was there in the old system? Since there are no fees for the parent with care for arrears collection anyway, that would not have had any implications for him or her.
On a separate point, will the Minister explain what enforcement methods will be used during the compliance opportunity for the bit that is being enforced alongside the voluntary partial payments? She mentioned using deduction from earnings orders, but there would be cases, such as self-employed non-resident parents, where a DEO was not appropriate. What other tools will be used for the enforcement part of that payment if a DEO is not appropriate? For example, will deduction orders or freezing orders or setting aside of disposition orders be available during the compliance period?
This is the first opportunity we have had to question the Minister about the progress of transition to the new system, so I would like to ask her some questions about how that is going. Can she tell the Committee how many cases have been closed in each segment so far? When does she expect to complete the bulk closure of segments 3 and 4? Can she tell us when the programme of closing all the CSA live cases is now expected to finish?
To come on to the point raised by the noble Baroness, Lady Manzoor, about child maintenance outcomes, will the Minister tell us how many parents affected by CSA case closure have transferred to CMS or made a private family-based arrangement or made no arrangement? This is crucial information. We want to be sure not only that people have decided not to move across but that they have some maintenance being paid. The figures in the public domain suggest that, up until the end of December 2015, around a quarter of a million CSA cases had received final notice of the ending of their CSA case. However, figures between January 2015—when the case closure started—to August 2015 showed that during that time only 22,000 applications had been made to the CMS from cases affected by proactive case closure, plus another 6,800 from reactive closure. That means that only 28,800 CMS cases had been started from January to August, when around a quarter of a million had had notice of the ending of their CSA case. I hope very much that does not mean that hardly anybody is using the new service, but the noble Baroness will understand why we would like to know that.
There is real concern from both within Parliament and outside, including from Gingerbread, which kindly provided us with a briefing, that the Government’s action in imposing fees and diverting people via advice services before they are allowed to use the new system could succeed in diverting them away from the statutory system without ensuring that they come to any other arrangements that would be necessary to protect the welfare of children.
Let me say a word on arrears more generally. About 70% of cases closed under the current closure programme were expected to have arrears according to the DWP’s own 2013 paper. The DWP arrears and compliance strategy suggests that they were a priority for collection because, by definition, there is still a child in the system able to benefit from the arrears because, of course, they are entering the new system. At the end of December, more than £92 million of CSA arrears was transferred to the CMS for collection, but Ministers have so far failed to provide any information about the extent to which these transferred arrears are now being repaid by non-resident parents or, indeed, collected by the CMS. So will the Minister please update the Committee on what is happening to those? How long will the arrears cleansing process take? In particular, on average how long is it taking from a case with arrears being closed, which parents with care want collected, before the arrears are transferred to the CMS?
I understand that parents with care who were preparing to move to the new scheme are being asked whether they still want to have arrears collected. Gingerbread tells me that parents with care are getting letters saying, “Some clients in a similar position to you tell us that they do not want their child maintenance to be managed by the new organisation and wish to make a fresh start by writing off their arrears”. Do I detect the hand of the “nudge unit” anywhere in the drafting of this letter? Is the letter being sent to all parents with care in that circumstance? Is the Minister at all concerned that this experience might put pressure on a parent not to apply to the new system, as if somehow she was doing the right thing in wanting a fresh start and she would not want the money owed to her child to be collected by the state, which had so far failed to collect it?
Mrs Thatcher, as Prime Minister, decided to set up the CSA because she believed that both parents had an obligation to pay for the upkeep of their children. They could divorce or separate from each other, but they could not divorce their children. It is the responsibility of the Government to demonstrate that, in their desire to save money running a child maintenance service, they have not reduced the incentive on non-resident parents to take responsibility for their children and reduce the incomes of their children as a consequence. I look forward to the Minister’s reassurance to the Committee on this matter.
My Lords, I thank the noble Baronesses, Lady Manzoor and Lady Sherlock, for their questions. I will try to offer reassurance and some responses.
Both noble Baronesses mentioned the issue of arrears. The aim of this compliance opportunity is to test behaviour. Once the compliance opportunity has been either passed or not passed, if the case moves on to direct pay, the parents will be able to agree among themselves how to deal with the arrears; if the compliance opportunity is failed, it is clear that we will need the collect and pay service to collect arrears as well. We are moving the segment 5 cases on to the new scheme before the arrears have been cleansed, so the arrears relating to such cases will still be being assessed and cleansed in order to be accurate while the parents are moved on to the 2012 scheme.
We are not offering the compliance opportunity on the previous scheme, as the previous Government originally suggested, partly because that would mean that we would be offering every parent the compliance opportunity, while not all parents will transfer to the 2012 scheme. From an efficiency point of view, that would not be optimal. Also, the cost of upgrading the old IT systems and the amendments that would need to be made to them to accommodate the compliance opportunity on the old system would be significant, so moving everyone on to the 2012 scheme is much more efficient and cost-effective from the taxpayer or funding perspective. We will also focus on those parents who will use the 2012 scheme rather than include all those who may have no intention of doing so.
I welcome the fact that the noble Baroness, Lady Sherlock, has no objection in principle to these changes. I will just refer to her question of clarification about the RDOs and the LSDOs, which I specifically tried to answer in the last part of my opening speech. It is not a policy change; this is merely to try to ensure beyond doubt that there is the ability to collect not just the maintenance and the arrears on the 2012 scheme but the fees and charges that are associated with the 2012 scheme. Obviously, I apologise if that was not clear, but I hope that I have now made it clear.
The 2012 scheme will still be statutory. If people are on the 2012 scheme, it is no longer merely a voluntary scheme—they will have paid their fee to be on it and it will be statutory.
As regards the tools for enforcement for self-employed people, which is an important issue, the vast majority of cases have earnings, but for those where there is self-employment the compliance opportunity will consist of allowing the non-resident parent to pay 100%, rather than 50%, by a non-enforced method. However, after any payment is missed, the usual enforcement action will be taken. Part of the issue here is that we are moving people on to the 2012 scheme—it is not reactive, where they have requested to come across. As I understand it, we are trying to make sure, in response to stakeholder representations, that we do not impose collection charges before giving people at least some chance to prove that they can be trusted to make the payments reliably.
On the question of the numbers and the timings, which the noble Baroness, Lady Sherlock, requested, given the range of data that the noble Baroness has asked for, I will write to her to confirm these points.
As regards the collection of arrears and why the compliance opportunity does not include payment towards the legacy arrears, as I have said, this compliance opportunity is primarily a measure of behaviour and is designed to give the non-resident parent the chance to show that they can proactively manage their child maintenance obligations. This is based on the belief that, the more parents we can encourage to agree among themselves arrangements such as maintenance, the better this is in the interests of the children.
So it is not a question of trying to force people, or cajole them against their will, with no purpose. The purpose of the exercise is to try to encourage more parents not to rely on a statutory scheme to enforce the collection of child maintenance but to have the ability to agree among themselves, while obviously, as the noble Baroness says, giving them this behavioural nudge and indeed the financial incentive to do more to come together, in the interests of their children, to arrange child maintenance. The noble Baroness is right that the Government are committed to this scheme in the interests of the children. That is the overriding and most important element of our efforts in this area.
I was asked how successful the new scheme is. It is too early to provide that analysis, but we will be completing the 30-month review by the end of 2016, and we are currently testing, assessing and investigating what is happening on the scheme. We have commissioned research that is being undertaken to identify the kinds of questions that the noble Baroness has rightly asked. The noble Baroness, Lady Manzoor, also asked for that assurance. I assure both noble Baronesses that we are investigating how the system is working and what is happening to the families who do not come across to the 2012 scheme, as well as what is happening to the families who do. However, it is early days.
On the question of the number of cases that are coming across, the migration of cases on to the 2012 scheme is being very carefully managed and assessed. Cases do not move over in large numbers until we are satisfied that the particular segment that is being moved over is doing so successfully. That is really important, given the experiences that we had with previous schemes, where there was perhaps a little too much hurry in managing large numbers of cases without ensuring that all the underlying systems and processes were in place to make sure that they would be handled successfully.
