House of Lords
Thursday 30 March 2017
Prayers—read by the Lord Bishop of Winchester.
Brexit: Crime Prevention
To ask Her Majesty’s Government whether they plan to continue sharing sensitive personal information with other European Union member states for the purposes of crime prevention and detection following the United Kingdom’s withdrawal from the European Union.
My Lords, the Government are clear that our commitment to co-operation with European allies on security and law enforcement will be undiminished as a result of leaving the EU. The effective use of data to underpin that co-operation will be an important consideration as we look to establish a new relationship with the EU, but it is too early to say what the future arrangements might look like.
My Lords, the issue of information exchange has taken on an added significance this week. I hope the House will forgive me but I take the avoidable death of one of my former police colleagues very seriously. Less than a week after four people died as a result of terrorism on our doorstep, does the Minister think that the implied threat made by the Prime Minister in her Article 50 letter—backed up yesterday by the Home Secretary—that the UK will withhold security co-operation with the EU if it does not get the trade deal that it wants, was insensitive, reckless, an empty threat, or all three?
My Lords, I too pay tribute to the people who lost their lives last week and who still lie in hospital injured. However, I take exception to what the noble Lord says. The letter says that both sides would cope, but our co-operation would be weakened. We want and we believe that the EU wants security to be part of a new partnership. That is why it is part of the negotiation. The “threat” was not a threat at all—it was a matter of fact.
Would it assist my noble friend in answering the noble Lord, Lord Paddick, if she explained to him that, far from withdrawing or departing from anything, we are arriving at and entering a global network of new technologies in which the methods of crime detection and prevention are likely to be very much expanded and improved?
Will the Minister, in the service of the House, read the two sentences in the letter before the one that she selectively read out? Those sentences make it absolutely clear that the Government’s intention and the implied threat is that unless there is agreement on trade—a “comprehensive agreement” as they have called it—there will not be an agreement on security. By that means, they would imperil not only our economic capability but, even more seriously, our security capability.
The noble Lord is quite wrong. The letter says that both sides would cope, but our co-operation would be weakened. We want, and we believe that the EU wants, security to be part of the new partnership. That is why it will be part of the negotiation. That is the right way forward.
My Lords, perhaps I can bring us back to the Question. Will the Minister clarify whether, if sensitive information is going to be passed to the EU, that will exclude information that is held by the security services and by the police on environmental campaigners, journalists, photographers and even politicians who have committed no crime?
My Lords, does the Minister not agree with me that the best way of answering the Question asked by the noble Lord, Lord Paddick, is to ensure that the Government arrange with our European partners to deal with security issues first and foremost, separately from trade, to make sure there is no moment when we fall off a security cliff?
The noble Lord is quite right in the sense that the Prime Minister put these aspects of the negotiation right at the forefront. I have been in debates in the last few weeks talking about this co-operation. The fact that we have been world leaders in those areas is so important as we go forward, but of course it is all part of a whole deal, bearing in mind the context in which we operate.
My Lords, I am afraid I disagree with my noble friend Lord Kinnock on the reading of this particular piece. For some seven decades now, the US and the UK have been the prime safety net for Europe in defence and security terms. We must not allow this very complex web of agreements somehow to be damaged in these negotiations. The security of Europe is crucial for us. Everyone knows that, and we must not be let it be damaged by some silliness in the negotiations. Does the Minister agree?
I am very pleased that the noble Lord has put this in the broader context. He is absolutely right about our co-operation beyond the EU. The sharing of intelligence with the EU and international partners is far broader than simple measures within EU laws. He is right in that broader context.
Brexit: Court of Justice of the European Union
My Lords, the Prime Minister has clearly set out the position that the jurisdiction of the CJEU in the UK will end. Work is under way to ensure that the impact of this across all the UK’s interests, including economic, are understood and factored into decision-making. After we leave the EU, our laws will be made and enforced in London, Edinburgh, Cardiff and Belfast, and they will be based on the specific interests and values of the UK.
My Lords, the Minister has in fact reflected what the noble Baroness, Lady Williams, has just said. But there appears to have been a dose of cold reality, because yesterday’s Article 50 letter to President Tusk states that, in trading with the EU, UK companies,
“will have to align with rules agreed by institutions of which we are no longer a part”.
That means EU rules made by the EU institutions and enforced by the European Court of Justice. This will reassure many companies and universities, whose cross-border research partnerships, for instance, depend on the recognition of EU law. But how does it square with assertions that all laws will be made in the UK and that our courts will be the final decision-makers? It is not true, is it? An exercise in deceit and smoke and mirrors is going on.
The position is very clear. I am aware that the noble Baroness is something of a stranger to optimism, but it is very clear that we are able to leave the EU, we are able to leave the jurisdiction of the European Court of Justice and we are able to operate within the confines of our own legal systems—which are multiple in the United Kingdom and which, incidentally, enjoy a worldwide and global reputation, and quite rightly so. Of course we will look closely at the impact of ending CJEU jurisdiction, including working out what our future resolution mechanisms will look like—but it is quite wrong to suggest that there is no future outwith the European Court of Justice.
My Lords, does my noble friend not think it absurd that the Liberals are arguing that, in order for us to thrive economically, it is necessary for us to be subject to the jurisdiction of a foreign court? Is it not as absurd as trying to argue that in order to export things to the United States, the Supreme Court should have jurisdiction over the UK? Is it not high time that they got behind the Prime Minister in the interests of the country and stopped fighting battles they have already lost?
Is it not true, however, that if there are changes following rulings of the European Court of Justice, the UK will have the choice of either following those, albeit through our own mechanisms here at Westminster, or ignoring them, in which case there will be an economic price to pay?
I thank the noble Lord for his substantive question, which goes to the heart of an important technical point. For as long as EU-derived law remains on the UK statute book, it will be essential that there is a common understanding of what that law means. I can reassure the noble Lord that, to maximise certainty, the great repeal Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU.
As the noble Baroness will understand, I cannot pre-empt the detail of the negotiations. We all understand why these must be able to proceed in an arena of privacy and confidentiality. It is wrong to conflate two distinct issues: one is the current role of the European Court of Justice in the European Union; the other is how we approach the generation of economic growth with the global opportunities in the economy post Brexit. Clearly, there are huge opportunities, and we have set out our ambitions. The Prime Minister has been clear about her ambitions in negotiations to get a full free trade agreement—and that is a very positive aspiration.
My Lords, does my noble friend agree that one thing is crystal clear: as a result of our no longer being subject to the CJEU, we will equally not be subject to the European Charter of Fundamental Rights—a document to which the party opposite said we were not bound? None the less, the ECJ took a different view, as a result of which there was a great deal of expensive litigation and confusion in the law. I hope my noble friend will confirm that that will be the end of that.
I thank my noble friend for a very helpful observation. It is the case that one implication of leaving the EU is indeed that laws will be made and enforced not in Brussels but in Westminster, Edinburgh, Cardiff and Belfast. That will bring to our legal systems throughout the United Kingdom an overdue clarity—and also, if I may say so, a sense of sovereignty and of being in control of the laws that we make.
My Lords, does the Minister recall that yesterday the Prime Minister stressed that we share liberal democratic values with our European partners? Does she accept that acceptance of the rule of law and of the importance of the rule of law is a fundamental liberal democrat value and that a small number of right-wing lawyers—Sir William Cash, Martin Howe QC and others—who think that common law cannot possibly be contaminated by Roman law have erected that as one of the red lines in our relationship with the European Union and insist that we are seen to be prepared to sacrifice the single market for that? Why do the Government not accept that the rule of law does not stop at the water’s edge?
Let me try to unpick some of the stitches in that closely woven interrogation. First of all, we all agree that the rule of law is important—there is no question about that. Respect for the rule of a law and a suitable judicial mechanism within any jurisdiction of any country is necessary to ensure that the rule of law can be interpreted and applied. I disagree with the noble Lord that in some way the CJEU and the principles of Roman law will be abruptly terminated when we leave the EU. I have made it quite clear that there is a recognition that EU law, which derives from many sources—indeed, my own Scottish legal system is derived largely from Roman law—will not stop being an important component of the body of UK law on leaving the EU. It is not that the jurisdictions of our courts are diminished; it is that we will be taking back control of law-making and law enforcement. That is a very important distinction.
These are technical issues which of course will be reflected upon—that is absolutely clear. It is perfectly obvious to all that when you begin the mechanism of withdrawing from a very complex set of principles and jurisdictions in international law, questions will arise. But the Prime Minister has made it crystal clear that when we leave the EU, we will return sovereignty—including law-making and the enforcement of law—to the UK.
Disabled People: Independent Living
My Lords, the Government believe that individuals should have the opportunity to work and realise the benefit of stable employment where they can, enabling them to live independently and fulfil their potential. We are therefore working to join up the health system, the welfare system and society more widely so that we focus on the strengths of people with disabilities or health conditions and what they can do.
I very much welcome that reply. The most important thing is that the infrastructure—such as enough care support and accessible transport—is got right around the country. Disabled people must have enough support. I wonder whether the Minister’s department will now agree to conduct a cumulative impact assessment on current government policies, which shows their effect on disabled people. The Equality and Human Rights Commission has offered its support and this should be taken up.
My Lords, I am unsure that I should necessarily want to do it in the manner suggested by the noble Baroness, but I assure her that we shall continue to examine the effectiveness of all our policies and of all the benefits that we administer on behalf of the Government. Only today, the second of two reviews conducted by Paul Gray into PIP has been published. We promised these statutory reviews as a result of legislation passed some years ago. The Government will respond to the second review in due course.
My Lords, I declare an interest as president of the Spinal Injuries Association. Is the Minister aware that we have many young people of working age who have broken their backs and necks and are paralysed and who need help to get in and out of bed and into their cars? They need expensive personal care so that they can get to work. If they do not get this, they cannot work.
My Lords, the noble Baroness is right to draw attention to the problems of people with spinal injuries. The same is true for people with any of a host of other conditions, be they mental or physical. That is why we offer the help that we can and why we are committed to trying to reduce the employment gap between those who are disabled and those who are not by seeking greater working opportunities for those with health problems.
My Lords, the Motability scheme is a crucial element for getting people back into work, yet about 50,000 people have lost out on it. What is particularly worrying is that the vast majority of appeals are upheld, by which time those concerned have lost the vehicle and then have to get it again. It is costing a lot of time and money. Would Her Majesty’s Government consider having a scheme whereby people do not lose the vehicle until the end of the appeal process? This would make much more sense where the appeal is upheld.
My Lords, I understand the problems to which the right reverend Prelate refers. The department is looking at these matters. My honourable friend the Minister for Disabled People, Health and Work is well aware of them. As the right reverend Prelate will know, schemes are available for one-off cash payments to help those who are losing their cars. We shall certainly look at speeding up the whole appeals process to make sure that the problems to which the right reverend Prelate referred do not get any worse.
My Lords, to pursue this a little further, I appreciate that the Minister may be thinking about this but the point made by the right reverend Prelate is that people cannot wait. Between October and December last year, 800 people a week were having to hand back their Motability cars because they did not have the money to pay for them any more as a result of PIP reassessment. The Motability website says clearly that you get only six weeks from that decision to hand back your car. Frankly, the DWP is a long way off speeding up assessment to the point where appeals are concluded within six weeks. Will the Minister please look at this a little more urgently?
My Lords, this matter has been treated with considerable urgency. As I made clear, transitional schemes are in place. The package has already helped many claimants to meet their mobility needs by buying a used car. That is why I referred to that. I am more than happy to have further discussions on that but, as I said, my honourable friend the Minister for Disabled People, Health and Work is fully aware of these problems and is engaged with discussion both with Motability and with others.
Child Support: Unpaid Maintenance
My Lords, the main focus of the Department for Work and Pensions is to collect money owed that will benefit children today. It is well established that much of this old debt is uncollectable due to its age and the circumstances of these cases. The department is currently developing a new strategy for handling historic arrears accrued on Child Support Agency schemes. We will consult on the proposed approach before publishing the new strategy.
My Lords, I simply do not think that is acceptable because, according to a withering NAO report, around £3 billion in child maintenance is likely to be uncollectable. The Government say that they are offering parents a fresh start by suggesting that they write off debts to which their children are legally entitled. These are some of the poorest children in society, suffering as a result of incompetence and cuts in enforcement work, so why do not the Government restore staffing levels, step up enforcement and ensure that the new Child Maintenance Service is obliged to collect outstanding debts?
My Lords, I would be more than happy to accept the noble Baroness’s assessment that this is withering and the figures are astronomical if we were talking about figures that related to the children who are likely to benefit today. A lot of this £3.9 billion—sorry, £3.8 billion; there are different figures according to different things—goes back a very long way to the 1993 scheme. Some of it goes back before the reforms introduced in 2003 by the Government of whom the noble Baroness was a member, and some of it goes back before 2008. If the noble Baroness thinks about the number of years that have passed, she will realise that those children are now grown up and will not benefit from recovering that money. It is very sad that absent parents have behaved badly. The only people who have lost out—as the noble Baroness put it—are those children. However, we are concerned about the children of today and to make sure that matters operate properly now, and that the money owed by absent parents, where the department has a role in trying to enforce that, gets paid to the caring parent so that the appropriate children benefit. I am terribly sorry but a lot of that £3.9 billion is in effect lost, as the noble Baroness said, to those children who are no longer children now.
My Lords, I thank my noble friend for that question. I am not going to go into what we are doing about arrears. However, I shall talk about the 2012 scheme of child maintenance. By bringing in more simplified methods of calculation, we are helping parents to sort these matters out. We are also encouraging parents to sort these things out themselves without necessarily using the department. We are now at a stage where in nine out of 10 cases parents are paying towards the child maintenance that they owe, and paying the appropriate amount. Therefore, we are making progress but there are still some who are not doing what they can.
But is the Minister aware of the concern that the government arrangements to manage the outstanding £3 billion-worth of arrears are not yet clear? Arrears are still sitting in the CSA legacy schemes. They need to be sorted out because the biggest risk to the 2012 scheme is a botched job in closing the legacy CSA schemes.
My Lords, as I said, this goes back a long way. It covers Conservative Governments, Labour Governments and the coalition Government. We have all tried to sort this out. I am afraid that a lot of this money is lost for ever. We are looking at a new arrears scheme and will consult on that to try to get what we can, but I am sure the House would agree that the first priority should be to get money that can still benefit the children of today rather than trying to get the money that was owed yesterday, or the money that is owed to the department. The bulk of the money is very historic.
My Lords, I am happy to take the Minister at his word. Let us look at today, but in doing so I declare an historic interest as a member of the board of CMEC before I came into the House. The Government are closing the CSA and if you have an active case on the CSA, instead of transferring it to the new system, it is shut down and you are invited to apply to the new system. The Government estimated that two-thirds of parents would apply to the new system. The NAO has found that only one in five is doing so. The Government have said that most of the rest would make private, family-based arrangements. More than half of families have no arrangement at all in place. This matters because it is not just important for tackling child poverty: a decent child support system sends out a message to the world at large that you might divorce your spouse or separate from your partner but you do not stop being responsible for your kids. Will the Government sort this out?
My Lords, I agree with the noble Baroness’s last sentence: the important thing is that the children of today benefit. That is why I cited the figures earlier. We are now at a stage where in nearly nine out of 10 cases parents pay towards the child maintenance they owe. When we are dealing with historic debt, I am sure the noble Baroness will agree that the right thing to do is to pursue that debt that is likely to benefit the children of today rather than those of before. I think that we were also right to seek reforms to the Child Support Agency, which the noble Baroness’s party tried to do in 2003 and 2008. That is why we brought in CMS. CMS allows us to provide assistance to parents on some occasions, but on many occasions it allows many others to manage these things for themselves without the interference of the Government. The noble Baroness thinks I have not answered sufficiently, but this is why I started off with the fact that most people are making payments.
Prescribed Persons (Reports on Disclosures of Information) Regulations 2017
Motion to Approve
My Lords, there is currently no legal obligation within the whistleblowing framework for prescribed persons to investigate a disclosure made to them. The call for evidence in 2013 identified that whistleblowers did not have the confidence that their reports of wrongdoing were being investigated. The Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998 and subsequently, provides employment protection for workers who have blown the whistle. It protects them from detriment if they have made a “protected disclosure” when they reasonably believe the disclosure tends to show wrongdoing and is in the public interest. The legislation is intended to build openness and trust in workplaces by ensuring that workers who hold their employers to account are treated fairly. Individuals should be able to report malpractice without fear of reprisal and employers should be prepared to work with them to resolve any concerns that may arise, particularly by means of effective internal procedures.
To ensure that a worker’s employment rights are protected, they must make their disclosure either to their employer or to the relevant “prescribed person” as set out in the prescribed persons order, or others, such as a Minister of the Crown or the media. Disclosures can also be made to a legal adviser. If a worker decides to blow the whistle to a prescribed person rather than to their employer, they must choose the person or body from the prescribed person list whose remit is relevant to the wrongdoing that they are disclosing. We have kept the prescribed persons list up to date with annual reviews. This will ensure that workers who are not able to go to their employers to report wrongdoing can generally find the relevant responsible body on the prescribed persons list.
There is also comprehensive guidance to assist employers and prescribed persons in handling disclosures, including guidance for employers on creating a whistleblowing policy and a code of practice. The Government are updating the guidance for prescribed persons and will publish an updated version online by 1 April. Workers also have clear information and guidance available on who they can report wrongdoing to and guidance on how whistleblowing works in practice. This will assist workers and give them the confidence—this is the most important thing about these regulations—to come forward with genuine disclosures.
In response to the concerns raised following the call for evidence in 2013, the Government sought a way to increase confidence that disclosures from workers were indeed investigated and followed through. They sought to increase transparency in the system, which might identify which prescribed persons are not as effectively discharging their responsibilities, while respecting the importance of treating disclosures in confidence. The Government introduced a power in the Small Business, Enterprise and Employment Act 2015 to enable the Secretary of State to make regulations to require certain prescribed persons to report annually on whistleblowing disclosures. The regulations before us today are laid under that power. This approach aims to increase confidence in the actions taken by prescribed persons through greater transparency about how disclosures are handled. In turn, that will also improve consistency across different bodies in the way they respond to disclosures.
I turn now to the detail of the regulations. They require most prescribed persons to report annually on a number of details. First, a prescribed person will need to report on the number of concerns that have been raised with that body in a 12-month period which it reasonably believes are qualifying disclosures. Secondly, from those disclosures they will need to report on the numbers in which a decision to take further action was made. They will also need to provide general commentary on the action taken in response to whistleblowing disclosures and how the information from whistleblowers has impacted on the prescribed body’s activity in its relevant sector.