That is where we currently are. We are moving across and, so far as we can tell, the programme is going very successfully. It is being carefully handled and managed. We are also ensuring, as much as we can, that the order in which we are transferring cases across also helps to ensure that those who move on to the 2012 scheme are likely to have a more positive experience. That certainly seems to be the case: the number of complaints and queries is much lower than we might have expected.
The Child Maintenance Options service seems to be helping families to come together in the interests of their children and to understand more what needs to happen in order for them to be able to make a successful agreement. Child Maintenance Options has a calculator to help parents to work out how much maintenance needs to be paid; previously, they would often have been unaware of that, or would have had to have gone to court or have gone through some other procedure in order to assess it, but they can now do that themselves. Two out of three parents using the new Child Maintenance Service are already opting not to rely on the state to collect and pay maintenance on their behalf, so again the new system’s aim of significantly reducing the numbers of parents for whose child maintenance the state is responsible seems to be being achieved.
The other key element of the second phase of reform is that, with the closure of the existing Child Support Agency schemes of 1993 and 2003, cases are actively being moved across. We will then have just one system as we close down the old systems. This is a really important and fundamentally new reform, because in future everything will be on one system, instead of trying to piece together systems from the past that we know have had problems. We hope that we can manage this reduced case load more effectively—that is the aim—ensuring that more agreed and reliable payments get through to more children, while also reducing the costs to the taxpayer.
As I said, the outcomes will be evaluated and are being evaluated for the 30-month review. I hope that my explanation has been helpful, but I will reply to any further questions.
I thank the Minister for answering some of my questions but I confess to disappointment that she was not able to provide any figures at all, given that I gave her office a few hours’ notice that I would be asking for that information, which ought to be in the public domain. However, I shall look forward to the letter expressing the figures in detail.
There are two questions which either the Minister did not answer or I expressed poorly—I take full responsibility for her answering a different question from the one I asked. The first question was on the timing of the compliance opportunity. I was not trying to ask her—I apologise if I did—why she was not doing the compliance opportunity on the existing scheme, as opposed to the CMS. What I was asking was: why did the Government not delay the compliance opportunity until the arrears had been moved across as well as the ongoing maintenance, so that the compliance opportunity could then be done on the entire liability of both ongoing maintenance and arrears? She said that it was testing behaviour, but that tests only the willingness to pay a small amount of that, and the arrears may be significant.
As to the second question, I did not quite understand what the Minister said about why the Government did not want to use the compliance tools available to them on self-employed non-resident parents. What is the reason for assuming that they do not need enforcement in the way that employed parents do? She could, I presume, use deduction orders as they are used now. She did not explain why that would not be the case.
I will try to be a little more forthcoming with some figures, but, as I say, I will write to the noble Baroness with a more detailed reply. So far, 700,000 to 800,000 segment 3 and 4 cases have been moved across. When all cases are finished, there will be 800,000 to 900,000 cases expected to come over on to the 2012 scheme. I apologise to the noble Baroness that I may have omitted to answer the two specific questions that she asked me. It is not that she was not clear; it is that I was unable to keep up with all the questions.
The timing of the compliance opportunity is partly to ensure that we can successfully complete the migration of the old cases on to the new system in time to be able to close the existing IT systems before they run out of their usable life. There is a timing issue of requiring to get on with the compliance opportunity for segment 5 so that we can meet the end deadline for closing the 1993 and 2003 IT systems without incurring significant extra cost. If we were to delay until all the arrears had been cleansed on the old system, that might well take us beyond the period. By moving segment 5 across slowly now, we are trying to test how this compliance opportunity is working in a small number of cases, as I described earlier, and how the new system is working for those cases before we ramp up with these significant additional thousands of cases that still need to come across and meet the end deadline. This migration and the new system are being very carefully managed. It is a massive undertaking. We know the problems we have had with IT systems in the past, and we do not want those to happen with the new system.
Also, we would have had to either let everyone have direct pay or charge everyone for their ongoing maintenance. That is why we have not used the tools for the self-employed people. We are giving them the opportunity that we believe we have to give them. We cannot collect arrears until they have not paid. As I understand it, the deduction orders and the lump sum deduction orders will help us collect arrears but we cannot consider arrears from the old scheme as arrears in the new scheme, so we would either have to deem all the self-employed as unreliable payers, and therefore we could then enforce collection and charges, or give them the opportunity to prove that they are unreliable before we then take the fees for the collection and charges.
If further clarification is required, I will write to the noble Baroness. However, as I understand it, those are the bare bones of the issue. We can expand on that.
I thank noble Lords for their contributions to the debate and for their constructive approach to today’s proceedings. This Government are committed to ensuring that those parents who choose to apply to the statutory 2012 child maintenance scheme benefit from a successful and stable arrangement for payments in the interests of their children. Introducing a compliance opportunity will ensure that non-resident parents with a history of non-compliance should not access the direct pay service unless they have demonstrated a change of behaviour. This aims to help parents with care have confidence that their new arrangement will suit their circumstances and work in the best interests of supporting their children. I commend this instrument to the Grand Committee.
Occupational Pension Schemes (Scheme Administration) (Amendment) Regulations 2016
Motion to Consider
My Lords, in my view, the provisions in these regulations are compatible with the European Convention on Human Rights. By way of these draft regulations, we have responded to concerns raised by stakeholders by making some changes to ensure that occupational pension scheme governance requirements work as intended.
We already have over 6 million workers automatically enrolled into pension saving. We expect this to rise to around 10 million by 2018. Therefore, it is vital that pension schemes are well governed, particularly as most workers will not have made an active choice about their scheme or investments. With this in mind, we introduced new governance requirements from April 2015 in the Occupational Pension Schemes (Charges and Governance) Regulations. These cover occupational pension schemes providing money purchase benefits. They include annual statements regarding governance, certain requirements for processing financial transactions, appointing a chair of trustees responsible for signing the annual statement, and further requirements relating to the default arrangement. We also wanted to strengthen the independent oversight of schemes used by multiple employers, so in those regulations we introduced additional governance requirements for relevant multi- employer schemes. Under these requirements, relevant multiemployer schemes must have at least three trustees, and the majority of all trustees, including the chair, must be independent of providers of services to the scheme. These independent trustees must be appointed for limited terms and by open and transparent recruitment processes. The trustees must also make arrangements to encourage members or their representatives to make their views on matters relating to the scheme known to them. This could be done through members’ panels, annual general meetings or similar.
These additional governance requirements do not apply where the employers are part of the same corporate group, as we considered these schemes to be closer in nature to single employer schemes and thus less likely to require these additional member protections. These regulations amend the definition of “relevant multiemployer schemes” to ensure that it captures both commercial and industry-wide schemes that promote themselves to unconnected employers. Under these new regulations, a corporate group scheme may consist of one or more holding companies and subsidiaries of such companies.
We also made a temporary exemption from these additional requirements, until April 2016, for schemes set up by statute. This was because we wanted to carry out further work on their current governance arrangements before deciding whether this exemption should continue. I should also add that the National Employment Savings Trust is exempt from these additional requirements, as it already has rigorous governance requirements set out in law.
These governance measures cover occupational schemes offering money purchase benefits regardless of whether they are used for automatic enrolment or not. In addition, they exclude schemes where the only money purchase benefits offered are from additional voluntary contributions.
I recognise that pension law is complex and technical, and sometimes we need to change it to ensure that it does the job we want it to do. Since last April, some stakeholders have told us that the way in which we currently define a relevant multiemployer scheme has the unintended consequence of bringing corporate group schemes, which may undergo mergers, acquisitions or disposals, within the additional governance requirements, thereby causing an employer to become unconnected from the group. We have addressed these concerns by way of these draft regulations, which will amend the definition of a multiemployer scheme to ensure that such corporate activity does not bring a corporate group scheme within the additional requirements unless it promotes itself as open to unconnected employers.
I appreciate that the pre-existing governance arrangements for schemes set up by statute may be a good reason to continue their exemption from the additional governance arrangements. However, as I am sure the Committee will agree, we need to have better regulatory safeguards in place for the future across the pensions landscape. These draft regulations will not extend the temporary exemption for multi- employer schemes set up by statute. On balance, we considered that there was no significant reason to provide a further exemption from good governance standards. However, we will give such schemes up to six months to comply with the requirements for the appointment of independent, non-affiliated trustees.
We are also using these regulations to make some minor tidying-up provisions to ensure that the governance standards work as we want them to. They will remove the requirement for the chair of NEST to be appointed within a three-month timeframe, as this appointment is already covered by other statutory requirements and NEST has to comply with the public appointments process. They will also ensure that a deputy chair, or a person appointed by the trustees, can sign the annual governance statement if there is no chair in place—for example, if the chair has recently resigned.
We know that, for some schemes, certain provisions governing the appointment of trustees are set out in their trust deeds and rules, and these may conflict with what is required in the governance requirements on how independent trustees are appointed. We want to make it easier for these schemes to comply with these requirements and in these regulations we have introduced a statutory override where any provisions in trust deeds and rules conflict with the requirements for the appointment of independent trustees in multiemployer schemes.
Finally, these draft regulations will correct a typographical error in the Occupational Pension Schemes (Investment) Regulations 2005. This simply involves substituting paragraph “(9)” for paragraph “(8)” in the definition of “default arrangement” in regulation 1(2) of those regulations.
As required by the Small Business, Enterprise and Employment Act 2015 for secondary legislation that regulates business, these regulations will oblige the Secretary of State to review both the original governance requirements and the amendments made in this instrument, publishing a report within the next five years.
In conclusion, by way of these draft regulations we will be clarifying the scope of the governance requirements. These regulations will also ensure that the governance requirements are practicable for occupational pension schemes and multiemployer schemes in particular. I commend these draft regulations to the Committee.
My Lords, I thank the noble Baroness, Lady Altmann, for introducing these regulations in such a clear manner. We share the commitment to the importance of schemes being well governed. It is accepted that these regulations are generally focused on several technical amendments following on from governance requirements that were introduced last year, driven in part by the requirement to ensure that the growth of money-purchase schemes flowing from auto-enrolment is fit for purpose.
As we have heard, the thrust of these amendments seeks: to put beyond doubt that multiemployer group schemes are excluded from the additional governance requirements; to remove the chair of NEST from the required appointment timescale, because this is otherwise dealt with in statute; to allow a deputy to sign the chair’s statement when the latter is not in place; to enable a statutory override where scheme rules are in conflict with the trust deed requirements; and to let those schemes established by statute have a limited period to comply with the trustee appointments so that the current exclusion can expire—as well as some other tidying up.
We have no quarrel with those amendments, but seek clarification on just one aspect. In regulation 4, the substituted sub-paragraph (2ZA)(a)(ii), participating employers are “connected” if, inter alia, they are,
“are or have been partnerships, each having the same persons as at least half of its partners”.
The test seems to be a head count rather than being a sufficient commonality of shares of partnership activities. Is this what was intended?
That having been said, I should like to return to some points that my colleague, Angela Rayner MP, raised when these matters were debated in another place, particularly as they received scant response from the Minister in the Commons. Of course, we know that our Lords Minister, particularly being forewarned, will be able to do better. These issues concerned the growth of multiemployer schemes or master trusts. It was said that there is no official list of master trust providers although as many as 70 or 80 could be operating at the moment. What is the Minister’s understanding? My honourable friend cited two pieces of evidence given to the Work and Pensions Select Committee, one from the ABI and the other from the Pensions Regulator. The former pointed out that:
“Trust-based … schemes (including master trusts) … are not currently subject to the same stringent regulatory standards as contract-based schemes, which are regulated by the FCA”.
The latter pointed out that:
“Due to their scale, commercial purpose and design for use by multiple employers, master trusts represent different risks to members and consumer protection … master trusts themselves are not authorised prior to market entry and the regulatory framework is not designed for similar levels of ongoing supervision”,
unlike providers regulated by the FCA.
Does the Minister share these concerns? To what extent if at all has the position been ameliorated by the governance arrangements that we are discussing today? Is it satisfactory that the take-up of the voluntary master trust assurance framework seems to be so low? Does the Minister have an update on the previous figure of just five schemes? Is the Minister satisfied that the fit and proper persons test is being applied rigorously? Is it the case that master trusts are not protected either by the Financial Services Compensation Scheme or the Pension Protection Fund and is this an acceptable position?
The Minister will have read the Hansard record of other concerns expressed in the debate. I will not go over them all. It is understood that the Minister is on record as asserting that legislation is needed, particularly to deal with master trusts given their proliferation and the ongoing progress of auto-enrolment. We will have to wait and see what is in the Queen’s Speech in a few weeks’ time but one way or another, there are substantial issues here that need to be addressed.
My Lords, I thank the noble Lord, Lord McKenzie, for his remarks. I am grateful that he shares our commitment that schemes should be well governed and welcome that he has no quarrel with our proposed regulations on these measures. I shall try to respond to some of his questions.
The noble Lord asked if the Minister shares the concerns that have been raised, and I can tell him that the Minister does share those concerns. It is true that trust-based schemes are not subject to the same regulatory controls. The authorisation of master trusts and trust-based schemes is the responsibility of HMRC. There is a “fit and proper persons” test now, but clearly even if that is applied rigorously more protection may be required. That is under active consideration. Such schemes are not, unless they are defined benefit, protected by the Pension Protection Fund, and even if the assets are protected by the FSCS, it is true that the costs of winding up the scheme could be deducted from the protected assets. Therefore, there is still a requirement for us to make sure that we protect as many people as possible in auto-enrolment and protect their pensions. These regulations, however, will ensure that there are improvements in governance standards. They will ensure that multiemployer schemes are better run and will clarify the governance requirements, which of course are such an important part of our pension system, to ensure that trustees are in place who can protect the interests of members.
With regard to the figures, over 90% of members who automatically enrolled into master trusts have been enrolled into those schemes that had signed up to the master trust assurance framework, which ensures that some quality features apply but is not, in and of itself, sufficient as a guarantee. It is a good indication of well-run schemes. There are a number of large master trusts available for auto-enrolment, and the Pensions Regulator is obviously trying to signal to employers that they have been through some quality assurance testing. Again, that is important because the worker who is auto-enrolled into a pension scheme has no control over the scheme chosen for them by their employer. It is therefore essential that we help employers to know how to choose a good pension scheme for their staff that is safe and secure, and indeed that they do so.
Well-run master trusts can and do offer good value for consumers and their employers, and of course we are keen that this market develops in the right way. We are aware that there are some potential issues and, as I am sure the noble Lord is aware, we are working with the Pensions Regulator to improve protection and ensure that the right protection is in place, which is likely to require legislation. We will come back to the noble Lord when the measures can be further elaborated upon.
There are a number of governance requirements that master trusts already have to meet under the current law, and I believe that the voluntary master trust framework covers seven schemes—is that right? I understand that it covers five at the moment, but others are in the pipeline. Still, we need to be sure that we are exploring, and will succeed in achieving, other protections in addition to those that already exist as auto-enrolment moves forward. Currently the contribution levels are extremely low, but numbers will increase—contribution levels will be quadrupling by 2019—so we must ensure that we have protections in place for those who enter auto-enrolment in the coming years.
On the noble Lord’s question about the head-count issue in partnerships, the purpose of the definition of “connectedness” is to help schemes to establish the degree of connection within a corporate group or partnership. If they are sufficiently connected, it can be exempted from the requirements. The partnerships definition is designed to ensure that two employers that are partners share a sufficient number of partners—that is, at least half—in order to be connected. This is about not just numbers but connection. As long as the multiemployer scheme is multiowner only because of connected employers, it is treated more like a single-employer scheme, but if a scheme promotes itself to bring in other employers rather than just being within the group then it is a multiemployer scheme, and we are trying to clarify that with these regulations. We hope that that will be clear.
I will perhaps expand a little on the question, although maybe we should follow it up outside this session. I understand the thrust of employers needing to be “connected” for these purposes and, so far as partnerships are concerned, connection looks to be driven by a certain commonality of numbers of partners. However, numbers of partners may not tell you very much about where the weight and financial interest of any particular partner is. It would have been quite easy to construct something where you had a sufficient number of partners but all the clout and financial substance was with just one or two partners. I wonder how the “connected” rules would operate in those circumstances. I am afraid that this is a bit of a nerdy issue, and maybe we should deal with it outside this session if the Minister is not able to cover it fully today.