The regulations require prescribed persons to publish their reports online so that they are available to all or, if not online, in another place which will bring them to the public’s attention. We intend to have their reports collated and to lay them before the House. To minimise the burden on prescribed persons, the reports are not required to be separate documents. For example, they may be included in a wider annual report that a body already publishes routinely. The new measures will require prescribed persons to reflect upon what they do with whistleblowing disclosures. We envisage that this in turn will encourage greater focus on the positive impact of whistleblowing in their respective sectors.
The regulations do not apply to Members of the other House. Although they are prescribed persons so that constituents can contact them about wrongdoings at work without affecting their employment protection, they are not in quite the same position as bodies with a regulatory responsibility in relation to a particular sector or type of wrongdoing. Likewise, the regulations do not apply to Ministers of the Crown.
In conclusion, in recent years the Government have undertaken significant reforms to the whistleblowing framework, working to improve the environment for whistleblowers. This includes improved guidance for individuals, employers and prescribed persons on how whistleblowing works in practice, including a non-statutory code of practice, which we will review this year; bringing the prescribed persons list up to date, including designating MPs as prescribed persons; and delivering on the commitment to review the list annually. These regulations are an important step to ensure that workers have the confidence to report any wrongdoing and ensure greater transparency in the way disclosures are handled and taken forward. I commend the regulations to the House.
My Lords, I am very grateful to the Minister for appearing so fresh and alert at the Dispatch Box. She certainly has the upper hand on me, given that we finished near midnight last night and we were in the same positions across the Dispatch Box. The rest of you were all sleeping soundly in your beds, but we were doing the best we could, and here we are again.
We absolutely support the regulations before us today. They come from a Bill that I was involved in and we are aware of the background, which the noble Baroness has very helpfully outlined. We want to give the regulations our full support.
I have two very small points and one slightly larger one to raise with her. I do not necessarily expect an answer today, but perhaps the noble Baroness could write to me, if she wishes. Your Lordships will be aware that I have a long-standing issue with the Government—with all Governments, in fact—for not adhering to the good practice, which I thought had support on all sides of the House, of bringing new regulations forward on set days in the year, even though they may not have a major impact, so that businesses and other persons affected by them can be aware of the fact that there will be a change. These dates are 6 April and 1 October, and they are broadly adhered to now by the Department for Business, which is good. However, I see that this one from the department with responsibility for employment is coming in on 1 April, and I think that it would not have been very difficult to defer it to 6 April. I suggest that, in future, they might think about this. Common commencement dates are important to those who have to respond to SIs. It is therefore important that we try to have a unilateral practice across government.
As for the substance of these regulations, what they do—which is terrific—is address the problem of a lack of consistency in approach and how communications from prescribed persons are circulated. What the noble Baroness said in this area is very good. However, there is one issue that would help us understand a bit more about this.
The Explanatory Memorandum helpfully reviews the consultation that was run by the Government from 1 August to 30 September 2014, and broadly this is very supportive of the proposals here, which is a good thing. However, the Explanatory Memorandum states that,
“respondents … challenged the government to ensure that reporting requirements struck a balance between transparency and confidentiality, including protecting the identities of both the worker and employer”.
I looked in the text of the statutory instrument for an expression of how that was to be brought forward in the regulations but I cannot find it. It may be that it is going to be in the memorandum or notes of guidance that will issued separately, in which case that is something we can deal with by correspondence. The only reference to this is in Regulation 5 of the SI, entitled “Content of report”. It simply says:
“The report must contain, without including any information in the report that would identify a worker who has made a disclosure of information, or an employer or other person in respect of whom a disclosure of information has been made”,
followed by the details of what it is. I do not think that quite takes the point that was raised in the consultation process about needing to be much surer that the requirements strike that balance. As I say, if the answer is that there will be details put forward in future in guidance, then obviously that can be done at a later date.
I am not a lawyer and maybe it needs a lawyer’s brain to explain my third and final point which is that the formulation of the “Extent and Territorial Applications” in this particular SI is unusual in the sense that the extent of the instrument is Great Britain and the territorial application of the instrument is Great Britain. That means, of course, Scotland, England and Wales but not Northern Ireland. Can I have an assurance from the Minister on the question of how this important issue is to be taken forward in Northern Ireland? It seems to be left uncovered by the statutory instrument. I assume that other arrangements, perhaps by the Assembly when it gets going again, will be carried forward but I would be grateful for some information on how that is going to happen. Whistleblowing is an important area. It should apply to all parts of the United Kingdom. In fact, there may be reasons why it is even more important in Northern Ireland. I look forward to hearing from the Minister on that point.
My Lords, I thank the Minister for her detailed explanation. I am slightly fresher because I did not have a late-night assignment in this House last night and I want to try to clear up some confusion in some of the points that she made.
The Minister talked about annual reviews of the list of prescribed persons. As far as I can see, and this is reiterated within the statutory instrument that we are debating today, she was referring to the 111 prescribed persons listed in the Public Interest Disclosure (Prescribed Persons) Order 2014. That does not really tie up with the idea of an annual review, so I find that confusing. Can the Minister also explain how consistency will be maintained, assuming there are still over 100 organisations? It would be so much easier for anyone looking at this to have those 100 or so organisations actually listed in the statutory instrument rather than people having to look back to other legislation for them. As the noble Lord has just said, we are not all lawyers and it should be on the face of the statutory instrument. I find it very sad that it is not. Can the Minister say whether there is going to be any government action to compare these various bodies and how they report? For someone who is a professional it is a fact of life that whatever the regulations say, if you have numerous organisations, they will have different attitudes to how they report.
I also understand that the annual reports will not require the disclosure of any information which could identify the worker who made the disclosure—that is absolutely right. However, I query, and ask the Government to reconsider, that the same anonymity applies to the employer about whom the disclosure is made if it is then found that further action was taken. I can see that there should be anonymity for both employer and employee if there is no further action, but if the employer is found guilty—to use the word in its general sense—why should that person or organisation not be named? I hope that the Minister will be able to answer my queries.
My Lords, I am rather glad that the noble Lord, Lord Stevenson, referenced our late hour last night, because I am not sure that I will be able to answer all the questions that have been put to me this morning. However, I will do my best to answer at least some of them.
First, on the question about 1 April, the reason for that date is the timing of the reporting period, which is 1 April to 31 March each year. The regulations do not impact on prior business, and prescribed persons whom it impacts on have been advised. I hope that that makes sense.
On Northern Ireland, bodies operating in devolved fields that are prescribed persons for the purposes of Great Britain employment law are included in the reporting duty and will be required to publish reports on their own websites. This does not affect their existing lines of accountability. I can confirm that employment law is devolved in Northern Ireland.
In response to the noble Lord, Lord Palmer, perhaps I will come back to anonymity across the board in a moment. Sorry, I am advised that it is probably better if I write to the noble Lord, Lord Palmer, with respect to whether there is anonymity for the employer if guilty.
It might be helpful, with respect to both noble Lords, if I made some reference to the question of blacklisting, which is important to this. It is important that we address the issue of whistleblowers becoming blacklisted as a result of making disclosures. The Government have taken action to deal with serious offences of blacklisting relating to trade union activity that were uncovered in the past. Among the actions taken, the Government have increased the penalty that the Information Commissioner’s Office can impose for serious breaches of the Data Protection Act 1998 to £500,000. Data protection law is undergoing reform as a result of the general data protection regulation, which takes effect from 25 May 2018. The ICO’s fining powers will substantially increase as a result.
We are also bringing forward regulations in the health service to introduce protections for job applicants who have been whistleblowers, and there is a similar power in the Children and Social Work Bill for the field of children’s social care. We think it is right that those who work with vulnerable people need to be able to report concerns about what is happening in their workplace without fear of reprisals—I think that all noble Lords in this House will know of people who have experienced exactly the situation we are determined to deal with. Importantly, if they make a protected disclosure, they should be protected themselves from being blacklisted and unable to find a new role.
We have seen limited evidence that this is a problem with regard to not protecting whistleblowers and blacklisting in other sectors of the economy. Much of the anecdotal evidence has been concentrated in one or two fields where there is legislation in progress. Any new regulation would have an impact on employers, so we need to take care that it is appropriate and proportionate to the aim that it seeks to achieve.
The Information Commissioner intends to undertake a call for evidence later this year to help develop her understanding of the underlying issues, building on the ICO’s own observations from its investigations of blacklisting complaints. I could go on, but with regard to whether the Government will introduce a new criminal sanction in employment law for the blacklisting of job applicants, most employment law is enforced through civil sanctions. However, if the ICO finds a breach, it can also issue an enforcement or information notice and non-compliance with an ICO enforcement or information notice, where this is in place, is a criminal offence.
I am conscious that I have not been able to answer all the questions. I hope noble Lords will accept that I will write to them on any other points. In recent years the Government have undertaken significant reforms to the whistleblowing framework, working to improve the environment for whistleblowers. I know that noble Lords have paid close attention to these developments and indeed have shaped them in a number of ways, for which I am grateful. I am very grateful for the full support of the noble Lord, Lord Stevenson, on what we seek to achieve here.
The duty will increase confidence in the actions taken by prescribed persons through greater transparency about how disclosures are handled—of course, the balance between transparency and anonymity is a very difficult one to strike. The measure is also intended to drive up consistency in the way prescribed persons handle whistleblowing disclosures. By making a public interest disclosure to a prescribed person, a worker will qualify for protection from detriment or dismissal from work if the individual reasonably believes that the information disclosed is substantially true and that the matter falls within the remit of the prescribed person’s responsibility.
Once prospective whistleblowers are able to see that action has been taken as a result of previous disclosures to prescribed persons, I hope—and I am sure all noble Lords will too—that more employees who have witnessed malpractice at work will have the confidence to come forward and report it to the relevant authorities. I commend these regulations to the House.
Deregulation Act 2015 and Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) (Savings) Regulations 2017
Motion to Approve
My Lords, I hope I have the right speech. If I may, I will take a few moments of your Lordships’ time to set these regulations into context. They make consequential amendments and savings provisions to legislation that refers to the Insolvency Act 1986—as it will be amended by the Deregulation Act 2015 and the Small Business, Enterprise and Employment Act 2015 on 6 April 2017—and to the Insolvency Rules 1986, which have been repealed by the Insolvency (England and Wales) Rules 2016. These amendments will come into force on 6 April 2017.
The insolvency reforms will initially be adopted by the mainstream insolvency processes and it is anticipated that departments responsible for special insolvency regimes will update their legislation in due course.
Regulation 4 is a savings provision. It provides that the Insolvency Act will not be amended and will continue to apply as it does now for certain purposes or certain insolvency regimes. This provision will ensure that these other insolvency regimes remain operational in the interim period.
These regulations make amendments to various pieces of primary and secondary legislation. The most significant changes by volume update the Administration of Insolvent Estates of Deceased Persons Order 1986, which is the procedural framework that deals with the administration of the insolvent estates of deceased debtors, and the Insolvent Partnerships Order 1994, which deals with insolvent partnerships.
Over the last two years, the Government have introduced a series of reforms to modernise and streamline the insolvency process. They have achieved this through the Deregulation Act 2015, the Small Business, Enterprise and Employment Act 2015 and the new Insolvency (England and Wales) Rules 2016. The policy impetus for these measures was to remove unnecessary burdens and enable greater use of technology to reduce the cost of administering insolvency proceedings. It was part of the Government’s Red Tape Challenge, which asked stakeholders for views on how unnecessary regulation could be reduced and how procedures could be modernised, simplified and made more efficient. The responses produced a package of measures aimed at reducing costs and improving returns to creditors. The changes, which commence in April 2017, will deliver a net benefit to business of £22 million per year.
The key policy changes to which these consequential amendments apply include, first, changes to the way in which decisions are made; secondly, the abolition of final meetings; thirdly, the ability for creditors to opt out of receiving correspondence; fourthly, measures to increase the use of electronic communication and websites; and, fifthly, the removal of a requirement to formally file claims for small debts.
With regard to changing the way in which decisions are made, in the past, to begin some insolvency proceedings and make decisions in all insolvency proceedings the officeholder was required to call a physical meeting of the creditors of the insolvent person. Feedback from stakeholders was that this process was more expensive and cumbersome than was really necessary. In response to that feedback, changes have been made to the way in which officeholders will engage with and seek decisions from creditors. Physical meetings will no longer be the default mechanism for making decisions in insolvency proceedings. In fact, an officeholder will not be allowed to hold a physical meeting unless 10% in value of the creditors, 10% of the creditors in number or 10 individual creditors request that a meeting is held. This puts control back into the hands of creditors, and it is anticipated that this move alone will result in savings of more than £6 million per year. In many cases, an officeholder will be able to use a process of “deemed consent”, where they write to creditors with a proposal and, provided they do not receive objections from more than 10% in value of creditors, the proposal will be deemed to have been approved. Alternatively, officeholders can use an online virtual meeting, a telephone meeting or an electronic voting system, or seek decisions by way of correspondence.
With regard to the abolition of final meetings, currently an officeholder must hold a face-to-face meeting with creditors in order to lay his or her final report on the outcome of the case. These meetings were in fact rarely attended by creditors. Going forward, the officeholder will simply send a final account of the case to creditors, but this will not reduce the creditors’ rights to challenge any actions of the officeholder.
With regard to opting out of correspondence, previously in insolvency proceedings the officeholder was required to send all notices, all reports and all other documents and communications required by legislation to all known creditors, even where a creditor did not want to receive such information. It is inefficient for an officeholder to have to send such documents where they are not wanted. Under the new regime, creditors with no further interest in an insolvency process will be able to opt out of receiving further routine correspondence and reports from the officeholder. This will not include correspondence about the payment of a dividend, as the officeholder will still have to notify all creditors if a dividend is proposed.
With regard to the increased use of electronic communication, where, before the commencement of insolvency proceedings, parties have customarily corresponded electronically with one another, it is government policy that this should be allowed to continue without onerous regulatory burdens as to the means of communication. The reforms remove the need for the officeholder to obtain permission from each creditor to communicate electronically after the commencement of the insolvency proceedings. This will encourage e-communication, which is generally cheaper and speedier than traditional post. With regard to the use of websites, under the current rules an officeholder must obtain a court order if he or she wants to put all future communications with creditors on a website. This considerably restricts the use of technology. The requirement for a court order has therefore been removed.
With regard to no need to formally file claims for small debts, where a creditor is owed up to £1,000, new provisions will allow an officeholder to rely on information contained in a company’s or bankrupt’s records and to pay a dividend without the need for the creditor to submit a formal claim.
It is fair to say that as business practice has developed, particularly through new technologies, corresponding changes to insolvency law have been slow to follow. Users have not always been able to take advantage of the quickest, most cost-effective or most convenient methods of engaging with the insolvency process. The changes coming into force on 6 April modernise the insolvency process by encouraging the use of electronic communication and decision-making processes fit for the 21st century. These changes will increase creditor engagement through more convenient methods of interaction, as well as reducing the costs of seeking decisions. In particular, amendments enabling modern methods of communication and decision-making to be used in place of paper communications and physical meetings will be introduced. This will increase creditors’ engagement in insolvency cases by encouraging the use of decision-making processes fit for the 21st century.
The insolvency reforms have been informed by extensive consultation and engagement with a range of parties affected by insolvency, including the insolvency profession, creditor representatives, insolvency regulators and public bodies. I hope that gives a full explanation of these regulations and I commend them to the House. I beg to move.
My Lords, I thank the Minister very much for that detailed explanation. I welcome the streamlining and digitising of the system, which is well overdue.
I raise two points, which I hope the Minister can answer. On the European Convention on Human Rights, the Minister for Small Business says:
“In my view, the provisions of the”,
“are compatible with the Convention rights”.
Can the Minister be a little more definite on what legal opinions the Government have taken on these regulations post-Brexit, which is around the corner? The Minister for Small Business just gives her view rather than the legal view, which the House is entitled to hear.
The other points I take up with the Minister are the non-requirement of creditors meetings and the streamlining of methods. That is absolutely ideal and it is the way to reduce the costs, but there is no mention in this legislation or the Minister’s introduction of the statutory instrument of the not insubstantial insolvency fees coming out of the carcass of an insolvency. I am a registered chartered accountant, though I have never been an insolvency practitioner, but I have seen, sadly, many of my clients being subject to bankruptcy and insolvency. The one thing that I have always thought a little worrying was that the insolvency practitioners’ fees—with all insolvency practitioners—come out of the carcass of that insolvency before anybody else gets a dip into it. By streamlining it in the way we have, I wonder whether the Minister and the Government’s civil servants have looked at the attitude of creditors to the size of and, sometimes, lack of change in the level of insolvency fees. It tends to happen in smaller bankruptcies that, after the insolvency practitioner has charged their fees—at a not insubstantial hourly rate, particularly in London—there is not much left.
My Lords, I too thank the Minister for her very full introduction to this. I was involved in the passage of the Deregulation Bill 2015 and the Small Business, Enterprise and Employment Bill 2015, so I have some background and previous on this. I do not think the noble Lord, Lord Palmer, was involved, but he might be advised to read Hansard for both those Bills because extensive discussion of the points he raised took place on the primary legislation. It is not irrelevant for him to be referred to that because a number of very important points were made along the lines of the ones he made. Good responses were given by the Government at that time, which I recommend to him.
There was one point in what the noble Lord said that it would be useful to put on the record again. A lot of the Minister’s statement was concerned with making the case that these changes, which are in practice quite narrow, will make a huge difference to the insolvency arrangements. At the end of my remarks I will come to a couple of points on the broader picture here.
In truth, the main debates we had on the Bills that led to this statutory instrument were about the rule of 10. A lot of weight and some cost savings were put on the idea that control of the liquidations and insolvencies mentioned in the statutory instrument had passed too far away from creditors across to insolvency practitioners. Indeed, the question of fees still needs to be addressed. The arguments used and the decisions that came up did not back up that assertion.
Ultimately, the proposal was to abolish the meeting of creditors, at which some exercise by creditors could be played out in full. The point was made by so many people around the business and many insolvency practitioners that the creditors’ meeting was really the meat of any insolvency. I am sure that the noble Lord, Lord Palmer, would say the same, even though he is not a direct practitioner: it is only when you get the creditors around the table with the IP person that you get the chance to work out exactly what will come and how much will be paid to each of them.
There was also an assumption behind the Bill that was not borne out in practice, which is that all creditors are equal, that somehow the decisions would always be accepted by a group of creditors if they were brought together and that that could therefore be replicated in a virtual space. That is not the case. In most small business insolvencies there is usually a major creditor—usually a bank—that is completely intransigent. The problem is not one of trying to resolve how much is divvied up between them, but trying to get the bank to agree to terms that do not freeze out the smaller creditors, many of whose businesses will suffer if they cannot get the proceeds from the insolvency.
The compromise position that we came up with of a rule of 10 was that you could have a meeting if it was 10% by value of the creditors, 10% of the number of creditors or 10 creditors. It was an uncomfortable compromise. I am sure that the Box would agree that we did not find a very good position on this, but it was the best way of trying to balance those competing issues that I have identified. The overbearing behaviour of the single big creditor, the difficulty of trying to reach out to the smaller creditors and the position of the insolvency practitioner as the person who ran this all play against the creditors being in control. We should not underplay that point.
It is true that the new technologies will help. The noble Baroness did not mention the change in the language, but it is quite striking in these regulations, with a move away from “meetings must be held” to “processes may be carried out”—from the negative, “You are in problems if you do not do it this way”, to the permissive, “If you do it this way, there is a recognition of how it will happen”. That will prove more beneficial in the long run than much of what we have been talking about. Nevertheless, we broadly support what has happened. These are the natural consequences of the discussions held during the passage of the Small Business, Enterprise and Employment Bill and the Deregulation Bill. They are appropriate and I am extremely grateful to see that they will be brought in on 6 April.
I thank both noble Lords for their contribution to this debate. To respond first to the noble Lord, Lord Palmer, on his question of whether legal advice is obtained by the Government before making the ECHR statement, the answer is very much yes. Ministers are advised by government legal advisers before expressing such a view. Further than that, or on what happens post-Brexit, I would not like to comment.
My experience of insolvency goes right back to the Insolvency Act 2000, when I was in the same position as the noble Lord, Lord Stevenson of Balmacara, is now. The language of regulations and primary legislation in those days was very different but ever since then I have been able to understand where the noble Lord, Lord Palmer, is coming from with regard to the not insubstantial fees of the insolvency process. The question, of course, is what the Government are doing, if they can do anything, to interfere in the marketplace with regard to who charges what fees. In October 2015, the Government introduced the need for officeholders to provide a fees estimate, which creditors are asked to agree. These rules will be reviewed and possibly revised, depending on how effective they are proving. I hope that is helpful. I absolutely understand why the question was asked.
I thank the noble Lord, Lord Stevenson, for helpfully expanding on where we have come from in terms of the rule of 10, as, yes, on the face of it, these appear quite narrow changes. It was also helpful of him to suggest to the noble Lord, Lord Palmer, that on the question of expenses and so on, we should look back in Hansard to when these issues were discussed in much more detail then they can be in relation to the regulations before us.
The proposal to abolish meetings of creditors is important. It struck me when I first looked at it because, as the noble Lord suggested, of course some people want to be at the insolvency meeting to put forward their case, particularly the smaller creditors involved. I am advised that research shows that physical meetings are very poorly attended by creditors and, as a result, are not an effective means of engaging with them. They do not reflect modern methods of communication that are available and could be used to seek decisions from creditors. There are better ways of seeking a view, such as using video or telephone conferencing or online voting methods, and officeholders are now being given the flexibility to identify and use the most appropriate of these. We very much hope that these new provisions will give more scope for creditors to actively participate in making case-related decisions.
I am reminded of a debate on a recent order before your Lordships’ House, when the noble Lord, Lord Mendelsohn, talked about the need to find more savings in regard to the cost to business. We estimate that this will be a £22 million saving, which is one small contribution to that difficult process. There is always the possibility of unintended consequences when trying to make things more streamlined, effective, efficient or 21st century—whatever that can mean. We have to be very careful that we do not compromise people such as the small creditor who is having to push his or her weight against the larger creditor, who can take his or her place more aggressively—if I may use that term.
I am glad that the noble Lord, Lord Stevenson, referenced the change of language. I agree that it really does help. It is important that we think about language when drafting legislation in areas such as this—the change from “must” to “may” is a good move in that sense.
I thank noble Lords for their consideration of the regulations and for their valuable contributions to the debate. I hope we can agree that these regulations will bring important benefits from updating the legislation to ensure that it is efficient and effective, delivering the best returns possible for those affected by insolvency. I commend these regulations to the House.
Public Sector Apprenticeship Targets Regulations 2017
Motion to Approve
My Lords, these regulations are the first use of the power under Sections A9 and A10 of the Apprenticeships, Skills, Children and Learning Act 2009 which enables the setting of apprenticeship targets for prescribed public bodies. There is a fair amount of ground to cover so I hope the House will forgive me if my remarks take slightly longer than usual.
I will start by setting out what we are trying to achieve, the scale of our ambition and how these regulations enable that to be met. The public sector comprises bodies ranging from large government departments, such as the Department for Work and Pensions, to more independent institutions such as local NHS trusts. With 4.2 million people working in the public sector, in professions stretching from front-line nursing to local council administration, it is vital that all those employed have the skills they need to succeed.
Apprenticeships are the cornerstone of our skills strategy and across the country employers are hiring apprentices as part of the workforces of the future. Therefore, to encourage public sector bodies to incorporate apprentices into their own workforce planning, these regulations set an apprenticeship target for prescribed public bodies. The apprenticeship target is for the number of apprentices who start working for the public body over the target period to be equal to 2.3% of the public body’s headcount in England. The target period is from 1 April 2017 to 31 March 2021.
I do not intend to go into the formula used to set the target at 2.3% of a public body’s headcount but I will say that this figure reflects the public sector’s proportional share of our broader target to achieve 3 million apprenticeship starts by 2020. Across the public sector, 2.3% means a goal of more than 80,000 new, employer-led, quality apprenticeships in each year the target is in effect, with the positive impact felt by everyone from police forces to schools to government agencies, and the public benefiting throughout from the delivery of world-class public services.
To realise this, the regulations prescribe the public bodies in scope of the target, how public bodies can calculate their progress towards meeting the 2.3% target, and the information they must publish and send to the Secretary of State. The regulations enable the Government to effectively set and monitor this target, and they will be supported by statutory guidance, assisting public sector bodies to understand how they can best have regard to the target.
I will now focus on quality and benefit. Historically, the public sector has employed far fewer apprentices than the private sector and that is why it is necessary to establish the target, to ensure that all parts of the economy are able to benefit from a skills revolution. Through these regulations we are creating more opportunities for people to earn as they learn in an apprenticeship.
Quality remains at the core of the Government’s apprenticeship reforms. New, employer-led standards will ensure that each apprentice will be fully competent in their profession, and the Institute for Apprenticeships, which is coming on stream on 1 April 2017, will oversee the quality of apprenticeship standards and assessment plans. We have also legislated to protect the term “apprenticeship” by creating an offence for a person to provide or offer a course or training as an apprenticeship in England if it is not a statutory apprenticeship. This is crucial as we must uphold quality in order that the strong benefits of apprenticeships may continue.
Employing apprentices makes sense for everyone involved. It makes economic sense and delivers a high return on investment, with research indicating that adult apprenticeships at level 3 bring £28 of economic benefits respectively for each pound of government investment. Employers benefit, too. In a 2015 survey 87% of employers said they were satisfied with their apprenticeship programme. That is the latest survey that we have.
Finally, the financial benefits to apprentices themselves are immediately apparent. Apprenticeships boost current earnings by 11% and 16% for levels 2 and 3 apprenticeships respectively.
Although we are not intending to set sub-targets for individual groups, we remain committed to improving access to apprenticeships for all, including those from BAME backgrounds, those with learning difficulties or disabilities, care leavers, and those from deprived areas. We are taking a range of actions to make apprenticeships more accessible, including implementing the recommendations of the Maynard taskforce for people with learning difficulties or disabilities, and establishing the Apprenticeships Diversity Champions Network.
We are also investing over £60 million in supporting apprentices from deprived areas. As a priority, we are establishing parity of esteem to ensure that doing an apprenticeship is no longer seen as a secondary choice to the academic route. This is particularly important as we ensure that apprenticeships are valued by all and remain opportunities open to all. Apprentices no longer fit the image of old; now they work in all sectors from education to planning and administration, at all levels from first job even up to management level, and they are from all backgrounds.
During the passage of the Enterprise Act 2016, which inserted this provision into the Apprenticeships, Skills, Children and Learning Act 2009, this House debated and voted on provisions enabling the Government to set apprenticeship targets for prescribed public bodies. At that time there was cross-party support for what was rightly recognised as an opportunity to improve public services and provide more opportunities for people of all backgrounds.
We consulted extensively on the proposed bodies and scope and the calculation of the target, and heard from a wide range of 180 public bodies and representative groups of different sectors. The majority of respondents felt it vital that the public sector engaged with our reforms and that public sector bodies also benefited from the growing apprenticeship movement, with one trade union commenting that they,
“welcome the extension of good quality apprenticeships”.
We also listened to concerns raised. For example, some respondents were critical of the target being assessed on an annual basis. As such, while still continuing to monitor public bodies’ progress in annual returns, for grouped bodies the target is calculated as an average over the target period. For all other public bodies, the target is calculated with respect to only those years in which the public body has 250 or more employees. This will enable organisations to plan their training and recruitment of apprentices to meet their workforce needs, and for government to monitor and support public bodies where needed.
Following consultation, we will also allow local authorities to separate the headcount of those bodies where they employ staff but do not direct the workforce planning—including schools and emergency services—in their information returns. We have also responded to those who were concerned about how the target may impact them given their high proportion of part-time workers. We suggest that these bodies can, should they choose to, use their full-time equivalent number in parallel under their obligation to report on headcount, in order to explain any underachievement of the target as necessary.
I will move on to reporting requirements. In order to promote transparency, public bodies will be required to publish and/or provide information relating to their progress. They must do this in the six months following 31 March, in each year of the target period in which the body is in scope. There are two parts to this requirement. First, to make it clear which bodies are leading in their investment in apprenticeships, public bodies must publish and send information about their progress towards the target. This includes how many apprentices they employ as a percentage of their total headcount.
Secondly, public bodies will have to send an “apprenticeship activity return” to the department, detailing the actions they have taken to have regard to the target, why they may not have met the target, and their intended future actions to do so. This information does not have to be made available publicly but will instead be used by government to determine which bodies have had regard to the target before offering suitable support and guidance thereafter. To be clear, we do not intend to use a heavy hand in our approach to public bodies in this respect but rather consider the details that they have provided in the return, before assessing whether they have had regard, or enough regard, to the target.
We do not wish to overburden the public sector unnecessarily and we remain aware of the challenges faced by different bodies. That is why the Department for Education is liaising with the Department for Communities and Local Government, the Department for Health, the Home Office and other departments across Whitehall to support them in delivering apprenticeships throughout their own wider public sectors. Departments will also work with public bodies to develop new, employer-led apprenticeship standards and increase the number of quality apprenticeships, thereby directly improving services delivered to the public.
Let me take this opportunity to highlight the progress we have already made across government to ensure that there are opportunities for apprentices to develop their careers throughout the public sector. Four main areas of the public sector will deliver a majority of apprentices towards the target: the NHS, schools, local government and the emergency services. I will now set out what we are doing to ensure not only that they can have regard to the target but that they can employ apprentices most effectively to deliver the services that people need.
First, we estimate that there will be 100,000 new apprentice starts in our National Health Service over the course of this Parliament, and the Department for Health and its partners are working proactively to make this a reality. With all NHS trusts included within scope of the target, there is a real opportunity to ensure access to high-quality careers in the health sector nationwide, building from a strong start which saw 20,000 apprentices employed in the NHS in 2015-16. The Department for Health and Health Education England have worked closely with Skills for Health and the National Skills Academy for Health to develop guidance for employers to support them in creating quality apprenticeships in the NHS. In addition, Health Education England is taking the lead in bringing trailblazing employers together in order to develop suitable standards. To date, they have focused on creating a pathway of apprentice standards in nursing, starting with level 2 healthcare support worker and leading to level 6 nursing degree apprenticeship.
Secondly, on schools, we recognise the importance of ensuring that apprentices in the educational sector are employed in the school setting. Not only will this help build skills and deliver more for local parents and students, but it will ensure that young people are exposed to apprentices working around them, allowing them to more easily recognise the value of the apprenticeship route. In order to support schools to practise what they preach in employing apprentices, the Department for Education and the Department for Communities and Local Government have been working closely to prepare schools for this Government’s apprenticeship reforms, including both the apprenticeship target and the apprenticeship levy. For example, the Department for Education has previously carried out mapping work to establish what wider existing apprenticeship standards could be utilised by schools. It has since published this as part of a guide to the new apprenticeship system, which outlines how different types of schools can be part of these apprenticeship reforms and, where relevant, how they should look to work with their local authority to maximise their impact. On standards, an apprenticeship option for teaching assistants has been available for a number of years, and a new standard is currently being consulted on. The Department for Education is also supporting a number of other trailblazer groups, which are developing apprenticeship opportunities in schools, including an apprenticeship standard for teaching.
Thirdly, the local government sector will be the largest contributor to the public sector apprenticeship target, aiming for more than 30,000 new apprenticeship starts each year. This means that councils across England are being set an ambitious collective target to deliver more than 120,000 apprentices over the period the target is in effect, ensuring that this policy will have a truly national impact. Some councils have already made great progress in incorporating apprentices into their workforces, and with all but the smallest councils being in scope of the target, there is a great opportunity for them to learn from each other. The Department for Communities and Local Government has been actively working with the Local Government Association and other stakeholders on a range of awareness-raising activity. This activity has already reached hundreds of councils, and DCLG will continue to work closely with the LGA to identify suitable standards to meet the skills gaps of the sector. This includes consideration of standards in social care, regulatory services and planning functions.
Fourthly, our emergency services—so important, as we know from the awful events of last week—will also be utilising the opportunity that this target presents to build the skills that they need as first responders to keep our neighbourhoods safe. The target will aim for 5,000 police and 1,000 fire and rescue apprenticeship starts per annum, with all police forces and all but two fire and rescue services, in scope.
To achieve this, the Home Office has been working closely with stakeholders across government and front-line bodies to develop “blue light” entry schemes for apprentices. For example, the police, fire and ambulance services have come together and are currently developing an emergency call handling apprenticeship standard. In addition, a standard for police constables has now been approved, subject to some final revisions, and a trailblazer group of leading employers is developing a new firefighter standard.
To conclude, the impact of these regulations will be felt, we believe, across the public sector in some depth, impacting and improving the lives of citizens nationwide. The regulations are an important part of our wider plans for the delivery of world-class public services and a skills system with apprentices at the heart of the workplace. They set an ambitious and demanding target, but one that has the potential to bring transformative results to public services nationwide, while opening up more opportunities for people from all backgrounds to progress in the workplace. I commend these regulations to the House.
My Lords, I thank the Minister for his comprehensive introduction of these regulations. He has gone into considerably more detail than Mr Halfon did in the other place, and that is helpful. I will look with interest in Hansard at the amount of information on the different sectors that the noble Viscount outlined. It would probably be quite a surprise if I began by saying anything other than that we welcome these regulations and the aim of the Government that they seek to facilitate. The extent to which it is achievable may be slightly more problematic, but only time will judge on that.
As the Minister said, apprenticeships have a crucial role to play in ensuring that young people—but not only young people, of course—are provided with the ability to take up proper training that enables them to progress to well-paid and sustainable employment into their adult lives. The public sector clearly has a major role to play in that, and I welcome the fact that the Government have placed an onus on the public sector to play, and to be seen to play, its part in the long haul towards the target of 3 million apprenticeship starts by 2020.
On that point, I would ask the Minister to clarify the target for the four years spanned by these regulations. I listened carefully to what he said and I think I am correct in saying that he mentioned the figure of 80,000 each year, which he said reflected the public sector’s proportionate share of the 3 million target. We are slightly puzzled by that because those projections do not suggest that the public sector will be pulling its full weight towards the aim of 3 million. My understanding is that the public sector accounts for some 16.2% of the total workforce, yet the figure of 320,000 apprenticeship starts over four years represents around 11% of the 3 million target, and 16.2% of 3 million is almost 500,000. Perhaps I am missing something—the fact that there is a significant gap between the two figures suggests that I may well be—so it would be helpful if the Minister could explain why the public sector target is not more in line with that figure of 16.2%.
I was struck by the fact that the only government department excluded from these regulations is GCHQ. I can just about understand why that might be—although is it not rather a shame that there will be no openings for apprentice spies, albeit those who operate in front of a computer screen or in a darkened room wearing headphones? Just imagine the surge of applications for those apprenticeships, had they been available—or is it the case that they are available but the information is classified?
A question which the Minister might be more comfortable answering relates to the figure of 2.3% of a department’s or a body’s headcount being the target for apprenticeship starts. That figure is to be averaged over the four years beginning next month, which is not unreasonable as the target is unlikely to be achieved in the first year and perhaps also in the second year. If that happens, it is self-evident that in future years the figure will need to exceed 2.3% to achieve the average. Is the Minister confident that that will happen? If he is, on what basis does he have such confidence?
I will not repeat the argument made by my honourable friend Mr Marsden in the other place about the demands being placed on local authorities by the funding shortfall that they face. The Local Government Association estimates that figure at £5.8 billion by 2020. The Minister cannot deny that this will place many in a very difficult position when it comes to funding apprenticeships. Yes, most will be subject to the apprentice levy on the basis of their pay bill and will be able to draw from that pot—but the smaller ones will encounter real difficulties.
The Local Government Association has advocated that apprenticeships emanating in supply chains should be open to public bodies to assist them in reaching their target. The Government have changed their position—which I welcome—by allowing a figure of 10%, although that is said to be provisional, to be included. Can the Minister say how the figure will ultimately be arrived at? By that I mean: how will it be calculated? I believe that there is considerable potential for including supply chains, given the multiplier effect that they have.
In terms of social mobility, it is also to be welcomed that Mr Halfon, the Apprenticeships and Skills Minister, announced some £60 million this year for apprentices from disadvantaged backgrounds. Apprenticeships really can make a difference by giving young people opportunities that previously they were unaware of or turned away from. I look forward to hearing of at least a similar figure for the other three years of the scheme. In the meantime, as one who advocates moves that assist social mobility, the Minister will, I am sure, join me in welcoming the vote in your Lordships’ House on Monday on the Technical and Further Education Bill, which provided assistance for apprentices who might be dissuaded by families who stand to lose benefits if their son or daughter takes up an apprenticeship, when they would not do so had their offspring gone into further or higher education.
A similar situation was secured in that vote for care leavers in terms of bursaries. Both these measures will assist with social mobility and so, for consistency’s sake, surely the Minister can regard them only as positive developments. I trust that his colleague Mr Halfon will also adopt that view and will not seek to overturn the vote then the Bill returns to the other place.
Mr Halfon made an intriguing comment in the debate on these regulations earlier this week in relation to Schedule 2, excluding both Houses of Parliament. He mentioned that, although the ban on smoking in workplaces did not formally apply to the House of Commons, the Speaker had decreed that it does. Although I am not aware of the formal position in your Lordships’ House, I presume there must have been an equivalent decree by the Lord Speaker. So will the Minister say whether, although these regulations do not apply to your Lordships’ House, he would be in favour of seeking a means by which they could be applied? It would set an excellent example to other public bodies and there would be many opportunities for apprenticeships in interesting and fulfilling jobs within Parliament were that the case.