I am happy to try to cover it if the answers that I have given are not sufficient. One of the crucial tests here is whether a scheme is promoting itself to outside employers rather than being part of a group. If a company is being taken over or if shares are changing hands, but it is all within the same group, same company and same partners, it is likely to be considered a connected scheme rather than a multiemployer scheme and therefore exempt. However, if there are other issues that the noble Lord would like me to elaborate on outside this debate, I am happy to explore those.
I was not going to come in on this regulation but the Minister’s comments have prompted a question in my mind. If a company is in the corporate group and participating in a pension scheme—so it does not come under the definition of a multiemployer scheme—and that company then leaves the corporate group but continues to participate in that pension scheme, would that automatically transfer it to the status of a multiemployer scheme?
The noble Baroness raises an interesting point, which I myself have explored. It is the case that if an employer leaves a previous group but the employees are still part of that scheme, it will be considered a connected scheme because the members are still part of the same group. The group stays in the scheme, so in that circumstance it would still be part of the group rather than becoming a multiemployer scheme, as long as it is not then opening itself to promotion to attract other employees and employers. I hope that that answers the noble Baroness’s question.
I do not want to labour the point but I am still not clear in my mind: if you have a corporate group of companies and one of them literally is divested in some way, and it continues to use that pension scheme but is no longer part of the corporate group, what status does that trigger? I am happy to pursue this question offline.
Regarding these regulations, as I have just described, if employers that are outside the group can fit within these corporate scenarios—that will include where an employer was part of the corporate group but has now left the group and continues to participate in the scheme—they are considered a corporate group scheme.
I thank the noble Lord. I am grateful for noble Lords’ careful attention and scrutiny of these draft regulations. We believe that good governance is fundamental to securing good member outcomes and these draft regulations will help ensure that schemes are better run, in members’ interests. The regulations that we have put forward today will make amendments that will help to clarify the scope of the governance provisions. I am grateful for Members’ contributions to this debate. I hope I have set out the need for these regulations, and have responded as best as I can to the matters raised. If necessary, I will continue to answer any further questions that noble Lords may have. I commend these draft regulations to the Committee.
Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2016
Motion to Consider
My Lords, this order, which was laid before the House on 8 February 2016, reflects the conclusions of this year’s annual review—required by the Pensions Act 2008—of the automatic enrolment earnings thresholds. The review considered both the automatic enrolment earnings trigger, which determines the point when someone becomes eligible to be automatically enrolled into a workplace pension, and the qualifying earnings band, which determines the earnings levels in relation to which the enrolled employee and their employer have to pay contributions into a workplace pension.
The order sets a new upper limit for the qualifying earnings band and is effective from 6 April 2016. The earnings trigger and the lower earnings limit are not changed within this order. The lower earnings limit remains as set in the Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2015. The earnings trigger also remains that set in the Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2014.
Automatic enrolment continues to make workplace pension saving the “new normal”. The proportion of those enrolled who later choose to opt out remains low, at 9%, according to the Employers’ Pension Provision Survey 2015, which is well below the original programme assumption of 28%. Our new awareness campaign, launched in October 2015, Don’t Ignore the Workplace Pension, builds on previous campaigns that sought to normalise pension saving among individuals and is designed to prompt employers—small and large—to find out about their duties and the process of automatic enrolment.
Automatic enrolment continues to bring into its target group those least likely to save for retirement. Low-paid workers and women, who are often likely to be low earners, have traditionally been underrepresented within workplace pension savings. Since 2011 the private sector has seen a 24-percentage-point increase in eligible female participation in workplace pensions, and in 2014 there was no gender gap in participation, with 63% of both eligible men and women participating.
This positive trend is expected to continue as we enter automatic enrolment’s most significant stage: the phased rollout to small and micro employers from now on. Last year saw the successful staging of the first tranche of small and micro employers. Over the next 12 months, more than 700,000 small or micro employers are projected to have started enrolling their employees into a workplace pension. Many tasked with this legal duty are not commercial enterprises but individuals who employ single members of staff, such as nannies, home helps or personal care assistants. At this crucial stage of implementation, it is therefore more important than ever that when deciding the thresholds for joining and contributing to a workplace pension we strike the correct balance between minimising the administrative burden on employers and ensuring that as many people as possible save in a workplace pension.
To describe the impact of the order, I turn first to the qualifying earnings band. This sets the earnings levels within which an automatically enrolled employee and their employer have to pay a proportion of the employee’s income into a workplace pension. Past reviews have generally linked this to the national insurance bands and this has been uncontroversial. As I signalled in my Written Ministerial Statement on 15 December 2015, the lower limit for the qualifying earnings band will remain unchanged and aligned with the national insurance lower earnings limit of £5,824. This order will align the qualifying earnings band upper limit with the new national insurance upper earnings limit of £43,000. By maintaining the alignment with the national insurance thresholds, both at the point where contributions start for low earners and are capped for higher earners, the overall changes to existing payroll systems are kept to a minimum. This decision therefore both ensures simplicity and minimises the administrative burden of compliance for employers in 2016-17.
The order does not change the earnings trigger. This remains at the value set in the 2014-15 order. This trigger is the earnings level at which individuals are eligible to be automatically enrolled into a workplace pension scheme by their employer. We have decided to maintain the existing automatic enrolment earnings trigger for 2016-17, so it will remain at £10,000. Due to anticipated wage growth, and with maintenance of the earnings trigger, we expect that an additional 130,000 individuals will now meet the earnings criteria and be brought into the automatic enrolment population. Of these, we estimate that 71%, or around 91,000, will be women. Individuals earning below the £10,000 earnings trigger but above the lower earnings threshold will still have the option to opt into a workplace pension and benefit from their employer contributions, should they wish.
In conclusion, the decision to maintain the earnings trigger at £10,000 will increase the number of low earners and women who meet the earnings criteria, and who are therefore automatically enrolled into a workplace pension. This decision will increase the total numbers saving into a pension and total savings. It is expected to further increase the number of women eligible to enrol, or be re-enrolled, into a workplace pension.
The decision to maintain the alignment of the lower and upper earnings qualifying bands with national insurance contributions thresholds maintains simplicity, and ensures that there are no new potential administrative burdens on employers at a crucial stage of the programme’s wider rollout. The order therefore ensures that automatic enrolment will continue to provide greater access and opportunity for more individuals to save into a workplace pension with the help of their employer, and those enrolled will have a chance to build up meaningful pension savings. I commend the order to the Committee.
My Lords, these regulations provide an annual event for me. While I consistently recognise the success of the department in rolling out auto-enrolment, and we have all been pleased by the power of inertia to sustain low levels of opt-out, in previous years I have been increasingly frustrated by the number of women being excluded from auto-enrolment because of the rather aggressive way in which the earnings trigger was increased. Last year I came with a little more humility and was pleased to see that the earnings trigger was being maintained at £10,000 rather than tracing the tax threshold, and of course I am pleased that it is being maintained at £10,000 again. Those are the positives, and I am a “half full” person, but even a “half full” person still wants the extra half-glass that remains empty. I continue to remain concerned that only 38% of the eligible auto-enrolment population are women. In my view, that is still too low. A core principle in designing the new private pension system was that it should work for women, and I do not think that that principle is being met with in that percentage level.
Whenever there has been a discussion with the Government on the earnings trigger and why they chose to put it so high, three reasons have been put forward. One is that small amounts of savings may be inefficient for the industry; I will not dwell on that, other than to say that I find it an intensely irritating argument. The second is that the earnings trigger being set at the level of the income tax threshold makes it administratively easier for employers, but that reason has not held for the past two years. By freezing it at £10,000, more women have been brought into auto-enrolment than would otherwise have been the case.
The key argument that keeps dominating this debate as to where the earnings trigger should be is that low earners, when they retire, will get sufficient replacement income from the state so they do not need to save. I have three problems with that reasoning. Many women who earn below £10,000 will not work part-time all their lives but will have patterns of employment where sometimes they work full-time and sometimes part-time, and their persistence in saving during those periods when their earnings fall is very important. Many women on lower earnings are in households where the household income can clearly support them in their saving.