My final point concerns the gender balance within apprenticeships. It is widely acknowledged that 53% of apprentices are female, yet they tend to be in lower-paid sectors of the workforce. A year ago, in answer to an Oral Question in your Lordships’ House, the then Parliamentary Under-Secretary of State at the Department for Business, Innovation and Skills, the noble Baroness, Lady Neville-Rolfe, stated that since May 2015 there had been 366,000 apprenticeship starts in England and that, while a narrow majority were females,
“of the 74,060 apprentices in engineering and manufacturing”,—[Official Report, 14/4/16; col. 354.]
a mere 6.8% were female, while in ICT the figure was 17.5%. I doubt that those figures will have changed markedly in the intervening period, but these regulations allow the Government to lead by example and begin to turn them around, ensuring that young women are encouraged to apply for apprenticeships that both require and develop skills that involve the STEM subject areas. There is certainly a wealth of opportunity within the public sector for that gap to be addressed.
A year ago, the noble Baroness, Lady Neville-Rolfe, told noble Lords that only 26% of apprentices in her department were women. It would be both interesting and helpful if the Minister could tell noble Lords what the current percentage is within the Department for Education. His officials may have the figure at their fingertips—but, if not, I would be quite happy for him to write to me, including an outline of what specific plans his department has to ensure that it not only reaches a figure of 2.3% of the headcount as apprentices but indeed exceeds it. Can he say what the projected figure for the Department for Education in the first year will be?
I have posed a number of questions, not all of which the Minister will be able to answer in his reply, but questions of a wider nature will need to be resolved if the Government are to achieve the success that we on these Benches want to see in terms of a broad expansion of apprenticeships, not least in the public sector.
My Lords, I very much welcome the statement from the Minister. We have seen a revolution in apprenticeships, which of course was started by the previous Government. While I am in favour of targets, they have to be sympathetic to the quality of the provision—I would much rather see quality provision even if we do not reach the exact target that we want.
I have four particular questions. Some of my other questions have already been asked. First, the Minister said that there were not going to be subtargets for people from different ethnic backgrounds—men, women et cetera—but I presume that if, from the information we get back, we find a lack of opportunities for, for example, young people from particular ethnic backgrounds, we might have to revisit that issue. Similarly, if we find a concern about the spread of levels of targets related to age, we might have to revisit that as well. So while I accept his comment about subtargets, we have to keep this under review.
My second question is relevant to the target for local government of 125,000 apprentices but applies equally to other public sector employees. How do we ensure, given that local government is strapped for cash, that full-time permanent jobs are not replaced by apprenticeships to save money?
My third question is on reporting. Of course there has to be reporting back on numbers, but we have to keep it simple. We do not want to get involved in too much red tape. If, for example, a school is taking on apprentices, the last thing it wants is yet more form filling.
My fourth question is on the different levels. How can we ensure across the piece that apprentices cover each level? We do not want to see them predominantly at one level.
To conclude, over the next three or four years apprentices will revolutionise higher and further education. Already we see an increasing number of young people who might have chosen to go to university suddenly saying, “Ah, if I do an apprenticeship with, say, the BBC at level 7 in media post-production, not only will I not have to borrow and worry about finance but I shall get paid while I do it, I shall get practical experience, I shall get the equivalent of a degree and at the end of it I have a good chance of getting a job”—and I think that at levels 1, 2 and 3 we shall see changes as well. So that’s a yes to apprenticeships. I welcome the Minister’s statement and I hope that he will answer some of the questions that I have raised.
My Lords, I thank the noble Lords, Lord Watson and Lord Storey, for their comments and questions. First, I am pleased that in general they welcome what we are doing. As the noble Lord, Lord Storey, said, these initiatives started under the previous Government. We realise that this is long-term work. We fully intend to roll this out and stick with it over the long term. It takes many years to ensure the success of this sort of initiative.
The noble Lord, Lord Watson, asked about the Department for Education in relation to apprenticeship participation. This is a fair point. The Department for Education is confident that it will meet the target. I shall write to the noble Lord setting out precise numbers and the wider plan in the education sector. I shall also cover his other points as to the percentage of apprenticeships in the department and the percentage of women apprentices. I can certainly do that.
The noble Lord also asked whether the House of Commons or the House of Lords were in scope of the targets. In other words, would we and the other place be taking on apprenticeships? While we are not imposing this target on this House and the other place, there is nothing to prevent us or the other place from creating apprenticeships. We do not fall in scope because we do not seek to have Ministers tell us what to do.
I understand that the Minister cannot direct either House and I accept that. That is why I referred to smoking in the workplace. That, equally, cannot be enforced. However, it is de facto, if not de jure. I welcome the noble Viscount’s response because he is encouraging both Houses to adopt this measure. It is interesting to have that on the record. We shall see what figures emerge over the next two to three years and proceed with that, perhaps even jointly.
I entirely agree with the noble Lord that having this recorded in Hansard encourages the Houses to initiate it.
Perhaps more important, though, is the question that the noble Lord raised about the target and the clarity of the target—in other words, the 80,000 which I mentioned. I may have to write to clarify this matter further because it is somewhat complex. I say, to be helpful, that this is a proportional target. It is based on the proportion of public sector employees as part of the total workforce in 2015. As this target is set from 2017-18 up to 2020-21, the number is not an exact copy of the 2015 number. In addition, following reaction to the consultation, we have excluded certain bodies who presented a good reason for not being included. We reiterate that this remains an ambitious and transformative target. It is important to have targets, but it is not set in stone. However, the 80,000 figure is there, and it is meant to be.
The noble Lord, Lord Storey, asked about the support offered to engage those from BAME backgrounds. We are taking action in this area, as he will know. We have launched the diversity champions network, chaired by Nus Ghani MP, to champion equality and diversity. Public sector organisations, including councils and NHS trusts, are among our diversity champions. We are also celebrating the BAME apprenticeships in our Get In Go Far publicity campaign. The question that he really asked concerned what we would do if there was concern about the targets not being met. I reassure him that the targets in these areas will be kept under review. Although I cannot promise any particular action, being kept under review means that, if there were any concerns, they should rightly be addressed.
The noble Lord, Lord Watson, asked about child benefit eligibility in an apprenticeship. Ministers fully understand the intention behind the noble Lord’s amendment. The Government need to analyse costs and the impact on the wider system. It is best for the Government to respond to this in the other place.
The noble Lord, Lord Watson, also asked about supply chains in the target. Supply chains are mostly, normally, in the private sector, so they are not included. However, the Government are using their procurement for contracts of over £10 million to take this forward. In the Department for Transport, for example, we should see 30,000 apprenticeships in the road and rail sectors through the use of the Government’s procurement programme. We anticipate that this will be about 2.3% of employees in those workforces.
The noble Lord also asked about the target of 2.3% and whether a higher target would be achievable in later years. That is a fair question. As I mentioned, we are asking public bodies to have regard to this figure. Some will achieve it each year, and some may not. But where they do not achieve it in the early years, we will look to employers to make further progress. We will do our best to support them to make that progress.
I hope that answers all the questions. I will, of course, read Hansard to check what questions were raised—quite a few questions were asked by the two noble Lords—and I will, of course, write to them if there are other questions to be answered.
Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) (Amendment) Regulations 2017
Motion to Approve
My Lords, I am delighted to speak about these important regulations, which will continue to ensure the provision of five mandatory health and development assessments and reviews as set out in the Healthy Child Programme. It was a policy I first worked on over 10 years ago. Having had three children in that time, whose births and early months were not always straightforward, my wife and I know from personal experience the benefits of the programme.
The Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) and Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) (Amendment) Regulations 2015 transferred responsibility for commissioning public health services for children aged zero to five from NHS England to local authorities, allowing local public health services to be shaped to meet local needs. This includes responsibility for delivering the healthy child programme. This programme is the main universal health service for improving the health and well-being of children, providing families with health and development assessments and reviews, health promotion, screening and immunisation. This is supplemented by advice around health, well-being and parenting. The five reviews are offered by health visitors to pregnant women, new mothers and children from birth to age five and include the antenatal visit, the newborn review, the six to eight week check, the one year review and the two to two and a half year review. They are required to be provided by all local authorities in England.
I know that your Lordships will agree that health visitors play a crucial role in ensuring that children have the best possible start in life, and lead the delivery of the elements of the healthy child programme which relate to these children. Health visitors provide valuable advice and support to families and are trained to identify health and well-being concerns. Through the health visitor programme, the Government have supported the profession more than ever before to transform the service and I pay warm tribute to its excellent work. In April 2015, at the end of the health visitor programme, there was an increase of around 4,000 in the number of full-time equivalent health visitors in the workplace since May 2010. Health Education England is now ensuring sustainable development of the health visitor workforce and there are presently more than 800 health visitor student training places commissioned. This, along with service transformation, means that more families now have access to the support they need in those precious early years.
The Government are also committed to supporting school-aged children and young people by promoting their health and well-being through school nursing services. There are currently around 1,100 school nurses in England, supported by other professionals, such as community staff nurses, healthcare support workers and nursery nurses. In January 2016, Public Health England published commissioning guidance for school nursing which makes it clear that school nurses should be accessible and responsive to children’s needs. The current 2015 regulations, which place a duty on local authorities to provide the five universal health visitor reviews, contain a sunset clause and so will lapse on 31 March 2017—tomorrow. The legal obligation on local authorities to provide health visitor services is also set to lapse tomorrow. The draft regulations before the House will prevent this. The current regulations also include provision for a review to be undertaken of the operation of the regulations.
The Department of Health commissioned Public Health England to carry out a review of the operation of the five mandated universal health visitor reviews following the transfer of responsibility to local authorities, as set out in the 2015 regulations. A review was carried out in summer 2016 and Public Health England’s report of the review was published on 1 March 2017. The review found widespread support from local authorities and commissioners for the universal health visitor programme remaining in place, in order to secure the delivery of long-term benefits from the healthy child programme, including improved health and well-being outcomes for children and their families. There was also a strong view held by professional representatives of local government and the nursing profession that the services are essential for prevention and early intervention and a general agreement that they deliver a positive return on investment and contribute to other government priorities such as reducing childhood obesity, controlling tobacco and improving maternal mental health. I thank Public Health England for its important work on the review and for helping to inform these regulations.
Local authorities will continue to be funded to deliver the mandated health visitor reviews. They will receive more than £16 billion between 2015-16 and 2020-21 to spend on public health, which includes children’s services including health visitors. This is in addition to what the NHS will continue to spend on vaccinations, screening and other preventive interventions. The Government announced earlier this month that the ring-fence on the public health grant will be retained for a further year, until 2019, as we move towards implementing 100% local business rate retention. This is a step on the way to a more locally-owned system and will help smooth the transition by providing some certainty for the next two financial years.
It is right that local authorities should have appropriate flexibility to deliver against their local priorities, but it is also appropriate that there are some key requirements set nationally, such as the five universal health visitor reviews. By continuing these mandated elements of the healthy child programme, this Government intend to maintain consistency across all local authorities when ensuring the delivery of these services. The draft regulations before your Lordships today will remove the sunset clause from the current regulations, ensuring that local authorities continue to provide these important visits to families. Removing the sunset clause will ensure that the current duty on local authorities to provide these services does not lapse on 1 April. I am confident that this sends a clear signal to health visitors, family nurses, local authorities and the public of the Government’s ongoing commitment to universal public health support for pregnant women, children, and their families.
This Government are committed to improving the health outcomes of our children and young people, so that they become among the best in the world. What happens in pregnancy and during the early years of life has a huge impact throughout the life course. Therefore, a healthy start for all children is vital for individuals, families, communities and ultimately the nation. I commend these regulations to the House.
My Lords, I am very grateful to the Minister for explaining the intent of this statutory instrument. The Opposition supported the transfer of public health functions from the NHS to local government, including those for children from birth until the age of five in public health services. Indeed, that was the only bit of a lamentable Act of 2012 that we did support. We also support the provision of a universal health visiting service and the prescribed reviews, which are elements of the healthy child programme. The noble Lord has said that this decision was supported by the outcome of the PHE review, and I would like to come back to that.
I want first to refer him to the question of resources. He mentioned the changes in local government funding but he will be aware that, overall, the Government’s record in funding public health services has been lamentable. In February 2017, the Department of Health told local authorities that an average 3.9% real terms cut to health service budgets per annum would take place until 2020. This is a large reduction, as it accumulates. According to the King’s Fund, which has done an analysis of the impact that has had, as a result of these reductions stop-smoking services and interventions have lost 25% between 2015-16 and 2016-17, while other areas such as the health check programmes and sexual health services lost 7% to 14% of their funding. As the Local Government Association said, given that the Government issued a firm commitment to the NHS five-year forward view, with prevention put very much at its heart, to then make significant cuts to the public health service budget over the next five years sends entirely the wrong message and could undermine the objectives that we all share to improve the public’s health and keep pressure off the NHS and adult social care.
Recent work by the King’s Fund on sustainability and transformation plans—an Orwellian phrase, if ever there was one—points out that what is actually happening on the ground is going in the opposite direction to that which was set out in this plan. It is the same in public health. I would therefore like the Minister to explain a little more about how the Government justify the reductions in funding for public health services.
I refer the Minister to table 29 on page 58 of the report by Public Health England. It is a summary of written feedback from professional representative and membership organisations. Comments were made by the Society of Local Authority Chief Executives on the issue of the mandation of services, about which clearly local authorities have some reservations. It suggests that the Government collect and review all mandated public health services next year, including health visiting, when the overall position on local government funding and business rate reforms is clearer. In a sense, the Local Government Association has made the same request. Will the Minister inform the House whether the Government are going to respond to that?
On the outcome of services so far and the PHE review, it says that there was a statistically significant increase in the eligible population reach by a universal service during 2015-16. It states also that, largely, there is a positive national picture of progress with statistically significant improvement observed in many relevant outcomes over the lifetime of the national health visiting programme. However, it points to some large local variation and trends in the rates of breastfeeding, which it says are disappointing. It points also to the fall in the number of health visitors in employment in 2015-16. Will the Minister comment on the issue of disappointing rates of breastfeeding on the one hand and the fall in the number of health visitors on the other? What action do the Government intend to take on that?
My Lords, I am delighted to support these regulations because I am an enormous fan of a universal health visitor service, and in particular the healthy child programme. Our economy is never going to keep up with the demand for health services unless we pay more attention to the issue of prevention. That really is the public health agenda. Any doctor will tell you that you really must lay the foundations for a healthy body, lifestyle and habits in the early years or you will get illnesses later on. The review of the programme so far has been very positive. As the noble Lord, Lord Hunt, said, there have been significant improvements in the populations reached. However, we will not see the true benefit of this programme until we are years down the track and find that those young children who have been given a healthy foundation grow up to have fewer of the terrible but preventable chronic diseases that are costing the country so much.
I am very proud of the coalition Government’s vision of improving the health outcomes of children, young people and their families. Transferring the responsibility to local authorities was part of that: it gives them the chance to combine services, right up to the age of 19. However, as the noble Lord, Lord Hunt, said, there are serious questions to be asked. The first, of course, is about resources. Although these services are mandated, and although the Minister may say that the money has been ring-fenced, budgets have been cut and are going to be further cut. Local authority councillor friends of mine tell me that it is getting more and more difficult for local authorities to provide even those services which they are mandated to provide because things are getting so tight financially. I hope the Minister can give us some encouragement on that, although I somehow doubt it.
The other question on resources is about people. We have heard from the Minister about the number of health visitors in training. Are they going to be enough to serve rising demand? We have a rising population and a lot of additional young people and families who require services. A universal service is terribly important because you do not just get health problems among the most deprived. However, there is a great deal of poverty in this country and the need for these services is growing. How confident is the Minister that we will have enough sufficiently trained nurses, given the stresses on all health service staff and given that so many people are leaving and retention is getting more difficult? Are we going to have enough people?
Are there any plans to extend these services a little further up the age range? I am particularly concerned about the large number of children who are starting school between the ages of four and five already overweight, obese or with poor eating habits. So, although the healthy child programme and the reviews that are mandated here in these regulations go up to the final check at two to two and a half years, it is really important that we do it again just before the child goes to school, because at that point they are already at a disadvantage. Many of these children are from a disadvantaged background and sadly these problems occur more frequently in those backgrounds. They get to school and they are already developmentally a good deal behind children from more advantaged backgrounds. I think the proof that we have had over the few years that this programme has been in place is sufficiently convincing to tell us that perhaps we ought to extend it a little bit further.
My Lords, I am grateful to both the noble Lord, Lord Hunt, and the noble Baroness, Lady Walmsley, for their endorsement of the universal health visiting service. The noble Baroness is quite right to emphasise the long-term benefits that derive from a universal health visiting service of high quality and it is true that it is a great coalition achievement that we should be proud of. I am also grateful to the noble Lord, Lord Hunt, for his endorsement of not only the programme but also the mandated reviews and indeed of local authorities taking ownership of the programme.
To deal with the funding issue first, as I set out there is both the £16 billion that is going into local authorities for public health and the extension of the ring fence for another year. I will not gloss over the fact that it is a challenging fiscal environment. We know why that is; it is because the country continues to borrow more than it is bringing in in tax. I do not want to go into the reasons for that for fear of being accused of being too political, but we do operate in a challenging environment. That is why the business rate retention and reform is so important, to give local authorities more sustainability for their own funding base. I should also point out that, whether the issue is smoking or other risky behaviours, we are still making good progress, so it is possible to continue to reduce these kinds of risky behaviours, notwithstanding the pressures that are inevitably placed on budgets. In the round, total health budgets are increasing, not just in the NHS but across all health budgets. So while I do not gloss over the fact that it is a challenging fiscal environment, we are still making very strong progress, not just on health visitors but on a number of important public health issues.
In terms of the point that the noble Lord, Lord Hunt, made about the review by Public Health England of mandated services, obviously there are no plans to review the health visiting service, as I think we are all agreed that this is something we want to happen. Health visitors are popular and desired. I am not in a position to say at this point whether any other services are under review but I shall certainly write to him about that.
Both the noble Baroness, Lady Walmsley, and the noble Lord, Lord Hunt, asked about the numbers of health visitors. They increased by 50% in the last Parliament, which I think is a huge achievement. It has become slightly more difficult to track their numbers because they have a number of employers now that the budget has been devolved, but there are still very high numbers of them as a result of the changes made in the last Parliament. There are over 800 training places for health visitors and there are more nurses in the system as well. So there is investment going into the workforce, and I absolutely recognise that there has got to be a high-quality workforce. It is also the case that other healthcare professionals are able to deliver some of these services. If a family, which of course will more likely be a poorer or more disadvantaged family, is receiving support from a family nurse partnership, then the nurses that are delivering that can also deliver the health visit and some of the early reviews, so it is a mixed picture. The number of family nurse partnership places has increased over the past few years as well.
There are a couple of final issues. Breastfeeding is part of health visitor training and indeed their mandate is to encourage greater breastfeeding. I am not aware of the specifics of the variability. I shall certainly look into that. It is a critical part of maternal and child health and to be encouraged. I know that there are variations from one part of the country to another. Whether they are due to training and workforce or to other cultural or longer-term issues is a different question and it is bound to be more challenging in some areas than others.
The noble Baroness, Lady Walmsley, asked about the age range. It is important for the health visiting service to stick to what it does best. I certainly recognise the picture she is describing, having worked in primary schools. There is an increase in children coming unprepared to school, or increasingly to nurseries, whether in their eating habits or toilet habits or whatever it is. The increase in formal childcare places that has been made available to both three year-olds and disadvantaged two year-olds will go some way to addressing that but I shall certainly keep an eye on that issue.
Sorry to spring this on the noble Lord but there was something that I forgot to ask him. He mentioned the accessibility of school nurses. The fact is that if a school nurse is looking after five schools they are not terribly accessible. I wonder if he might write to me as to whether there are any plans to increase the number of school nurses, because that is part of increasing the child’s health right the way through the age range.
Yes, I shall certainly be happy to do that, probably looking at it in the round in terms of all the local health support that is available for school-age children. I hope, in responding, that I have been able to talk to all the points that have been made by noble Lords in this debate. I am glad that we all agree that health visitor support to families is vital and is about giving children the best possible start in life. It is why the Government have taken this action to continue to ensure the provision of the five mandatory health and development assessments and reviews so that this service continues to be provided for all families with children aged nought to five. I beg to move.
European Organisation for Astronomical Research in the Southern Hemisphere (Immunities and Privileges) (Amendment) Order 2017
Motion to Approve
My Lords, this order amends the 2009 order of the same name, and this revision confers on British nationals working for the organisation the limited privileges and immunities to which they are entitled under an international agreement between the organisation and the United Kingdom.
The European Organisation for Astronomical Research in the Southern Hemisphere is important to the United Kingdom. We contribute £17.5 million annually to its budget for a 16.4% share and 40 British nationals currently work there. The space sector offers significant research and economic opportunities. UK academics and businesses operating in the sector are internationally renowned and are in a strong position to take advantage of those opportunities.
I now turn to the details of the order. The European Organisation for Astronomical Research in the Southern Hemisphere was established by a convention in 1962. In 1974 its member states agreed by protocol to confer, in their respective jurisdictions, legal personality and certain privileges and immunities on the organisation and its staff. The United Kingdom acceded to the convention and joined the organisation in 2002. In 2012 we acceded to the protocol. The protocol was given effect in domestic law by the European Organisation for Astronomical Research in the Southern Hemisphere (Immunities and Privileges) Order 2009. However, the 2009 order failed to confer on British nationals working for the organisation the limited privileges and immunities to which they were entitled under the protocol. That error came to light in June 2014, and for the United Kingdom to continue its fruitful relationship with the organisation we must make this amendment order to give full effect to its international obligations.
The amendments concern three issues. First, on the taxation of employees, the protocol requires the UK to exempt from taxation the emoluments of officers who are British nationals or permanent residents. Of around 40 UK nationals or permanent residents working for the ESO, we know that at least 38 are based overseas in Germany or Chile; the remaining two have previously or occasionally work in the UK and are directly affected. Secondly, the protocol requires the United Kingdom to confer on officers of the organisation who are British nationals or permanent residents immunity from legal process in respect of their official acts, excluding motor vehicle offences and damage, which are not included in this immunity. Thirdly, the protocol requires the United Kingdom to grant social security exemptions to officers of the organisation who are British nationals or permanent residents.
The 1968 Act of Parliament under which the 2009 order was issued permits social security exemptions to be granted only to “high officers”, namely the director-general and his or her deputy. This amendment order therefore confers exemption from national insurance contributions on the director-general and his or her deputy. In respect of social security exemptions for all other officers, the UK has entered a reservation to the protocol. The UK filed this reservation with the French Ministry of Foreign Affairs, which acts as a repository for all papers relating to the convention and the protocol on 14 February of this year. I make clear that the other states party to the protocol have 12 months to object to the UK’s reservation. In the unlikely event that another state party objects, the reservation will not be valid between the UK and the objecting state. However, the UK’s membership of the organisation should be unaffected.
Article 2(3) of this order amends Article 15 of the principal order to ensure that, if the director-general or person appointed to act instead of the director-general has a form of British nationality or permanent residence, that person shall benefit from: immunity from suit and legal process in respect of official acts, excluding motor vehicle offences or damage; exemption from income tax on emoluments received as an officer of the organisation; and exemptions relating to social security.
Article 2(4) amends Article 16 of the 2009 order to provide that any officer of the organisation who has a form of British nationality or permanent residence, other than the director-general of the organisation or his or her deputy, shall benefit from immunity from suit and legal process in respect of official acts, not including motor vehicle offences or damage, and they will benefit from exemption from income tax in respect of emoluments received as an officer of the organisation.
Both the 2009 order and this order apply to the whole of the UK, but some provisions do not extend to, or apply in, Scotland. The opportunity has been taken to clarify which of the provisions in the 2009 order apply or extend to Scotland. Article 2(2) therefore inserts new Article 1A into the 2009 order to clarify the existing position. A separate Scottish Order in Council has been prepared in respect of those amendments within the legislative competence of the Scottish Parliament, and has been laid in parallel before that Parliament.
I reassure your Lordships that the privileges and immunities afforded to officers of the organisation, including those with a form of British nationality, are limited to those that the organisation needs to conduct its official activities. They are in line with those offered to officers of other international organisations of which the UK is a member.
Leaving the European Union will have no direct impact on the UK’s membership of the European Organisation for Astronomical Research in the Southern Hemisphere. The ability for UK staff to work effectively for the organisation before and after the UK’s departure from the European Union is controlled by our adherence to legislation that accurately reflects the convention and its protocol, and the privileges and immunities they afford to staff. In the light of that explanation, I beg to move.
I see that there are not too many volunteers for this one. This order appears to have had a difficult gestation period. It has gone through all kinds of hurdles and has failed at each one. That gives rise to a number of questions.
When I first saw that this order was on our forthcoming business, my noble friend Lord Foulkes suddenly thought that it was a great opportunity to raise the question of why a telescope on St Helena is not being funded by this organisation, as that might also ensure that we can improve travel and transport links there. However, on detailed reading I advised him that there was not really an opportunity to do that here, although I said that I would mention it. I hope that the noble Baroness could make some reference to that.
As the noble Baroness said in her introduction, we joined the convention in 2002, which of course was signed in 1962. According to the briefing from the Foreign Office—I express my appreciation to officials there, who helped me with the background and briefing on this—we signed the protocol in 2012, although it was given effect by this order in 2009, which of course is the beginning of the journey for this matter. I do not quite understand why the protocol was acceded to in 2012 when it was given effect by that order in 2009.
The error that the Minister referred to, namely that the 2009 order was defective as it did not give clear immunities in accordance with the protocol that we signed up to, was not discovered until June 2014. This error must have some implications; the individuals involved must have raised the issue, because they would have been working with people who were employed in accordance with the overall protocol. Therefore, when this error was discovered, how many people were affected by it, and is there any liability on the United Kingdom Government for this error? I assume that there may well be, if two people have been working in the United Kingdom. However, it may be more extensive; it may be that some people, this error being no fault of theirs, may be seeking some sort of recompense. I would like to be clear about that for the future.
I was also slightly concerned that the noble Baroness referred to the numbers that could potentially be affected. Of around 40, we know that at least 38 are based overseas in Germany and Chile. These are not huge numbers—I would have thought that we would be able to be a little more specific about the numbers involved and how we will put right this error.
On the general principle—the Minister referred to this—the briefing says:
“Providing privileges and immunities to International Organisations is standard practice where the Organisations need these privileges and immunities to operate and function effectively”.
That is accepted and I understand that, particularly if that is a requirement of the original protocol. It continues:
“The UK only agrees to confer privileges and immunities on International Organisations to the extent necessary for the proper functioning of the Organisation”.
What does that mean? How do we measure that? Why have we determined that certain individuals will benefit from the requirements of the protocol? This would be a classic episode of “Yes Minister”, I suspect, in terms of understanding the language and the errors and the fact that this 2009 order has been brought before the House three times and still failed. It would help in terms of general policy to understand exactly how these things operate. I hope the Minister will forgive me for this direct approach and will be able to answer.
As the noble Lord, Lord Collins, predicted, there is hardly a rush of enthusiastic interrogatories to deal with on this issue. I thank him for his insightful and helpful contribution to the debate. The amendment order simply corrects a number of errors in the order it replaces and aligns domestic law with the obligations we have made to the European partners, with which we share an endeavour to increase our knowledge of space.
The UK’s commitment to the European Organisation for Astronomical Research in the Southern Hemisphere remains unchanged. We remain committed to strengthening our position as a world leader in astronomy and space exploration. Belonging to this organisation brings with it opportunities from which British companies and our scientists, academics, astronomers and astronauts of the future are well placed to benefit.
I will try to deal with some of the points which the noble Lord, Lord Collins, raised. He mentioned the nature of the journey to this point. I will be quite candid. The journey has involved a road with a number of potholes, and a certain degree of stumbling into and over the potholes has taken place. Why has it taken three years since the order was laid? While the order was laid in 2009, the UK did not complete payment of all the joining fees until 2010 and thereafter we went through necessary internal processes to ensure that we acceded to the protocol. This process took two years as it was given low priority because it was likely to impact on very few UK nationals.
As an aside, the noble Lord mentioned his noble friend Lord Foulkes and the matter of St Helena. I have no information on that but I undertake to look into his question and to write to him. I should make clear that the current telescopic facilities are based in Chile.
The noble Lord also raised the important issue of why the staff of the ESO need privileges and immunities. It is a legitimate question and important we endeavour to answer it. The UK is obliged to confer privileges and immunities by virtue of its accession to the convention establishing the European Organisation for Astronomical Research in the Southern Hemisphere and the protocol on the privileges and immunities of that organisation. Privileges and immunities are important for the organisation to conduct its official activities in the UK, irrespective of whether it has a physical presence in the UK. In particular, tax immunities ensure that partner contributions are directed to the construction and operation of the project and not into tax revenue.
The other issue that the noble Lord raised in that connection—and again it is an important one—was its impact and the personnel affected. As I said, my understanding is that of the 40 identified personnel, 38 work in Chile and two have worked or sometimes work within the UK.
I make it clear that UK nationals or permanent residents working for the ESO overseas are not liable to pay income tax in the UK on emoluments received as an officer of the organisation. However, if UK nationals or permanent residents working for the ESO overseas have income from a second employment, business, or financial investments in the UK, they will be liable for UK tax on such income on the same basis as anyone else working abroad.
The noble Lord, Lord Collins, raised a pertinent point about the potential impact for persons now covered by the order. I make clear that Her Majesty’s Government are not legally financially liable because the amendment order does not include a retrospective effect. In other words, it does not say that the Government will refund income tax payments. However, we will be sympathetic to the concerns of the organisation or the individuals affected if we are approached.
The noble Lord poses a question that he knows I cannot possibly answer. I have not even given a commitment. I have merely, I hope, indicated a note of empathy in respect of the concern which he has raised.
The noble Lord was also concerned about whether this amendment order was the complete solution given the rather troubled history of where we have been and how we got there. Certainly, it is an important step forward in implementing the protocol in respect of officers with British nationality or UK permanent residence to the extent permitted by the Act of Parliament under which it is made. The Act does not permit us to confer by order the social security exemptions on any British nationals or UK permanent residents, other than the director-general. That is why I anticipated what the noble Lord might be interested in and obtained the specific information from the officials, which I was able to include in my speech. I hope that has reassured him.
I hope I have managed to answer the points raised by the noble Lord, Lord Collins. In conclusion, this Government remain committed to the European Organisation for Astronomical Research in the Southern Hemisphere and its ambitious programme to make scientific discoveries and look deeper into space than we have ever managed to do before. This will clearly be for the benefit not just of this generation but for many generations to come. I hope my comments have allayed any apprehensions that the noble Lord had.
Electoral Registration Pilot Scheme (England) (Amendment) Order 2017
Electoral Registration Pilot Scheme (England and Wales) Order 2017
Electoral Registration Pilot Scheme (Scotland) Order 2017
Representation of the People (Scotland) (Amendment) Regulations 2017
Motions to Approve
My Lords, I shall speak also to the Electoral Registration Pilot Scheme (England and Wales) Order 2017, the Electoral Registration Pilot Scheme (Scotland) Order 2017 and the Representation of the People (Scotland) (Amendment) Regulations 2017. The instruments will help enhance the operation of electoral registration across Great Britain. Noble Lords will be aware that individual electoral registration—IER—was successfully introduced in 2014 and for the first time ever enabled people in Great Britain to apply online to register to vote. Nearly 24 million people have applied to register under IER, 18 million of them online.
Applications to register to vote peak in the run-up to elections and during the autumn canvass, when each household in the country receives registration forms. Noble Lord will be aware that this process, and indeed registration overall, is costly for electoral registration officers—EROs. While the Cabinet Office currently provides direct financial assistance for registration linked to the introduction of IER, the total costs of the annual canvass are high, at some £65 million per year. The current process is inefficient, costly and burdensome for local authorities.
What is more, a large proportion of these costs relate to activities required by law that simply confirm that people are correctly registered. What is needed is a more effective and efficient system that targets resources on reaching out to underregistered groups to add new names to the register, rather than simply confirming names already there. The Cabinet Office is therefore working with EROs across Great Britain to pilot alternative approaches to the current paper-based, inflexible and prescriptive annual canvass. Three of today’s instruments will enable such pilots this year. The fourth instrument will enhance the operation of IER in Scotland to allow cost savings for EROs throughout the year.
I turn, first, to the annual canvass pilots for 2017. Three of these instruments establish pilot schemes under Sections 7 and 9 of the Electoral Registration and Administration Act 2013. As noble Lords may already be aware, Section 9D(3) of the Act requires the annual canvass to be conducted in the manner prescribed in the Representation of the People (England and Wales) Regulations 2001 and the Representation of the People (Scotland) Regulations 2001. This process requires EROs to send an annual canvass form—the household enquiry form, or HEF as it is known—to every property in their area. The HEF asks residents to set out whether there have been any changes in the composition of the household since the previous year’s canvass, and it enables EROs to identify whether any residents should be removed from the register or be invited to make an application. Response rates to the HEF are significantly lower under IER, as it is no longer a registration tool, yet, where no response is received, EROs are required to issue up to two further forms and to carry out at least one visit to the property.
These three orders disapply those requirements for 23 participating EROs in areas of England, Wales and Scotland. Instead, the orders require EROs in the specified areas to attempt to make contact with a person at each residential address in the area for which they act at least once between the date the order comes into force and 2 February 2018. The manner in which they do so, however, and whether they take further steps where no information is received at a particular address will be at the EROs’ discretion. This will enable EROs to test new and innovative approaches to canvassing—including using data, such as council tax data, the local land and property gazetteer, and internal local authority databases—to determine whether chasing responses to ERO inquiries is necessary. These approaches have been developed closely with the Electoral Commission, which is supportive of the pilots. The commission will be reporting on the schemes and will provide a copy of its evaluation to Ministers and the EROs by 29 June 2018. The order ceases to have effect on 6 July 2018.
The fundamental objective of the annual canvass—namely, the maintenance of a complete and accurate register through regular data collection—is and will continue to be a government priority. However, consultation with EROs and local authorities over an extended period has indicated that the annual canvass in its current form is not a sustainable way to achieve that aim. Many EROs, who are on the front line of electoral registration activity, have told the Cabinet Office that the canvass procedure is time-consuming and expensive. Electors will receive up to three letters and a visit from their local ERO, even if they are already registered, solely for the purposes of information gathering.
Last year, for example, huge numbers of citizens registered to vote in the run-up to the EU referendum in June. This year, many may register to vote in local and devolved elections in May, and perhaps even for a by-election as well, yet, when the annual canvass takes place between July and December, they will receive fresh inquiries in the form of the HEF about their registration status. The reality is that household churn is around 12% per annum—thus the majority of the canvass activity is redundant. Over half of households do not respond to the initial HEF, meaning that EROs are required to chase them up with the further two forms and a visit, despite the fact that 88% of households will be listed as “no change” on the electoral register.
This tremendously bureaucratic process is frustrating for administrators. Having to follow steps prescribed in statute is stifling their capacity to innovate and adopt new approaches to canvassing. Through knowing their local area or having access to local authority data, EROs may well be aware of the registration status of households in their area. However, the current system does not allow them to draw on their own expertise or on other information held by the local authority. This is not an example of “smart working”, and it does not allow citizens to “tell us once” of changes to their registration.
Furthermore, it is worth noting that the recent referendum was conducted using one of the largest electoral registers ever. With the advent of online registration, it is becoming increasingly apparent that electoral events can drive registration to new heights and that the current system of canvassing around six months in advance of a poll, through an inefficient cycle of paper HEFs and household visits, may not be the best approach for the modern world.
It is important to note that the canvass itself is purely an information-gathering process. The pilots will not alter the requirements for the registration process and for invitation to register forms to be sent to individuals. Therefore, what is being proposed—the impetus for which has come from EROs themselves—is to enable local authorities to test alternative methods for conducting the annual canvass that have the potential to be more cost-effective while still securing the same or higher levels of information on changes to the register compared with the current annual canvass process.
Operations along these lines were successfully carried out in 2016. Specifically, during the 2016 annual canvass process, the Cabinet Office ran initial pilots in three areas of England—Birmingham, Ryedale and South Lakeland. In order to broaden the evidence base, however, further pilots, including in Wales and Scotland, are needed to inform a wider change to the annual canvass across Great Britain. Early results from the pilots last year have been very promising, with provisional figures indicating that the costs of the alternative canvasses were substantially lower than those of the legislated canvass due to the reduction in printing, paper, postage and staffing costs. Ryedale, for example, estimated that the new methodology it employed resulted in an 89% saving in staff time and costs. The Cabinet Office and the Electoral Commission are currently analysing the full cost data of the whole process and intend to report initial results in May.
In addition to the pilot areas from last year, the areas selected to participate in 2017 are Barrow-in-Furness, Bath and North East Somerset, Blaenau Gwent, Camden, Coventry, Derbyshire Dales, Dumfries and Galloway, East Devon, Glasgow, Hounslow, Luton, Newcastle, Salford, South Holland, South Norfolk, South Oxfordshire and Vale of White Horse, Sunderland, Torfaen, Wakefield and Woking.