I believe fundamentally that women on low earnings should still be able to build up a pot of long-term saving in their own right. I really do not buy into the argument that being on low earnings somehow gets a mental wrap of “pin money” around it, because their savings will be supported by an employer contribution and may well be supported by the tax credit system. The argument for women on lower earnings being able to build up a pot of savings in their own right is even more powerful now that we have pensions freedom because, with auto-enrolment, funds go into a long-term savings product, not into a pension product as such.
So I make my annual plea: I still think that the attitude towards low-income women that is brought to bear in the private pension system is wrong and still excludes too many women. Obviously, I am pleased that the earnings trigger is being held at £10,000—that is a positive—but too many women are excluded from auto-enrolment.
My Lords, I thank the Minister for introducing this order. We support the progress which has been made on auto-enrolment and we should take this opportunity to pay tribute to those who helped to create it. My noble friend Lady Drake was there at the start, or indeed before it, and she has expressed her concerns that the system still does not seem to be dealing adequately with the concerns and needs of low-paid women. It will be interesting to hear the Minister’s response to all that.
In her introduction, the Minister referred to the fact that those between the LEL and qualifying earnings can opt into the system. Do we have any data about how many actually do that? I think she cited that there was equality in 2014, in so far as 63% of eligible men and 63% of women opted in. The trouble is that the numbers of men and women were not equal, which meant that many more men opted in, so her statistic was a bit unfortunate.
As my noble friend Lady Drake has recognised, freezing the earnings trigger for a second year has a modest impact in drawing more people in and will help women, who are of course disproportionately represented among the lower paid and have missed out on auto-enrolment previously. One of the effects of freezing the trigger at £10,000 is a widening gap between the contributions and the income tax threshold, which means that, as a practical matter, those who are on the net pay tax relief arrangements are not actually getting effective tax relief. There are, of course, two ways in which you can get your tax relief: one is through the net pay arrangement and the other, the name of which escapes me—
It is indeed relief at source. I am grateful to the Minister. What is happening to try to ensure that those people who are subject to the net pay arrangements are getting their tax relief? I am not quite sure what the arrangement with NEST is. I think that relief at source, which generally operates for NEST, will obviously cover a good many people, but how many people are missing out? These are people at the low end of the income scale who are not getting their tax relief, which was an important ingredient of the overall arithmetic.
Has there been any progress on aggregating mini-jobs for the purposes of the trigger and qualifying earnings band? If our noble friend Lady Hollis were here rather than in the debate on the Housing and Planning Bill, she would be on her feet extensively.
It was about people with mini-jobs being able to aggregate to reach the thresholds. We understand some of the practicalities, but has any progress been made on that?
I have another question to which I genuinely do not know the answer, about the impact of zero- hours contracts and fluctuating earnings on take-up arrangements. Looking at the varying pay periods, how does this work when somebody is within a pay period and above the threshold for one month but not for the subsequent period, so that they fluctuate in and out of the system? I think those were all the questions that I had. We will obviously not be opposing these provisions, and I look forward to the Minister’s response.
My Lords, I thank the noble Baroness, Lady Drake, and the noble Lord, Lord McKenzie, for their excellent contributions. I certainly join in the tribute paid to the noble Baroness by the noble Lord for her role in setting up and being responsible for the successful programme of auto-enrolment.
I am delighted and welcome the fact that the noble Baroness welcomes the decision to freeze the earnings trigger. I am also delighted that she is as pleased as we are with the low opt-out rate and that, so far, this programme has indeed been a real success. All the points raised by the noble Baroness are valid, and are ones that I have raised in the past. However, there is a further reason why we have to be mindful of where we set the earnings trigger, and be very careful as we move forward with this policy not to derail what is already such a success. Part of the reason why it is such a success is that there is widespread consensus among employers as well as the pensions industry that this is the right thing for the country. Employers have accepted—willingly, in many cases—the idea that it is normal, and should be normal, for an employer to be responsible for not only the national insurance and tax of their employees but also a pension for their workforce.
However, as the noble Baroness knows, that consensus was hard won. It was the result of a very long period of negotiation and renegotiation, part of which concerned the costs to the employer. Although the earnings trigger is higher than might have been expected a few years ago, we have put other burdens on employers. Were we to reduce the earnings trigger significantly at this stage, given that we have the rollout of the national living wage, the apprenticeship levy and other elements that will impact on employers’ labour costs, it would be right to be mindful and careful about how quickly we move to include significantly more people in pension saving. However, notwithstanding that, as I said, 130,000 more people will be brought into pension saving—71% of whom are expected to be women—as a result of keeping the earnings trigger at the £10,000 level rather than moving it up, as was one of the considerations.
The noble Lord, Lord McKenzie, also referred to women. I once again confirm that the coverage of pensions for eligible workers is the same for women and men. As most noble Lords are probably aware, I would certainly like to see more women being brought into auto-enrolment. In time, I am sure that we will be able to do that. Of course, they can now opt in anyway if they are earning more than £5,824 a year and receive an employer contribution. That still means that they do not get the same behavioural nudge, but I can report that the latest figures suggest that 5% of those who are not eligible and are earning below the relevant figure are opting into their employers’ pension scheme. It is a start. I hope that, in time, we will go further as we establish this as the norm and as more workers become aware of the fact that this could be effectively free money from their employer, and that a significant extra contribution on top of their own pension savings is on offer if they wish to take it up. Of course, it takes time for those messages to come through.
As the noble Lord may well be aware, the issue of net pay arrangements is something significant that I have raised since I became aware of it a few months ago. Clearly, it is not acceptable that the very lowest earners might be required to pay about 20% to 25% more for the same pension as someone who earns more than them. That is the potential result of their employer choosing to use this net pay arrangement-type of scheme rather than a relief-at-source scheme.
I have been very clear, and the regulator has made this much clearer on its website, about helping these small and micro employers that are coming into auto-enrolment now to understand what this all means for their lower earners. It is not unreasonable to expect that large firms, which employ advisers and have their own HR departments, would understand the implications of this, but for a smaller employer coming in now, who in many cases has probably never heard of pensions or had their own, it is really important that they choose the right scheme for their staff. If they have no low earners, it is not a problem, but if they do then the regulator is making it much clearer on its website that a net pay scheme will cause those lower earners to pay a lot more for their pension. Of course, a net pay arrangement is better for higher earners.
I can confirm that NEST offers only a relief-at-source scheme. In the past few months, the People’s Pension has decided that it will default all employers that do not choose into a relief-at-source scheme, although it offers both. It is important for us to ensure that we all help low earners, who probably do not understand how this works and who are at the mercy of their employer, which chooses the scheme on their behalf, to move themselves and to have the best possible chance to accrue the best possible pension if they choose to stay in, or even if they are choosing to opt into, their employer’s scheme.
The issue of multiple mini-jobs is one that is exercising me, not just from the pensions perspective but from other perspectives as well. I assure the Committee that we are working on these issues. However, with pensions it is not easy to see where the responsibility could lie. If an individual does not earn more than £10,000 in any single job, even if they earn more than that in total in more than one job, who would have to pay the contributions and how would that be assessed? Each employer may not know what the worker earns with another employer; they know only what the worker earns with them. The worker themselves, as I have said, can choose to opt in if they are earning enough and want to take advantage of this employer contribution to their pension. The analysis from the Department for Work and Pensions for the year 2014-15 shows that 490,000 workers with multiple jobs who have total earnings above the automatic enrolment earnings trigger are aged between 22 and state pension age, and just 160,000 of those are ineligible for automatic enrolment because they earn less than the earnings trigger in any one of their jobs.
We have an opportunity to get clear messages to those—generally women—who have more than one job to encourage them to opt into their employer’s scheme. Again, that is under consideration as another phase of our public messaging to explain and promote automatic enrolment as we move forward. However, we have an enormous amount of work to do on automatic enrolment already as we roll forward and try to ensure that these 1.8 million small and micro employers, which have yet to start between now and 2018, successfully do so without being fined and without letting their workers down, and manage to cope with the auto-enrolment system.