Although the initial results suggest that alternative approaches to the annual canvass can be at least as effective as the currently prescribed method, the Cabinet Office intends to ensure that applying this learning to local authorities across Great Britain, including Wales and Scotland, generates similar results. If successful, the pilots will demonstrate that the annual canvass does not need to be so prescriptive and that a number of alternative methods are just as effective and more cost-efficient, potentially saving at least £20 million from the cost of electoral registration each year.
The 2017 pilots will take place in local authority areas across England, Wales and Scotland. The areas were chosen using robust research methodology to ensure a spread of electoral register churn, population size, chosen pilot model and region. In each area, the EROs will be operating control groups and pilot groups so that the results of these approaches can be rigorously evaluated.
Four models of piloting activities will run with these EROs in the 2017 pilot scheme. Each model has been created based on proposals from EROs, and each participating ERO has chosen the model they wish to apply to their area based on their local knowledge and expertise. Each model reduces the number of paper communications sent to electors, using means such as telephone and email channels, and one model uses existing local data to determine where best to focus resources. Again, these ideas have all come from the experts on the front line and are designed to improve the citizen experience as well as ease administrative burdens on hard-pressed electoral teams. The elector will benefit from the local authority being able to redirect resources and target canvassing more effectively towards underregistered groups.
I will now give more detail on each pilot model in turn to offer some insight into the innovative approaches being taken to move us towards a more effective and targeted canvass process.
The first model, which is being piloted in areas such as Torfaen, Ryedale and Barrow-in-Furness, tests the use of a household notification letter, or HNL. Under this model, the ERO will send all households in the treatment group a HNL instead of a standard household enquiry form. The HNL lists the details of everyone registered to vote in that household and advises residents to take action only where the details held are no longer up to date. This model allows EROs to reduce the number of paper communications sent to electors and also reduces the number of expensive household visits required.
The second piloting model involves the use of email in areas including Hounslow and Woking. For this model, an electronic HEF will be sent to households by email, chased with a visit if necessary. Where no email is held, households receive a postal HEF followed by a visit. This model further tests the use of email communication between EROs and electors, following the uptake of email invitations to register in England and Wales. This also expects to reduce the number of overall communications with electors including, again, expensive household visits.
The third model uses a discernment step to identity different types of properties, in areas such as Glasgow and Birmingham, so that EROs can take the most appropriate approach. This discernment could involve local data matching using sources such as council tax, or assignment by ward based on the ERO’s expert knowledge. Depending on the assignment, some properties will receive a HNL, while others will be more actively canvassed where a change in household composition is suspected. Where possible, communication will be sent to these households by email before being chased with postal reminders and visits if necessary. This model allows EROs to use the existing data and knowledge they have of their areas to target resources better as well as use digital means to communicate with electors.
Finally, a fourth model tests the use of telephones in the canvass process. Areas participating in this model include Dumfries and Galloway as well as East Devon. Under this model, EROs will send initial postal HEFs but will then be able to chase non-responding households by telephone, rather than by additional canvass forms or household visits. Where no telephone number is held, households will receive two letters followed by a visit. This model allows EROs to test the use of telephone canvassing and should also reduce the number of household visits and postal communications.
The Government have consulted widely, including with the Electoral Commission, on the pilot proposals. The commission has been very supportive of these plans and has been involved from the early stages of their development. The Electoral Commission has also been consulted on these orders, on which it is content, following the Cabinet Office’s confirmation that Section 13 of the Representation of the People Act 1983 remains applicable to participating local authorities during the pilot scheme so that participating authorities are still expected to publish their registers by 1 December 2017, unless exceptional circumstances apply, such as a local election, where they are required to publish a revised register by 1 February next year.
Consultation has also taken place with bodies such as the Association of Electoral Administrators, the Society of Local Authority Chief Executives, and the Scottish Assessors Association. This is in addition to the work the Government have been doing with interested councils directly and who have helped shape the four pilot models. The Information Commissioner’s Office was also consulted during the development of these pilot orders and is content that they do not raise any new or significant data protection or privacy issues.
Equality impact assessments have been completed to ensure that underregistered groups, as well as those groups protected by virtue of the Equality Act 2010, will not be negatively impacted by these pilot schemes. Privacy impact assessments have also been completed to ensure that no new negative privacy impacts under the Data Protection Act 1998 will arise.
While the purpose of these pilot schemes is to give EROs the space to innovate and test alternative and more effective approaches in relation to the annual canvass, I stress that the integrity of the register will be maintained throughout the pilot schemes. EROs have a duty, under the Representation of the People Act 1983, to maintain their registers and nothing in these orders change that.
I turn now to the draft Representation of the People (Scotland) (Amendment) Regulations 2017. These regulations take steps to allow Scottish EROs to benefit from the same cost optimisation measures as have been available to English and Welsh EROs since last year. This will be achieved by amending the registration application forms for Scotland to allow applicants to identify that they are the only person resident at the address aged 14 or over. It also provides discretion to EROs as to whether to canvass a property within 12 months of an indication of single occupancy. Allowing EROs to make this choice decreases the amount of resources spent processing applications and increases the efficiency and speed of the registration process.
Secondly, the regulations will modernise the system of registration by enabling Scottish EROs to send invitations to register and ITR reminders by electronic means if they wish to do so. This delivers a quicker and more efficient service to the elector, who expects electronic communication in this age, as well as enabling cost savings. The instrument will also allow an attester to an applicant’s identity to be registered in any local authority area in Scotland. At present, both the attester and the applicant must be registered in the same local authority. This provision will assist those applicants whose identity cannot be verified using the Department for Work and Pensions matching process, local data matching or by documentary evidence who have to provide an attestation to verify their identity. This change will result in more eligible applicants becoming registered to vote. In addition, the regulations make a minor amendment to correct an error in an existing regulation concerning the requirement to provide fresh signatures following rejection of a postal voting statement.
The measures were conceived to generate savings from the cost of the annual canvass process to counteract the fact that the introduction of IER has increased the cost and administrative burden on local authorities. These provisions also aim to reduce unnecessary ERO correspondence and contact. Preliminary estimations project that these regulations will reduce the overall cost of IER in Scotland by around £125,000 for the single-occupancy provision and around £400,000 for email ITRs per year. The Electoral Commission was consulted during the development of these measures and on the specifics of this order, and it is supportive of these regulations offering the same provisions to Scotland as already exist in England and Wales.
The Cabinet Office has worked very closely with Scottish Government officials to ensure that these measures can be in place for the 2017 annual canvass, and to ensure that Scottish EROs are able to participate in the aforementioned pilot schemes. The Minister for the Constitution and the Scottish Government’s Minister for Parliamentary Business agreed last year for these instruments to make provision in respect of both the parliamentary and local government registers in Scotland. This will be done before commencement of the relevant provisions of the Scotland Act 2016, which will devolve competence in relation to the local government register in Scotland. This was agreed in order to ensure that Scottish EROs could take advantage of these cost- optimisation measures in respect of both the parliamentary and local government registers this year, and that local authorities in Scotland are represented in the canvass pilot schemes.
With this in mind, the Government believe that the instruments allowing for annual canvass piloting schemes are a crucial step towards improving the annual canvass and wider registration process. I therefore commend them and hope noble Lords will also agree that the statutory instrument relating to cost-optimisation measures in Scotland helps move electors and electoral administrators towards an enhanced IER system for members of the public and for EROs as part of the continued successful implementation of IER across Great Britain. I beg to move.
My Lords, I was waiting to see whether anyone else would intervene. I will not detain the House very long. Will the Minister, either now or in writing—I promise I will not talk about Sheffield this afternoon—be kind enough to reflect on the juxtaposition of the existing Data Protection Act 1998 with the Digital Economy Bill in relation to data sharing and, crucially, with the general data protection regulation of 2016, which the Government indicated on 1 March they would be taking forward and putting on statute the necessary changes, prior to implementation, in May 2018?
I welcome very strongly the proposals for the pilot schemes. The discerning approach will be very important for getting to households that are difficult to reach, dealing with churn and ensuring that, particularly with the Glasgow and Birmingham proposition, there is a real understanding of the difficulty within inner cities. I am concerned that we do not get caught with what is otherwise a very sensible privacy change—a tightening of the regulations under the GDPR—taking into account, as the Minister indicated, that there will be a privacy impact assessment. Will he say a little more about that?
My Lords, before I comment specifically on the statutory instruments before the House, I will raise one or two questions relating to the general principle of ensuring that our electoral rolls are as accurate and complete as possible. I see the noble Lords, Lord Kennedy and Lord Rennard, in their seats. I think the noble Lord, Lord Rennard, in particular is likely to touch on the subject if he speaks soon after me. I am concerned, as I think we all have been concerned and successive Governments have been concerned, about the fact that the register is accurate for certain groups—the noble Lord, Lord Blunkett, touched on that in part in his brief comments—but large groups of the population are regularly missed in one form or another.
I mentioned this to the noble Lord, Lord Kennedy, in advance, but I did not have a chance to mention it to the noble Lord, Lord Rennard. Yesterday during Questions a Question came up relating to the 18 pilot projects identified around the country as a result of what one might describe as the Pickles review. I have been informed—I have not had the chance to check it, but I believe it to be correct—that in the case of both Burnley and Pendle the Labour and Liberal Democrat councillors on those councils have voted against participating in the schemes, despite the fact that in each case they are among the 18 authorities identified for review. I will say only this: I regret it enormously if that is the case, because being innovative and trying to find ways to deal with fraud and underregistration are key to the processes of our elections, whether they be local or national.
Specifically on the statutory instruments, I broadly welcome them for the same reason that the noble Lord, Lord Blunkett, identified. We should be innovative. Society is changing quite markedly. It is much more mobile than it was when the original legislation was introduced. We have very different forms of campaigning nowadays from those we had when I was somewhat younger. Therefore, we have to find ways of getting hold of potential voters in whichever way we can. I shall comment also on the Minister’s opening remarks, which concentrated rather too much for my comfort on savings. We were not given indications relating to the accuracy of the trials that have taken place so far. The Electoral Commission and other interested parties are conscious of not only the potential savings but the potential accuracy and gain achieved by any particular process within this trial.
I notice that the noble Lord, Lord Young, in his opening comments said that the results had been fairly positive from 2016. I recognise that it is a small step forward with a limited number of trials in local authorities. That is a good basis from which to work. Given where we are in the electoral cycle, and given that there are discussions with the local authorities that he identified, I shall ask for clarification just for confirmation that these projects will not interfere in any way with the local elections that are taking place. I assume that most of the preparatory work will take place later in the calendar year, but I would like that confirmation because a fair number of the local authorities to which he referred have elections—either in Scotland or Wales or in the county council elections this year.
I must admit that I am surprised and disappointed that the locations that he identified were the ones chosen. I think I understood him correctly to say that they would provide a range of local authorities to test the system. The Minister referred to model 1. Looking at the order to identify the local authorities involved, two of the authorities in model 1 are Welsh: Blaenau Gwent and Torfaen, which demographically are very similar. As far as I could see, there was no marked variation between those two local authorities: they are essentially valley mining communities. They touch on my other keen interest, rugby, in that they have produced many of the great Welsh rugby players and the great Welsh rugby teams—but they are very similar. If one was looking for Welsh authorities, I would have thought that one would not go for two Welsh valley authorities.
Equally, on the same list we have the authorities of South Holland, South Norfolk and Ryedale—which, again, are very similar in general make-up. We do not have one London borough in that group, but we have two metropolitan authorities. One could reasonably argue that the metropolitan authorities balance for a London authority, but it would have been better, rather than having two metropolitan authorities, Newcastle and Wakefield, if we had looked for slightly different mets across the country.
The second group, the email group, has a balanced combination of authorities: Bath, Coventry, the Derbyshire Dales, Hounslow—the first local authority in London—and Woking. The third category, described as the discernment model, has one London authority: Camden. I am sure that Camden will produce stellar results in its review. I declare a personal interest here: my niece is the Labour leader of that council, so I am sure that it will do its job very effectively indeed. Alongside that authority we have Salford, Sunderland and Birmingham—again, a combination of three mets, which I do not think shows a reasonable balance. That is combined with South Lakeland. There are no unitary authorities from any part of the country. That is not a particularly balanced grouping.
I have the same observation relating to the fourth grouping, the telephone model, where four local authorities are identified in England: East Devon, Luton, South Oxfordshire and the Vale of White Horse. Three of those are district councils; most people would regard them as rural and fairly wealthy; and we have the rather odd position where South Oxfordshire and the Vale of White Horse—I again declare an interest as, being Lord Hayward, of Cumnor, I originate from one of those local authorities—are neighbouring authorities in Oxfordshire. You will not get much variation of information by picking that as a group. Therefore, if it is possible at this stage, I ask whether some of those local authorities could be switched round. It may be too late, but I make those observations on the different groupings.
I shall ask one final question relating to the use of telephones. More and more people do not have a landline. They operate totally on mobiles. It was not clear from the Minister’s opening comments whether the tests would include solely landlines or a combination of landlines and mobiles, or whether the authorities have access in one form or another to mobile numbers—I would be surprised if they do not in most cases. Those should be used, in the right circumstances and with the right qualifications—the noble Lord, Lord Blunkett, referred to data protection—because that will help the process.
I have made a few overall comments. I hope I have raised specific questions that can be dealt with either today or at a later stage in a written reply. But, overall, I broadly welcome the process as long as the objective is to achieve greater rates of registration, as well as the saving to local authorities in the process.
My Lords, the sentiments expressed in the Minister’s very thorough brief about modernisation, efficiency and cost saving are very worthy and have my support. But we should consider the issues very carefully because none of the sentiments outweigh the overarching principle of the requirement in a democracy to make sure that every citizen entitled to vote is enabled to do so by being on the electoral register.
During the passage of the Electoral Registration and Administration Act 2013, I was among those who fought to preserve the principle of the annual canvass, and we ensured then that it was retained. After much deliberation, the canvass was seen—as the noble Lord, Lord Hayward, has just said—as an essential part of ensuring both the completeness and the accuracy of the electoral register. But the principle was hotly contested during those debates. Certainly, there were some within the Government who simply argued that it should go as a cost-saving measure; while others of us argued that ensuring that people entitled to vote were registered to do so was part of the cost of democracy and essential to the principle of fair elections. We come now, four years later, to look again at the issue of the annual canvass and how it can best be operated.
People like me have accepted that there might be better and more cost-effective ways of canvassing to complete the register and ensure its accuracy. Those of us—and there are many of us in the House—with long experience of canvassing in elections know a lot, I suspect, about targeting canvass efforts. In some areas it may be worth knocking on doors several times, while in others it may perhaps be impractical to call upon households personally. During the discussions four years ago one Minister told me that he thought the annual canvass was now completely redundant. He had been taken out by his advisers to a gated community and shown how it was almost impossible to gain access to canvass. It was suggested to him that the principle of the annual canvass should therefore be dropped. But such gated communities represent less than 1% of all households in the UK. The vast majority of households are accessible, and canvassing them is often an essential part of the process of completing the electoral register.
What I think can be done, however, is to use more modern methods to try and register as many people as possible in advance of attempting to call personally on doorsteps. Concentrating canvassing efforts on particular households where there is a need to make personal contact, and perhaps on low-registration areas where, for example, there may be many homes in multiple occupation, may be a higher priority—but all of this is predicated on making every effort to get people registered in ways that do not require a personal visit. If we are to extend this principle and vary the methodology involved in the annual canvass, I would like to ask the Minister about a couple of issues relevant to registering more people in advance of the doorstep call.
First, as we have discussed in correspondence, there is the provision of national insurance numbers to 16 and 17 year-olds. The Minister has told me that Her Majesty’s Revenue & Customs is willing, in principle, to supply to young people with their national insurance number information about how it can be used to register to vote. That clearly will save money and reduce the number of people who need to be called on personally. Since then, the Electoral Commission has said that there should be an automatic process of registration, so that when HMRC issues a national insurance number to a 16 or 17 year-old they are automatically included on the electoral register. That must fulfil the cost-saving principle that the Minister outlined in detail and would be a much better way of ensuring that 16 and 17 year-olds are included on the register. At that age they are already able to vote in Scottish Parliament elections, and it will ensure that they are on the register by the time they are 18 and can vote in England, Wales and Northern Ireland.
Secondly, I come again to the issue of student registration. It is particularly hard under the old-fashioned household canvass rules to canvass students in halls of residence and put them on the electoral register. The Explanatory Memorandum for the statutory instruments states:
“The purposes of these pilots are to gather evidence to establish whether alternative methods can be used to conduct the canvass that are just as efficient and more cost effective”.
We know that the traditional annual canvass method is not appropriate for students and we already know from pilots—which the Cabinet Office itself has referred to—that it is far cheaper and much more effective to offer students the opportunity to go on to the electoral register at the same time as they enrol for their course.
We know, for example from the Sheffield pilot that we debated, that students can be registered at a cost—according to Sheffield Council—of approximately 14p per student, compared to £5 per student using the traditional methodology which includes the annual canvass. In terms of completeness, which is a stated aim of government policy, the Sheffield model is registering students at a rate of about 76%, compared to institutions of a similar size registering students at a rate of only around 13%. The models may need to vary for different higher education students, but, if we are to change the principles of the annual canvass, we need to use all these methods to make sure that underregistered groups are more effectively represented on the electoral register.
I have a couple of other questions relating specifically to the paperwork accompanying the statutory instruments. Can the Minister tell us a little more about what he means by “at least one”? It says in the paperwork that there should be at least one call at the door or attempt to canvass the voter. But that, of course, does not mean very much. It may mean just one attempt or it might mean more. I hope the Minister will provide guidance. The policy background section of the Explanatory Memorandum says that,
“there will be a minimum requirement that they attempt to make contact with a person at each residential address in the area for which they act at least once during the pilot period”.
That should mean they will try to make contact as many times as is reasonably necessary and cost-effective to try to complete the registration process. It should not mean that the norm should be one attempt to call at a door. Those of us with experience of elections know that as politicians we often call at the same doors many times until we meet the voter we need to meet. This process should also involve making as many attempts as are reasonable to see the person who needs to be registered, bearing in mind the cost savings from registering many other people in other ways.
Finally, the privacy impact assessment, discussing the impact of canvass pilots on individuals, says that,
“individuals are already required by law to provide EROs with the information in order to populate the electoral register”.
That is a simple statement of fact but I often hear somewhat different statements coming from the ministerial Benches, implying that the electoral registration process is not compulsory. It is true that it is not compulsory to register to vote but we had great and controversial debates in 2013 to ensure that certain principles of compulsion—that someone can be fined if they do not complete the household inquiry form and be subject to civil penalties if they then do not comply with the ERO’s further requirement to provide their details—are made known. Since it is clear within this statement that there is an element of compulsion, I ask the Minister to ensure that in the future the Cabinet Office will make it plainer to people that there is a requirement to comply with the process and, in particular, that the forms sent out by the 450 different EROs across the country asking people to register make plain that they are compulsory. We fought in Parliament four years ago to maintain the principle, which was introduced many decades ago—the fines were increased substantially in the period when Mrs Thatcher was Prime Minister—that people should understand that it is a civil obligation to register to vote as well as being a benefit to themselves. That element of compulsion must properly be made known if we are to do things such as reduce the cost of conducting the annual canvass.