The issue of female participation in pension schemes is of course skewed to some degree by public sector pension schemes, where coverage for women is so much higher than it is in the private sector. However, I have been very encouraged to see that the coverage for women in the private sector is increasing so much faster than for men. We are closing the gap; I am not saying that there is not a gap, but we are closing it. I therefore hope that the noble Baroness and the noble Lord will take comfort from the fact that we seem to be moving in the right direction.
On the issue of zero-hours contracts, I am happy to write to the noble Lord but, as I understand it, workers who are on variable incomes can be reassessed each month so that those who qualify above the required trigger can be opted in one month, but if they do not earn sufficient the following month they may not be. This is a payroll issue, and I would like to come back and write to the noble Lord with more specific details.
I thank noble Lords for their contributions to this debate and for the constructive approach that they have taken, once again, to today’s proceedings. This order increases the automatic enrolment upper qualifying limit to £43,000 and therefore maintains the automatic enrolment qualifying earnings bands, both at the top and at the bottom ends, with the limits for national insurance contributions. Both the lower qualifying earnings limit and the earnings trigger remain at their existing levels so they are not uprated in the order.
The combined effect of these decisions is that the number of individuals saving through automatic enrolment will increase, bringing more low earners and women into workplace pensions. As a result, total pension savings will also increase, which is of course important and an example of the success of the current programme. Our approach aims to be administratively simple, which is important, as I have said, as automatic enrolment reaches the smallest employers across the country, who are least able to manage pensions complexity.
I hope that I have set out for the Committee the need for this order and have responded to the matters raised. I commend this draft order to the Committee.
Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2016
Motion to Consider
My Lords, with the permission of the Committee I will henceforth refer to the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2016 as “the order”. The order under consideration today makes changes to the respective regulatory frameworks for mortgages and peer-to-peer lending. I will begin by talking about the provisions that relate to the regulatory framework for mortgages before discussing the provisions relating to peer-to-peer lending.
In March 2015, Parliament approved the Mortgage Credit Directive Order, which ensures that the UK implements the EU mortgage credit directive on time and with a limited impact on the UK mortgage market. The Mortgage Credit Directive Order 2015 is due to come into effect on 21 March this year. Since that order was made, the Government have been monitoring the progress of the mortgage industry towards implementation. During the course of this ongoing monitoring, it came to light that there were some areas where the Mortgage Credit Directive Order did not achieve what was intended or where it could be improved on. The Government acted quickly and laid a statutory instrument, which was made in November 2015. This made a small number of amendments to the scope of regulation to ensure that the regulatory framework continued to operate as intended.
The order under consideration makes further changes, which aim to ensure that the legislation delivers on previously agreed policy. This order clarifies the regulatory status of a number of categories of loans entered into before April 2014. Specifically, it clarifies that the regulatory status of these loans depends on their regulatory status under the consumer credit regime, before the transfer of regulatory oversight to the Financial Conduct Authority.
Since the transfer of the consumer credit regime from the Office of Fair Trading to the FCA in 2014, much of industry has assumed that the legislation applied the principle of “once regulated, always regulated” to loans entered into before April 2014. This is a different test from that which is generally applied under the FCA regulatory regime, where regulation is applied to ongoing activities, with the regulatory status of those activities changing over time.
Following engagement with both the industry and the FCA, we have been made aware that there is ambiguity as to which test now applies to some loans entered into before April 2014. This means that there is also ambiguity as to the loans that are to be moved across to the mortgages regime when the mortgage credit directive comes into force on 21 March. This order will remove that ambiguity. Providing clarity as to the regulatory status of these loans will ensure that their holders are able to assess accurately what regulatory permissions they require. Furthermore, it will ensure the continuation of consumer protections, preventing consumers inadvertently losing regulatory protections that they had at the point when they took out a loan.
In 2014, the Government removed English and Scottish housing associations’ new second-charge mortgage lending from the scope of conduct regulation. This order also exempts second-charge mortgage loans made from April 2014 by Northern Irish and Welsh housing associations.
Turning to the peer-to-peer amendments included within this order, it will extend the scope of the regulated activities relating to the operation of peer-to-peer lending platforms and the provision of advice on lending through such platforms. I shall begin by addressing the changes to providing advice on peer-to-peer loans. The Government want to support savers and to increase the choice available to ISA savers. To support this aim, the Government announced at Budget 2014 that loans made through peer-to-peer platforms will become ISA-qualifying investments. From 6 April, repayments of interest and capital made to lenders on new peer-to-peer loans will qualify for tax advantages where those loans are held in a new type of ISA—the innovative finance ISA. The Government anticipate that this could significantly increase the provision of advice to investors on peer-to-peer lending.
This order will align the treatment of advising on peer-to-peer loans with other ISA-qualifying investments by making the provision of advice to lenders on entering into such a loan a regulated activity. The consultation on these changes identified broad, industry-wide support for this change, which will ensure that the FCA is able to make rules so that firms providing advice to investors on peer-to-peer loans act properly and in the best interests of their customers. This will mitigate the risk of unregulated firms setting up and acting improperly in providing advice to consumers.
The order will also extend the scope of peer-to-peer regulation to ensure that all the relevant activities are included within this framework. In particular, it brings the activity of facilitating the transfer of rights under a peer-to-peer loan between lenders on a secondary market within scope of the Article 36H regulated activity. This means that a peer-to-peer loan brought on the secondary market will be subject to the same regulatory framework as new loans originated by peer-to-peer platforms. The order also clarifies the definition of an Article 36H agreement, or peer-to-peer loan, by changing it so that if the peer-to-peer platform is the lender or the borrower on its own platform, the agreement is not a peer-to-peer loan. This will ensure that peer-to- peer lending remains truly peer-to-peer lending. These amendments are an example of the Government’s proportionate and flexible regime in action, providing the space for peer-to-peer platforms to grow and provide competition to the major banks, while maintaining the right level of protection for consumers.
Finally, the order will make a minor amendment to the Small and Medium Sized Business (Finance Platforms) Regulations 2015. These regulations set out the circumstances in which designated banks must refer unsuccessful SMEs that have applied for finance to online platforms, to assist in finding other sources of finance. The amendment clarifies that where a small business is already using a broker to seek finance on its behalf, unsuccessful applications by that broker do not need to be referred to finance platforms. Taken together, the changes made by the statutory instrument under consideration are another important step in ensuring that the UK’s financial system is resilient, competitive and works for the good of the nation. I commend the order to the Committee.
My Lords, it is a pleasure once again to be in Grand Committee responding to a Treasury order so skilfully presented by the noble Lord, Lord Ashton of Hyde. The instrument is composed of three main issues: the first relates to the regulation of peer-to-peer lending; the second to provisions regarding the EU mortgage credit directive; and the third to clarifications surrounding small business finance. We will not be opposing the order today, but there are a number of questions that I would like to put to the Minister. The majority of my comments will be on peer-to-peer lending, particularly in the light of the recent publication of the FCA discussion paper on this issue, as well as the way in which the Government intend to carry out the commitments they made during the consultation process with peer-to-peer lenders and other interested parties.
From next month, the innovative finance ISA will be introduced for certain types of peer-to-peer lending, and advice to lenders entering into peer-to-peer loans will become a regulated activity. This is a welcome move. As the Financial Services Consumer Panel stated:
“It is important that anyone considering saving in a peer-to-peer ISA understands the risks associated with it, and they should be covered by appropriate levels of protection”.
However, there are questions as to whether or not this advice will be in place by April. The Yorkshire Building Society has estimated that more than 400,000 savers are expected to invest in this field. However, there were questions about the readiness of the financial advice sector to advise on the new products.
At the end of February, the Financial Times reported that the UK’s three biggest lending platforms have not yet been granted their status as fully regulated authorities by the Financial Conduct Authority, despite submitting proposals in October 2015. With only a few weeks before the ISA is introduced, will the Minister update us on how many peer-to-peer lenders have been granted authorisation status?