My Lords, first, I make my usual declaration that I am a councillor in the London Borough of Lewisham and a vice-president of the Local Government Association. The four statutory instruments we are debating today are ones that I accept, as far as they go. I broadly welcome the process outlined by the Minister. Certainly, the entitlement to vote and the accuracy and completeness of the register are the most important things we are debating here. That underpins all this. I have some wider comments and one or two questions for the Minister but generally I welcome the orders and regulations and I am very happy that we are exploring new methods of getting people registered to vote.
On matters concerning elections and electoral registration, it is always desirable to get agreement among the interested parties on the way forward. I accept that that is not always possible but it is a desirable aim nevertheless. Changes should be implemented carefully, should be thought about, should seek to improve voters’ engagement in the electoral process and should command wide confidence. In that sense, pilots are a useful tool to see how certain measures will play out in practice, followed by proper evaluation and informed policy decisions. Can the Minister tell the House why the decision was made to extend these pilots for another year? I cannot believe that the Government have made this decision in isolation. But it is not clear from the papers why they have done so.
There is no mention of the political parties being consulted on the regulations. Will the Minister confirm that neither the Electoral Commission nor the Cabinet Office team that meets the political parties on a regular basis have brought these regulations anywhere near them? Of course, the Parliamentary Parties Panel is a statutory panel set up under PPERA. If that is the case, does the Minister agree that that is regrettable and should be rectified quickly? The political parties use the electoral register for their campaigning, they understand the registration process, and they have a legitimate voice that needs to be heard in any discussions on these matters.
I refer the Minister to page 3 of the Explanatory Memorandum to the Electoral Registration Pilot Scheme (England and Wales) Order 2017; he mentioned it in his introduction. Referring to the annual canvass, paragraph 7.1 in the section headed “Policy background” says:
“In its current form under IER, it is proving to be an unsustainable cost burden for local authorities to administer”.
I thought that was an interesting comment. I must say, it is not the biggest issue that comes up when we discuss finance and budgets and unacceptable cost burdens at Lewisham Council. The noble Lord, Lord Rennard, may have let the cat out of the bag by telling us that these issues were discussed in the coalition Government in 2013. Of course, members of that coalition wanted to bring forward these proposals then.
I had a look at what the Local Government Association was saying and I could not find any mention at all of the unacceptable cost burdens of the annual canvass—not a thing—in its campaigns, press releases or anything else. I then had a look at London Councils and again there was no mention in any of its campaigns or media releases about these unacceptable cost burdens and the problems being caused for local authorities. Both organisations are well known to Members of this House. They are expert at getting their views across to us when they have issues they want to raise with us. But I have had absolutely nothing—not a letter, not an email, not a text message, not a phone call—from these bodies that represent local government.
Of course, there are many issues that these two bodies are interested in: the housing crisis, the social care crisis, education funding, public health budgets, business rates, pavement parking, homelessness and the lack of funding for that, bus funding, and many other issues—the list goes on and on. Many of these issues are putting local authorities in a difficult situation and putting pressure on budgets, but the Government are not the slightest bit interested in dealing with them. I also had a look at SOLACE and the AEA. Again, they are silent on these issues and do not appear to be campaigning on them at the moment.
It really is a bit rich for the Government to hide behind the suggestion that there are all these concerns from elsewhere in local government. The Government do not have a good record here. They sped up IER, against the advice of the Electoral Commission. They reduced the transition period for IER by one year. They threw out the consensus on that point. They moved ahead with reducing the number of seats in the House of Commons by 50. They removed voters from the electoral roll, against the advice of the commission, and of course that helped them in their redistribution of parliamentary seats and limited the scope of electors to get involved in local inquiries. At the same time, we all know that they made a record number of appointments to your Lordships’ House. Their claims about cutting costs just do not hold water.
Democracy costs money. We should cherish it and pay for it. We need an efficient, well-run, properly resourced electoral registration service in every part of the United Kingdom. In comparison with other services, the costs involved are not huge and the Government should be seeing how they can use every avenue of the state to get and keep people registered to vote. They should be learning from other parts of the United Kingdom. How does the Electoral Management Board in Scotland work in getting people registered to vote, compared with what happens here in England and Wales?
Pilots are good to see how we can efficiently and expertly register people to vote. There is nothing presently in force that stops EROs making any innovation, and many EROs do an excellent job of innovating to get people registered to vote. We should be looking at the incentives to get people on the rolls. What are schools, colleges and universities doing? What can we learn from the schools issue in Northern Ireland? Many noble Lords from all sides of the House have raised that and so far the Government have not been interested at all in bringing it into play in England. We should look also at what we can learn from other parts of the world.
I worry that the real agenda is just to cut the need to send out a prepaid envelope and a form and to avoid knocking on the door, with very little else under that. I am happy that we have new procedures and new ideas. We have to be absolutely sure that we are not making it any harder to get people registered to vote. I am not confident that so far the Government have done that.
My noble friend Lord Blunkett raised some very important points. The noble Lord, Lord Hayward, spoke about the two local authorities. I do not know that case but if that is the situation, it is regrettable. All the councils that have been invited to be part of the pilot should be part of it when it takes place next year. He made a very important point about savings. I am happy to make savings but, again, the important point in all this is the accuracy and completeness of the register. That must be paramount for all of us. The noble Lord, Lord Rennard, made some important points about automatic registration. Again, young people and students are a very important group and we must make sure that we get them registered. I know that many councils and EROs have worked closely with universities and colleges. We need to ensure that that happens as well.
I am happy to agree the orders and regulations before us today, although I worry about the Government’s real intention behind these matters.
My Lords, I am grateful to all noble Lords who have taken part in this debate and for their broad welcome for the initiatives that are in the orders before the House.
In response to the noble Lord, Lord Kennedy, I am grateful for his welcome for what we are doing, but there were some uncharacteristically partisan comments in his speech. On the size of the House of Lords, I just say, as somebody who was Leader of the House of Commons at the time, that if his great party had supported the programme Motion on the House of Lords Reform Bill, the House of Lords would be a lot smaller than it is now. His party bears some responsibility for the failure to get the numbers down to a more manageable level. I will put that on one side because I know the noble Lord did not mean to stimulate an aggressive partisan debate on these non-controversial orders.
I will try to respond to the issues that were raised. The noble Lord, Lord Blunkett, raised the issue of privacy. Of course I confirm that the protection of personal data is important. As I think I said, the Cabinet Office carried out a privacy impact assessment which took into account privacy impact assessments commissioned from all the participating local authorities. The provisions before us do not have any significant further impact on an individual’s privacy than the current legislative requirements concerning registration. They simply support the EROs in carrying out their legal duty to take all the necessary steps to maintain registers of electors in their area. As I said, we have consulted the Information Commissioner’s Office on this order and it does not consider that the proposed measures raise any new or significant data protection or privacy issues. The noble Lord also raised some issues about the Digital Economy Bill and I would like to accept his generous offer to pursue those in writing.
My noble friend Lord Hayward commented on the selection of the areas for these pilots. As I said, the areas were chosen using robust research methodology to ensure a spread of electoral register churn, population size, chosen pilot model and region. He asked whether it was too late to amend the orders before the House. I think he knows the answer perfectly well—it is too late. He also asked about next year’s pilot of ID in polling stations. I entirely agree with him that it would be in the interests of those local authorities which the Electoral Commission has identified as being at risk to participate in those pilots. The list of pilots to be included in next year’s scheme has not been decided but I certainly take on board the issues that he raised. I will come back in a moment to some of the other issues he touched on.
The noble Lord, Lord Rennard, mentioned the issue of registering at the same time as one gets a national insurance number. That is a move towards automatic registration which so far the Government have resisted. We believe it is up to the individual to register. I am not absolutely certain that what he suggests would necessarily work because of other issues about eligibility; for example, somebody might already be registered. I am not sure whether the nationality issue might have been addressed. However, we are trying to nudge. The noble Lord referred to the correspondence that we are having at the moment which we are taking forward to encourage people to register at the same time as they have an interface with a government department.
On the issue of telephones, whether landline or mobile, it depends on what number the elector gave the local authority when they registered online or were otherwise in contact for the purposes of council tax, or what have you. The pilots do not have specific rules for whether a landline or a mobile is used.
On the question of compulsory or voluntary registration, the noble Lord accurately described the current system; namely, it is not an offence not to register. However if your name is included on a HEF and the ERO then contacts you, it is an offence not to reply. The forms are designed by the Electoral Commission and the EROs may issue a requirement to register and issue a civil penalty for non-response where they think that that is appropriate. However, I will pass on to the Electoral Commission the noble Lord’s suggestion about making the powers clearer.
I reassure the noble Lord, Lord Rennard, that the annual canvass stays. I think I made that clear at the beginning. The fundamental objective of the annual canvass, namely the maintenance of a complete and accurate register through regular data collection, is and will continue to be a government priority. I hope I can set the noble Lord’s mind at rest on that point.
South Oxfordshire and the Vale of White Horse are included because they jointly run electoral and registration services. That is why they have been put together.
I was asked what action is being taken to ensure that the pilots do not negatively affect the completeness and accuracy of the pilot areas. The EROs will still be required to make contact with every household at least once and any deletion from the register still requires two sources of evidence.
I return to the question asked by my noble friend Lord Hayward. The EROs themselves chose the pilot models most appropriate to their areas. It is therefore likely that similar authorities will chose similar pilot models. There should be no impact on the local elections in that the annual canvass starts in July after this round of local elections and the register has to be completed by 1 December, so there should be no impact on the timing of next year’s local elections.
We are working through the details of the polling station pilot schemes, which I mentioned a moment ago. The number of pilots to be run will depend on the scope of what is to be tested and the number of local authorities that come forward with suitable applications. The evaluation of these canvass pilots will be due by 29 June next year.
There are a number of initiatives about encouraging underregistered groups which I will not go into today. Black and minority ethnic groups, those who move house frequently, young people and those with long-standing mental health conditions or disabilities are less likely to register to vote. The Government have a number of initiatives with organisations working with those groups to drive up registration.
The noble Lord, Lord Kennedy, asked whether the panel had been consulted. Did he mean the parliamentary panel of Members of both Houses which liaises with the Electoral Commission?
I will make inquiries and deal with the important questions that the noble Lord has raised about the level of consultation, and of course he is entitled to a reply on that.
I think I have dealt with nearly all the issues that have been raised. If I have not, I will write. We have had direct advice from a range of those in local government—the chief executive of Trafford, the electoral registration officer for Grampian and others—about this initiative. I again thank noble Lords for the time they have spent scrutinising these instruments, which will enable EROs in England, Wales and Scotland to pilot innovative approaches to conducting the annual canvass and also allow EROs in Scotland to make use of email invitations to register and single occupancy provisions. I beg to move.
Before the noble Lord sits down, the point I was trying to get across is that I am very happy that we have pilots. There is no issue about that. However, when we make changes—and stopping the annual canvass, stopping people knocking on doors and stopping letters going out are very big changes—we cannot assume that everybody is e-enabled. Each change has to be carried out very carefully; otherwise we make mistakes, things go wrong and people lose their right to vote. That cannot be the case. The heart of this is that the Government must take a long period and absolute care when they pilot changes. The decision to reduce the time for confirmation was a mistake. If we had taken a longer time, we might not have needed these measures now. That is the point I am trying to make.
I am grateful to the noble Lord. As I said, we are not stopping the annual canvass. The annual canvass remains. I will just end on this. The initiative for this has come not so much from the Government as from the EROs. They take their responsibilities very seriously and want to have the maximum number of people registered. They still retain all the powers they have at the moment, as well as the powers they have in the pilots, to continue to knock on doors and send all the forms. I personally have confidence that the EROs will use the powers they have, and which we are giving them today, not just to maintain the current accuracy of the register: I think we will end up with a better register if we go ahead with these pilots and extend the lessons that we have learned.
West Midlands Combined Authority (Functions and Amendment) Order 2017
Motion to Approve
My Lords, the draft order which we are considering today, if approved and made, will bring to life the devolution deal which the Government agreed with the West Midlands on 17 November 2015.
The Government have already made significant progress in delivering their manifesto commitment to devolve far-reaching powers and budgets to large cities in England which choose to have directly elected mayors. This House has now debated and approved a number of orders establishing combined authority mayors and devolving powers, including Greater Manchester, the West of England, Cambridgeshire and Peterborough and, more recently, the Tees Valley and the Liverpool City Region, for which the noble Lord, Lord Young, stood in my place.
I am very grateful to the House for the attention it has given to these matters. We are now nearing the end of the first stage of this devolution process, with one final order after those today which confers powers on those combined authorities with May elections to be considered—that is, Greater Manchester, which was at the forefront of the devolution process. We also have the draft Combined Authorities (Finance) Order, which we will turn to following this debate.
The order we are considering today will confer important new powers on to the West Midlands mayor and the combined authority as set out in the devolution deal, particularly on transport, housing and regeneration, air quality, smoke-free premises, places and vehicles, anti-social behaviour, and culture. The overall result is to create for the West Midlands arrangements which will materially contribute to the promotion of economic growth across the area, improve productivity, and facilitate investment and the development of the area’s infrastructure. Through this deal, the West Midlands combined authority will receive: first, a devolved transport budget to help provide a more modern, better-connected network, allowing the West Midlands to choose how to spend the money across the area; secondly, new housing and regeneration powers to provide a strategic local approach to tackling these issues in the West Midlands; and thirdly, control over an investment fund of £36.5 million a year for 30 years to boost growth and prosperity in the area.
The implementation of the devolution deal agreed between local leaders and the Government has already seen two orders made, having been approved by this House and the other place, in relation to the West Midlands. First, the West Midlands Combined Authority Order established the combined authority on 17 June 2016, with functions in relation to economic development, regeneration and transport. Secondly, the West Midlands Combined Authority (Election of Mayor) Order created the position of mayor for the West Midlands, with the first election to be held on 4 May for an initial three-year term. Second elections will be held on 7 May 2020, with elections subsequently taking place every four years.
Today’s draft order is to be made under the Local Democracy, Economic Development and Construction Act 2009, as amended by the Cities and Local Government Devolution Act 2016. As required by the 2016 Act, along with this order we have laid a report which provides details about the public authority functions we are devolving to the combined authority. The statutory origin of this order is in the governance review and scheme prepared by the combined authority, together with the seven constituent councils of Birmingham, Coventry, Dudley, Sandwell, Solihull, Walsall and Wolverhampton, in accordance with the requirements of the 2009 Act.
The scheme sets out proposals for powers to be conferred on the combined authority, some to be exercised by the mayor, for funding and constitutional provisions to support the powers and functions conferred, and for the addition of a further five non-constituent members to the combined authority: North Warwickshire, Rugby, Shropshire, Stratford-on-Avon and Warwickshire. As provided for by the 2009 Act, the combined authority and the councils consulted on the proposals in their scheme. This was a public consultation which was entirely undertaken by the authorities concerned. They decided the approach, which was a matter for them.
I know noble Lords are interested in the consultation so will provide some further details. The local consultation undertaken by the combined authority ran for seven weeks from 4 June to 21 August 2016. In that time, 1,328 responses were received. Of these, 777—60%—agreed that the mayoral combined authority will promote more efficient and effective governance in the West Midlands. With regards to some of the specific functions covered in the deal and conferred by this order, 79% agreed with the transport proposals, 71% with the air quality proposals and 69% with the housing proposals. On all the questions asked, more people supported than opposed the proposals.
Following that consultation, as statute requires, the combined authority provided the Secretary of State with a summary of the responses to the consultation in September. Before laying this draft order before Parliament, the Secretary of State considered the statutory requirements in the 2009 Act. He is satisfied that these requirements are met. In short, he considers that conferring the functions on the combined authority would be likely to lead to an improvement in the exercise of the statutory functions across the area of the West Midlands combined authority. He has also had regard to the impact on local government and communities. Further, as required by statute, the seven constituent councils and the combined authority have consented to the making of this order.
The detail of the draft order reflects the commitment in the deal that the mayor should take on responsibility for a devolved and consolidated transport budget and a key route network of local authority roads. This key route network of combined authority roads is identified in Schedule 1 to the draft order. It is clear that a lot of consideration and detail have gone into this network, and I congratulate the local area on the work that it has done in identifying this strategic network. The order provides that the mayor, with the assistance of the combined authority, will exercise the following powers over this network: powers to enter into agreements with highway authorities, Ministers and Highways England in relation to the maintenance of roads; powers to promote road safety and regulate traffic; powers to operate a permit scheme to control the carrying out of works on the combined authority roads; and powers to collect contributions from utility companies for diversionary works needed as a result of highways works carried out on the key route network.
More generally, the mayor will have powers to pay grants—in practice for highways maintenance—to the seven constituent councils of the West Midlands combined authority, with the condition that the mayor has regard to the desirability of ensuring that the councils have sufficient funds to effectively discharge their highways functions. The mayor will also exercise, with the assistance of the combined authority, compulsory purchase powers in relation to housing and regeneration—the same power as the Homes and Communities Agency has elsewhere.
The order also provides that the functional power of competence, already exercisable by the combined authority, is also exercisable by the mayor. The order confers various powers on the combined authority, in addition to its existing transport, economic development and regeneration powers. These are: powers to issue penalty charges in respect of bus lane contraventions across the area of the combined authority; powers and functions of the Homes and Communities Agency relating to improving the supply and quality of housing, securing the regeneration or development of land or infrastructure, and supporting the creation, regeneration or development of communities in the area, to be exercised concurrently with the Homes and Communities Agency; power to designate mayoral development areas, leading to the creation of mayoral development corporations, such as we are seeing in the Tees Valley; powers relating to air quality, which can support the creation of emission control zones; powers to be an enforcement authority in relation to the prohibition of smoking in premises, places and vehicles; powers to issue civil injunctions for anti-social behaviour on the bus and tram network; and powers to take a role in cultural activities, in both the provision and support of cultural events and entertainments in its area.
Finally, the order also provides for the necessary constitutional and funding arrangements to support the mayor and the combined authority, including the establishment of an independent remuneration panel to recommend the allowances of the mayor and deputy mayor. It also provides for the addition of five new non-constituent councils—North Warwickshire, Rugby, Shropshire, Stratford-on-Avon and Warwickshire—to the combined authority, to join the existing five non-constituent councils to the combined authority: Cannock Chase, Nuneaton and Bedworth, Redditch, Tamworth, and Telford and Wrekin.