I turn now to the secondary market and the Financial Services Compensation Scheme. In their response to the consultation, the Government stated that:
“Due to the illiquid nature of peer-to-peer loans and the fact that a secondary market for every loan cannot be guaranteed, the government has decided not to require that investors should be able to withdraw any non-cash investments from the Innovative Finance ISA within 30 days. However, this should not preclude platforms that can facilitate withdrawals via their own secondary market from doing so”.
In the light of this decision, Andy Caton, executive director at Yorkshire Building Society, said:
“It is important that those who opt to invest in the new type of P2P Isa realise how different it is from the existing choices and that they will not receive Financial Services Compensation Scheme protection, access to their money could be difficult if required sooner than expected and, in extreme cases, could lose interest and capital”.
The FCA has declared its intention to consider whether the remit of the Financial Services Compensation Scheme should be extended to include peer-to-peer lending in 2016. Given this, will the Minister clarify the Government’s own opinion on covering peer-to-peer investments through the Financial Services Compensation Scheme? Will he clarify when he understands that the FCA will carry out this review and whether the required advice that this order provides will be extended to the secondary market?
Before turning to mortgage lending, I shall address the issue of set-up and ongoing costs in relation to the innovative finance ISA authorisation. The summary of the consultation document sets out clearly that of those respondents who answered question 1 on set-up costs, the majority predicted that they would have costs of £50,000 or more. These costs would include building the necessary technology platforms and legal advice, as well as costs to fund the ongoing operation through additional staffing and platform maintenance. In response, the Government committed that:
“Where available, further details of the potential costs to businesses of including peer-to-peer loans within ISA will be set out in a Tax Information and Impact Note, to be published alongside draft legislation later this year”.
I note that the only costs to which the Explanatory Memorandum refers are in paragraph 10.2. The Government estimate that there will be a one-off set-up cost of £1,500 and a £2,545 annual cost. Can the Minister explain why the Government’s predicted costing and the industry’s differ so significantly?
The second aspect of the order relates to the EU mortgage credit directive and is due to come into force next Monday, 21 March. As the Minister implied, this is the second order relating to this directive, it having originally been discussed on 19 March 2015. The directive provides for minimum regulatory requirements to protect consumers taking out credit agreements relating to residential property. It also imposes maximum standards on member states, particularly the provision of information in a standardised format for consumers.
As I said last year, these are entirely sensible provisions. However, the reason why we are returning to this issue is because, following engagement with those in the industry, there are a number of areas where legislative change is necessary in order to ensure that the objectives of the directive are achieved. The Government have decided to create a transitional period until 21 March 2017 before first charge mortgages that were entered into before 31 October 2004 and are currently regulated as consumer credit agreements must be regulated as mortgages. It is worth quoting the Financial Services Consumer Panel, which said last year that ahead of full implementation,
“there are challenges for firms in managing the shift to the new regime because of the relatively long sales process for mortgages”.
At the time it was made clear that the Government would consider whether further steps were necessary to smooth the process, so it is encouraging to see that they have done just that. With whom have the Government been engaging in order to come to this decision? Were the relevant stakeholders consulted in the drafting of this order?
Turning to buy-to-let mortgages, these are not generally subject to conduct regulations. However, the EU directive will introduce a new category of consumer buy-to-let lending that will be subject to regulation. Customer buy-to-let mortgages, as opposed to those taken out for business reasons, will be defined as loans for a property that is rented out but not,
“wholly or predominantly for the purposes of a business”.
This would be a family member living in the property, or intending to live in it in the future. Will the Minister go into more detail about how regulators intend to make this distinction between the two? What information will they ask of consumers in order to make this judgment, and how many mortgages do the Government anticipate will be impacted by this provision?
The third matter covered by this order relates to small business lending. The effect of this instrument is to exempt applications from referral to business platforms that are made by a broker instead of directly by a business. It would therefore be the responsibility of the broker to provide advice. How confident is the Minister that this advice will be provided, and do the Government expect this measure to have any impact on the ability of SMEs to access finance in general? As I said at the beginning, we will not oppose this order and are conscious of the implementation deadlines. However, I would be grateful if the Minister would address the issues that I have raised.
My Lords, I thank the noble Lord, Lord Tunnicliffe, for his kind words, his questions and for agreeing to support—or, at least, not oppose—this order. He asked a number of very reasonable questions which I will do my best to answer. He asked how many peer-to-peer lending firms had been granted authorisations. The FCA has authorised seven P2P firms to date, so they will be able to offer the innovative finance ISA, should they wish to do so. The FCA is also currently considering a number of applications for authorisations, both from firms that wish to operate peer-to-peer platforms as well as those currently doing so on the basis of interim positions. It is important to stress that the FCA has a responsibility to authorise only those firms that meet its threshold conditions. It is trying to do so as quickly as possible before the implementation date and has increased the number of people working on these applications. However, it is important that the FCA does not lower standards before the implementation date, given that we hope this provision will last for many years. As I say, the relevant figure to date is seven.
The noble Lord asked whether the P2P loans within the ISA would be protected by the Financial Services Compensation Scheme, and asked for our views on that. Peer-to-peer lending is currently not covered by the Financial Services Compensation Scheme. We want the regulatory framework for this new P2P lending to be proportionate, especially when it is young and growing. It would increase regulatory costs if it was included in the scheme, so at the moment it is not currently considered proportionate to do so. However, the FCA is committed to reviewing that framework in 2016, and during that will consider again whether those P2P loans should be within the remit of the FSCS.
There was a question about the cost on the innovative finance ISA of introducing this scheme. The problem is that the relevant figures do not refer to the same costs. The Explanatory Memorandum refers to set-up costs and FCA fees for firms applying for authorisation to undertake the new regulated activity of providing advice, but the consultation estimate refers to firms intending to offer the IF ISA and includes costs such as setting up the IT infrastructure and hiring additional staff who may be required to offer and run the scheme. We expect that firms which incur those extra costs would benefit from doing so but the decision whether to do that is, of course, a commercial decision for them.
The noble Lord asked with whom the Government have been engaging in the lead-up to the implementation date and whether relevant stakeholders were consulted. The changes today—as the noble Lord mentioned, in some cases the second round of changes—are a result of continuing engagement, and one of the benefits of laying the orders well before the implementation date was to allow us to engage with the industry and regulators. In particular, during that time, we have worked closely with the Council of Mortgage Lenders and, obviously, the FCA itself.
There was an issue about how the regulators intend to make the distinction between consumer and business buy to let, and what information they will ask of consumers to make this judgment. It will be for the mortgage lenders and brokers themselves to identify the type of lending they are engaged in. That means that they will need a system in place to collect the relevant information from the borrower. The main implementing order, as I said, has been in place for a year, so they should have had time to put such systems in place. The regulators will, of course, need to be satisfied that those lenders are doing this properly, but they are not intending to prescribe a particular process as part of their proportionate regulation.
I will have to come back to the noble Lord on that in due course, when I have got some advice myself.
On the number of mortgages that the Government anticipate will be impacted by these new provisions for buy-to-let lending, the introduction of the regulatory regime for consumer buy to let will not affect the vast majority of buy-to-let loans because they are predominantly taken out for business purposes. The impact assessment suggests that 11% of buy-to-let loans will be subject to this new regulatory framework. Based on the level of buy-to-let lending in 2015, this would equate to around 28,000 transactions. My advice is that I will have to write—I could have said that myself.
The last question that the noble Lord asked related to the last item that this order introduced in connection with the Small and Medium Sized Business (Finance Platforms) Regulations, which ensures that an unsuccessful application for finance made by brokers on behalf of small business is out of the scope of the regulations. That means that they do not need to be referred to finance platforms. The point here is that the business that is seeking alternative finance—not just from the big lenders—is already using a broker, who is able to advise on alternative sources of finance. The broker fulfils a role analogous to the finance platform and, of course, is incentivised to provide that advice and seek alternative sources of finance. We feel that nothing would be gained by requiring a bank to refer a failed application to the broker, so the Government do not feel that this will impact the amount of advice on alternative finance available, which they have increased by the finance platforms regulations.
I think that I have answered most of the questions, except whether the regulator provides advice, on which I will write to the noble Lord. Based on his helpful comments, I ask the Committee to join me in supporting this statutory instrument today.
Disabled Persons’ Parking Badges (Scotland) Act 2014 (Consequential Provisions) Order 2016
Motion to Consider
My Lords, I beg to move that the draft order laid before the House on 22 February 2016 now be considered. The statutory instrument before us is made under Section 104 of the Scotland Act 1998 and in consequence of the Disabled Persons’ Parking Badges (Scotland) Act 2014, which I shall refer to as the 2014 Act and which makes provision about badges for display on motor vehicles used by disabled persons. These are commonly referred to as blue badges.
One of the main aims of the 2014 Act is to help tackle blue badge misuse by providing additional powers to local authorities and the police to enforce the blue badge scheme in Scotland. The 2014 Act strengthens enforcement powers, including the ability to cancel or confiscate a badge in certain circumstances, and provides for security features of the blue badge format to be approved administratively by the Scottish Ministers. While eligibility for badges, scheme administration and enforcement measures vary between Scotland, England and Wales, there is overall agreement between each of the Administrations and their respective local authorities to work together on the common parts of the blue badge scheme. This has seen the creation of a shared database, used by local authorities for the production of badges, which allows local authorities to enforce the scheme across Great Britain.
The Disabled Persons’ Parking Badges (Scotland) Act 2014 (Consequential Provisions) Order 2016, which I shall refer to as the draft Section 104 order, will ensure consistency throughout Great Britain with regard to the validity of blue badges issued in Scotland and give full effect to the 2014 Act. This will produce certain practical results so that, for example, a badge issued by a local authority in Scotland will, for the purposes of the law in England and Wales, be in valid form if it meets the new requirements being provided for in Section 1 of the Act. This will also ensure that enforcement officers are able to confiscate badges which are being misused and have been cancelled by a local authority in another area of Great Britain.
I will now seek to set out for the Committee what the order seeks to achieve and why it is felt to be an appropriate and sensible use of the powers under the Scotland Act 1998. Section 104 of the 1998 Act provides for subordinate legislation to be made by the UK Government which contains provisions that are necessary or expedient in consequence of any provision made by, or under, an Act of the Scottish Parliament. In this case, provision is required in consequence of provision made by the 2014 Act, which received Royal Assent on 24 September 2014.
The order extends to the law of England and Wales the effect of certain amendments made in Scots law by the 2014 Act. The amendments in question are amendments to Section 21 of the Chronically Sick and Disabled Persons Act 1970, which provides for disabled people and their carers to be issued with badges entitling them to certain parking concessions. Section 1 of the 2014 Act changes the rules about the form that a badge issued in Scotland must take if it is to be recognised as a valid badge. Badges issued in Scotland are recognised in England and Wales. Article 3 of the order therefore reproduces in the law of England and Wales the effect of Section 1 of the 2014 Act, so that on both sides of the Scottish-English border the same rules will apply for the purpose of determining whether a badge issued in Scotland is in valid form. I should add that the same applies in respect of Wales.
By virtue of Section 2 of the 2014 Act, Scottish local authorities are able to cancel badges which they have issued in certain circumstances. A badge which has been cancelled by the Scottish local authority that issued it should not be recognised as a valid badge in England and Wales. Accordingly, Article 3(3) of the order extends the effect of Section 2 of the 2014 Act so that the cancellation of a badge by a Scottish local authority is effective in the law of England and Wales.
Article 4 of the order fixes a cross-reference in subsection (8C) of Section 21 of the 1970 Act. That subsection glosses references to local authorities elsewhere in Section 21 so that they fall to be read as including the Secretary of State. The gloss is stated not to apply in relation to specified subsections. One of the subsections specified is subsection (4BB) which, in the law of England and Wales, was inserted by Section 94 of the Traffic Management Act 2004 and defines the expression “enforcement officer”. This is the subsection (4BB) to which subsection (8C) is intended to refer. As a matter of Scots law, however, a different subsection (4BB) was inserted by Section 73 of the Transport (Scotland) Act 2001. It does not define the expression “enforcement officer” for the purposes of Scots law. Instead, the Scottish definition of “enforcement officer” is to be found in the version of subsection (8A) inserted by Section 5(4) of the 2014 Act. Article 4 of the order amends subsection (8A) so that it does not gloss the reference to a local authority which appears in the definition of “enforcement officer” in both the law of Scotland and of England and Wales.
The need for and content of the draft Section 104 order has been agreed between the United Kingdom and Scottish Governments. The Department for Transport, which has responsibility for the legislation which this order affects, has been consulted throughout the drafting of the order. All provisions contained in this order have the approval of the Department for Transport and of the Scottish Government.
The statutory instrument before the Committee demonstrates this Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I hope that your Lordships agree that the order is an appropriate and sensible use of the powers in the Scotland Act 1998, and in particular of Section 104. I commend the order to the Committee.
My Lords, I thank the noble and learned Lord, Lord Keen of Elie. He showed off his legal skills in presenting the order. I think that I got left behind at the fifth subsection of the seventh Act that he mentioned, but I think that I managed to catch up. If I were a suspicious person, I would think that he was trying to lead me up the highways and byways, but I have studied this order carefully and I do not think that even he is up to mischief with it.
As the Minister has explained, the Scottish Parliament passed a Disabled Persons’ Parking Badges (Scotland) Act and the order will ensure that there is consistency across Great Britain for the badges issued in Scotland. It will mean that the badges issued by Scottish local authorities are recognised in England and Wales. We supported the objectives of the Act when it went through the Holyrood Parliament and we support this measure today. We are committed to making towns and cities more accessible for the disabled in Scotland and more widely, as was shown recently by our amendment in relation to parking on pavements made to the current Scotland Bill. We know that this issue causes real problems for those with disabilities. We again record our gratitude to the Government for accepting our argument and bringing forward the changes necessary to ensure that the Scottish Parliament can act on this issue.
This order tries to establish consistency throughout the three countries. The noble and learned Lord mentioned that, on the common parts of the legislation, the three countries were working together. Are there any differing parts of the legislation left? To get consistency would need careful wording to make sure that there are no discrepancies or loopholes left.
Paragraph 8.6 of the Explanatory Memorandum points to the Scottish Government’s engagement with multiagency groups,
“to bring forward new and focussed ways to educate badge holders”.
My colleagues in the Scottish Parliament have raised this issue and I will ask the Minister about it today. Do the UK Government intend to carry out the same multiagency work and will they be issuing guidance to local authorities in England and Wales about this order?
There is nothing minor about legislation affecting people in the disabled community, and this order did not have any real public consultation. I wonder if the assumption there was that it had broad support; let me hasten to add that it would be a reasonable assumption. On the other hand, it is known that the Great British public, and the Scottish public, can always offer up something. Can the Minister say who was consulted by the Department for Transport and what advice they offered? Perhaps the Minister would consider committing to placing a copy of the evidence in both Libraries.
However, in the great scheme of things these are minor quibbles. We support the order, but I would be grateful if the noble and learned Lord could address some of my specific points. If there is anything new there that has not been covered, it would of course be acceptable to receive that in writing.
I am obliged to the noble Lord, Lord McAvoy, for his observations with regard to the order.
As regards the commonality of the scheme, the only differences which would potentially exist would be on entitlement to badges, which is a matter for each jurisdiction to determine, and the form of the badges themselves, which may differ. What the order will ensure, by way of the 2014 Act, is the enforceability of orders made with respect to those badges. That is what I have to say on commonality.
On the matter of consultation and guidance, I am advised that the UK and Scottish Governments worked closely together with regard to the provisions in the order. It is intended that the department—well, something is intended. Perhaps the noble Lord would allow me a moment.
I am advised that steps will be taken to ensure that the Department for Communities and Local Government is properly sighted on the order so that it may then make an appropriate decision as to whether guidance should be issued. I apologise for the delay on that point.
I am also advised that, as with all Section 104 orders, relevant departments and Ministers were consulted and gave their consent to the making of the order. I do not have further detail as to what was said by or on behalf of the Department for Transport, but perhaps I can arrange to write on that point.
Unless there is any further point that I have not covered, I will leave the matter there.
Committee adjourned at 6.03 pm.