I should be clear at this stage that the inclusion of non-constituent council members to the West Midlands combined authority is the model proposed by the local area, which considers that this is the most appropriate governance structure to deliver growth across the area of the West Midlands combined authority and indeed the wider region. Furthermore, the addition of these new non-constituent council members does not alter the area of the combined authority, which remains, as it always has, that of the area of the seven constituent councils of the West Midlands. These non-constituent members will be able to sit at the table of the combined authority, but will be able to vote in decisions only if the constituent members of the combined authority choose to involve them in this way. This is a progressive way to ensure appropriate governance and decision-making in the area. However, the Government are clear that devolution of powers and funding should be achieved only through increasing the number of full constituent members. Residents in areas of non-constituent councils do not vote for the mayor.
The order will come into force on 8 May, when the West Midlands mayor takes office, with the exception of the provision relating to the establishment of an independent remuneration panel, which will come into force on the day after the order is made, to enable the combined authority to make any necessary arrangements in advance of the mayor taking office.
In conclusion, this order devolves brand new, far-ranging powers to the West Midlands, putting decision-making in the hands of local people and helping the area to fulfil its long-term ambitions. The draft order we are considering today is a significant milestone that will contribute to greater prosperity in the West Midlands and pave the way for a more balanced economy and economic success right across the country. I commend the draft order to the House.
My Lords, I thank the Minister for introducing this order. I find it refreshing that councils want to join the combined authority, as opposed to wanting to opt out of it. It is good to see the broadly positive outcome of the consultation, with some quite strong figures. It will be helpful to have the extent of the responsibilities and powers that are defined in the order, because they are not up to the same as other combined authority orders, so it makes it much easier to pile up the differences between combined authorities. It is also good to see in the order the checks and balances in the powers of the constituent councils, the combined authority and the mayor. They are quite complex, particularly in view of the number of constituent councils, but I think they are quite workable.
I want to ask the Minister a very specific question about the powers of the mayor and the combined authority, given that they have compulsory purchase powers and, of course, that the combined authority takes over the powers of the Homes and Communities Agency. I just want to be absolutely certain on the record that there is no involvement by the mayor or the combined authority in the granting of planning permission in any part of the West Midlands Combined Authority.
The Minister referred to the independent remuneration panel. This panel relates to the mayor and the deputy mayor of the West Midlands. I think that we are creating too many independent remuneration panels. The time has come for there to be a single, national system for England in the remuneration of combined authority members, elected mayors and councillors. It should not be difficult to construct a system; most other organisations have national schemes. I no longer understand why everything has been localised in the way that it has or, indeed, why there has to be a separate independent remuneration panel for the mayor and deputy mayor of a combined authority.
I want to make two final, very brief points. In the paragraph about the appointment of a political adviser, which I understand applies to all combined authorities, can the Minister clarify the meaning of “within proportionate resource”? A political adviser can be paid “within proportionate resource”, but I do not understand what it is proportionate to. It could be proportionate to the remuneration of the mayor or of the deputy mayor; it could be proportionate to the remuneration of those serving on the combined authority; or it could relate to the budget of the office or of the mayor’s office. We need to be clear about what that phrase means because it is the kind of thing that might cause difficulty later.
My final point relates to political balance. There are 28 members on this combined authority, which I find a welcome number because it means that there is support for the concept of the combined authority. First, I want to be clearer about the political balance of those 28 members to ensure that all interests are involved. In other places—for example, in individual councils—questions of political balance on the appointment of committees are required to be considered. I am slightly concerned that one may find a predominance of only one political party, or maybe two, on a combined authority. How will political balance be ensured, given the number of members on the West Midlands Combined Authority? Secondly, with regard to the scrutiny function, which is subject to legislation that has already been passed by your Lordships’ House, I just want to hear from the Minister that political balance will be ensured on the terms that have already been agreed and that there will be no difference at all in the West Midlands, given the importance that scrutiny is going to have in what is a comparatively large combined authority.
My Lords, I have not been involved in these matters before, but I am a member of the Secondary Legislation Scrutiny Committee and, during our earlier reviews, I have become aware of the questions about the extent of public consultation and the extent to which that consultation has favoured the Government’s proposals. My noble friend referred to that in his opening remarks; I think he said that 1,328 people had responded. That is a decent number, but we are talking about several million people in the organisation that we are talking about, so it is not a significant number statistically. Nevertheless, I welcome that more than half that number were in favour.
I happen to have had a regret Motion on a completely different matter that preceded the discussion we had the other day, about the combined authorities of East Anglia and the north-east, and I noted some of the concerns expressed by other noble Lords at that time. When the scrutiny committee had the West Midlands authority brought before it, I decided to look at it with slightly more care. I entirely appreciate and support the original concept of the urban West Midlands. I know that there are tensions between the Black Country and Birmingham, and so on, but nevertheless there is some cohesion. But when I saw what had been tacked on, I got out my mobile phone and googled the distance from Nuneaton, which is on the eastern end of the area, to Montgomery, which is just over the border in Wales and just outside the western end, and the distance is 96 miles. I did the same from north to south, and the distance is 106 miles. This is a very big area indeed, and I wonder what an authority which runs from the Potteries to the Cotswolds and from the M1 to the Welsh border is going to be able to do to hold this thing together and give it a sense of cohesion.
I understand about the urban West Midlands and the mayor elections taking place there in May. But with this very limited consultation in the first place, which brings in an entirely different type of society—rural, quite lowly populated—I wonder whether we are creating a structure that is really going to deliver what the people in those outlying, tacked-on areas are going to appreciate as a worthwhile and efficient use of local authority and indeed central government funds.
My Lords, on the question of remuneration for the mayor, I ask the Minister whether the Government have a particular figure in mind. He will be aware that the election of a mayor in the West Midlands has caused a little controversy in the area about the size of the salary. Indeed, I understand that a recent meeting of leaders of various local authorities recommended a figure of around £40,000, which is, understandably, a bit less than one or two of them earn themselves. Can we have an idea from the Minister, before he sets up the remuneration committee, what a sensible figure would be? Does he agree that that figure ought at least to be in excess—perhaps considerably in excess—of the salary of existing local authority leaders, given the wide area, as outlined in the previous contribution, for which the mayor would be responsible? Can the Minister give us some assurance that whoever is elected will be seen to be independent of government, so that if it is necessary for the mayor to take a decision contradicting the views of government Ministers, he would not, regardless of party, be subject to the sort of treatment that has just been meted out to the noble Lord, Lord Heseltine, who, because of his temerity in disagreeing with the Government’s philosophy, was hurriedly dropped from a particular government position despite his distinguished record? The least the Minister can do is to reassure the House that whoever is elected will be seen to be independent of government.
My Lords, the noble Lords, Lord Shipley and Lord Hodgson, both referred to the consultation process. I do not really want to make an observation on that, but consultations are wondrous things, are they not? They are often prayed in evidence. The figure that the Minister gave was, I think, that 777 people or thereabouts had agreed with the proposals. What that represents as a proportion of the West Midlands would barely be able to be determined on a quite sophisticated computer—it is a very, very small proportion of the population of the West Midlands. Having said that, I find myself impressed at the idea that as many as 777 people agreed with the proposal—when I for one find even these orders extraordinarily complex—and had weighed up these issues and thought that, on balance, it was a good system to introduce.
On the question of intelligibility—there are a lot of things that I am not keen on, including the point implied by my noble friend Lord Snape—let us get it down to punter level. I lived just outside the area, but for someone living in the West Midlands area who is faced with a problem involving housing, transport or jobs, is there a simple guide being proposed by the Government that tells them whether to go to their directly elected mayor—even though the people of Birmingham voted against a directly elected mayor, as we know well enough—or to one of the members of the combined authority or to one of the constituent boroughs? Any democratic system, in my book at any rate, needs to be as intelligible as possible, and I am not at all sure about this new structure. It took the Minister, who understands these things, 10 minutes of speed-reading to refer to just these orders. The punters need to know what they are buying.
That brings me to my last point: has anyone worked out the cost so far of reaching the stage that we are at now? I dread to think how much it cost to produce these documents before us—I imagine quite a bit of ministerial and Civil Service time, not to mention the time spent by the local authorities themselves, who have had to submit evidence and attend meetings. And of course there is the cost of these elections, when they take place in May. Some indication, along the lines of the request of my noble friend Lord Snape, would be helpful for us to know precisely what sort of figures we are dealing with.
I will briefly follow up on a couple of the points that have been made. I declare an interest in the sense that I live in the total area, as I live in Ludlow, in Shropshire. I will be amazed when the people of Shropshire wake up on 8 May and discover that they will be sending the combined authority what will be a few tens of thousands of pounds—they are not involved in the election of the mayor, because the mayor is only for the metropolitan county area, which is the old seven councils. I wish it well—do not get me wrong—but the noble Lord, Lord Hodgson, mentioned the variety of the area, and I think that we do need to exploit the assets of the area.
For example, there are 326 local authority areas in England, and their density of population varies from 9,000 people per square kilometre to well under 100 people per square kilometre—as it is in Shropshire. Of the 326, Shropshire lies at about 312; in other words, it is an incredibly sparse area. What that tells me is that it has land for development. We do not need to rip up the countryside to use the land for development, and therefore there is potential in this area—the motorway links are not brilliant, by the way.
I do not know what the local authorities will do about this. The bosses who run Shropshire are not very keen on factories coming into the area. I once raised the issue at a public meeting, as I think jobs and manufacturing are important. In the area of the old seven councils—where I lived and worked and I also represented the area, so I know what it is like—it is not easy to put a factory on a greenfield site. You cannot do that in the Black Country; you can use brownfield sites, but you are absolutely limited for modern, technological industrial undertakings and you cannot do it in the old way. I just want to put that on the record.
On consultation, I have not seen anything in the local papers about the effect of this. I remember that the issue of consultation was raised about three orders ago. I hope that we are not playing with fire, because the body is being set up and it will perform its functions from 8 May.
My final point is that, in the West Midlands, we miss figures of substance, if I can put it that way.
I think that the noble Lord will find that, because Shropshire volunteered, it was not consulted at all. The consultation referred to by the noble Lord, Lord Grocott, was about the West Midlands area. I do not think that there was any consultation in Shropshire at all; it was a volunteering effort by the Shropshire leadership. So I do not think that the people of Ludlow, where the noble Lord and I both live, would ever have had a chance to say anything.
That is right; it has not been commented on. It has not been an issue that has figured at all, and that is why I think it will be a bit of a surprise on 8 May.
My final point is that I hope that the new structure will generate some figures of substance. We miss in the West Midlands people of the stature of the late Sir Adrian Cadbury and the late Denis Howell, who were Midlanders who got things done. That is the one thing that has been missing in the West Midlands compared to the north-east and north-west, where figures of substance have emerged in a leadership role, which has transformed the communities. So in some ways I hope that—although I have not seen any on the horizon at the moment—once this new structure is up and running, such people will come forward.
My Lords, I welcome the order before us today and I welcome the combined authority. It is good news that the constituent councils have all agreed this, and of course there are also non-constituent members taking part in this new arrangement. I lived in Coventry for many years, so I can see the logic of, for example, Nuneaton and Bedworth being part of the combined authority, as that is very near there. However, I do not know the area of Shropshire as well as my noble friend Lord Rooker does.
The noble Lord, Lord Hodgson of Astley Abbots, has raised an important point, though, about the wider area. I will not get into this today, but I think that there is an issue about where are going with local government in England. No party has dealt with this, outside of London, and it is an issue that at some point someone needs to deal with. I am not sure that these patchwork arrangements are the solution.
It is good that the consultation was positive, although I take on board the point that the number of responses was still quite low. However, for some of the other orders that we have looked at, the consultation response was very negative. At least the consultation response on this order was supportive of it.
When the Minister responds, it would be useful if he could comment on the powers that the mayor will have under the order. Will the mayor have the power to dispose of public land at less than market value for use as social housing? In terms of the mayoral development corporation, can he confirm whether it will have that power as well? As he will know, we tried to get this issue resolved in the Neighbourhood Planning Bill in respect of London, but for all sorts of reasons, which I am not yet quite clear on, it never happened, despite it being suggested and everyone being in support of it.
Can the Minister also say something about powers? I am conscious that this combined authority has more powers than some authorities but fewer than others, such as Greater Manchester, which has powers over the police and the health service. How would this authority go about getting further powers? Were there powers that were asked for but were refused? I do not know, and it would be interesting to find out.
The noble Lord, Lord Shipley, made a very important point about the remuneration panel. The idea of an England-wide panel is sensible, rather than having lots of different remuneration panels. That seems a good idea.
Having said that, I am content with the order. I shall finish my remarks by saying that I wish the authority well and, whoever is elected as mayor, I wish them well in this important role.
My Lords, I thank noble Lords who have participated in the debate. I shall try to pick up the points made. I thank noble Lords for the generally positive way in which they want to take things forward, although there are some understandable concerns. I shall try to address the points in the order in which they were made.
Turning first to the noble Lord, Lord Shipley, I thank him very much for his comments on progress, on checks and balances and on the consultation response. As the noble Lord, Lord Kennedy, has just said, the response was much more positive than has been the generality and was perhaps the most positive of all such consultations. Positive responses outweighed negative ones on every single question asked in the consultation, in most cases by a significant margin.
In that regard, I happily concur with the noble Lord, Lord Grocott, about the intelligence of people in the West Midlands. In relation to the wider and very fair point that he made about an intelligible guide on how this will operate, in the department we are going to publish a plain English guide. I welcome that, because sometimes the language about how mayors and combined authorities will work is obscure and Byzantine. I hope that that guide will be helpful.
The noble Lord, Lord Shipley, rightly said that compulsory purchase powers are exercisable by the mayor. I can confirm, as he has raised the issue, that planning permission stays, as before, with the constituent councils. There is no change on that point.
I take the noble Lord’s point about the independent remuneration panels existing in isolation. Clearly, each authority is bespoke and they are different one from another, so one would expect the remuneration packages to be somewhat different. I shall take away the idea of having some way of cross-referencing the independent remuneration panels, so that we can both share experience and perhaps seek to keep costs down. That seems a sensible approach.
On the point that the noble Lord raised about the political adviser, within the mayoral office there is the capacity for a political adviser. That is paid for out of the mayoral budget, and we anticipate that the cost will be proportionate to that budget.
On my noble friend Lord Hodgson’s point about the scrutiny committee—it may have been the noble Lord, Lord Shipley, who made this point—there must be political balance on the scrutiny committee. With regard to the combined authority, there is no statutory requirement, just as in any local authority election. The balance is the balance as represented in the elections and the process that follows from that. However, there is a legal requirement that carries across to scrutiny committees of combined authorities in the same way as for other authorities.
On my noble friend Lord Hodgson’s point about the extent of the authority, I think that it is important to distinguish the combined authority, with its seven constituent members, from the larger area that he cited as stretching from Nuneaton to just outside Montgomery and from north to south. That larger area includes non-constituent authorities, which do not have rights to vote and do not participate in the mayoral election. They are part of the broader engagement because of the strategic interest that often arises in relation to transport, housing and so on. They are not tacked on in any casual sense; they are important for strategic concerns.
The noble Lord, Lord Snape, echoed the point about remuneration, which I have already addressed. He talked about how the Government would work with mayors. I share his view that it is important that we work well with mayors. The experience of the Government working with the Mayor of London has been positive—we have engaged with Sadiq Khan on a regular basis on issues such as housing and last week’s atrocity—and it has been a positive exercise.
I pay tribute to the work that my noble friend Lord Heseltine has done in my department. It was considerable. Of course, he was not elected in the same way as a mayor, as the noble Lord knew when he was making the point. However, I place on record the debt that we all owe to the work of my noble friend Lord Heseltine.
The noble Lord, Lord Grocott, talked about the fact that not that many people responded to the consultation. That is true. As we know, that has been the experience across the piece with consultations. One always wishes that more people did respond. However, 1,328 is at the better end in this area and, as I think that we have all agreed, 777 in favour—about 60%—was considerable. There were quite a lot of “Don’t knows” so those in favour considerably outweighed those that were against.
On the costs of elections—the costs, as it were, of democracy—I shall, as I often do, write to all who have participated in the debate. Of course these things come with a cost, and I shall try to answer. I do not have all the figures to hand. There are costs, but, as I have indicated in my response on the independent remuneration panel, we are trying to keep those costs sensibly down without prejudicing the importance of the process.
The noble Lord, Lord Rooker, also made some valuable points about the differences in the area that includes the non-constituent councils, such as Shropshire. Shropshire is very different from the densely urban parts of the area, such as Birmingham, Coventry and so on. I observe that the seven councils forming the constituent members are pretty heavily urban.
I share with the noble Lord the hope that a national figure of substance will arise from the elections, and I hope that Andy Street will be that person. We may not agree on that particular issue, but I look forward to the forthcoming elections.
How constituent councils decide who serves is a matter for constituent councils. It is usually the leader of the council, but there is no requirement that it should be. I have covered the point about the political balance on scrutiny committees. That balance is still there.
The noble Lord, Lord Snape, asked whether the Government have a view on mayoral remuneration. It would be inappropriate for us to have a view when we are setting up an independent panel on remuneration, but I share his view that this is a substantial role and I am sure that panel members will bear that in mind.
Finally, I thank the noble Lord, Lord Kennedy, for his general welcome—he always provides a general welcome—of what we are seeking to do in this area. I thank him for that and for acknowledging that the consultation was more positive than in some other cases. He asked whether other powers had been discussed with Birmingham, as had been done for Manchester. He is right that Manchester has had a bespoke deal that gives more powers; the powers are not uniform. As he knows, every combined authority is slightly different. I am unaware of any discussion on any other issues, but I shall cover that in a letter because I am not absolutely certain.
The noble Lord also asked about the power of the mayor to dispose of land. I think that that is in conjunction with the combined authority and subject to the normal rules of obtaining best value and acting intra vires. I shall also cover that in a letter to ensure that I am right on that point. I commend the order to the House.
Brexit: Legislating for the United Kingdom’s Withdrawal from the European Union
My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Secretary of State for Exiting the European Union. The Statement is as follows:
“With permission, Mr Speaker, I would like to make a Statement about today’s publication of a White Paper on the great repeal Bill. Yesterday we took the historic step of notifying the European Council of the Government’s decision to invoke Article 50. The United Kingdom is leaving the EU. That notification marks the beginning of our two-year negotiation period with the EU and it reflects the result of last year’s instruction from the people of the United Kingdom. As the Prime Minister said yesterday, it is our fierce determination to get the right deal for every single person. Now is the time to come together to ensure that the UK as a whole is prepared for the challenges and opportunities presented by our exit from the EU.
We have been clear that we want a smooth and orderly exit, and the great repeal Bill is integral to that approach. It will provide clarity and certainty for businesses, workers and consumers across the UK on the day we leave the EU. It will mean that as we exit the EU and seek a new, deep and special partnership with the EU, we will be doing so from a position where we have the same standards and rules. But it will also ensure we deliver on our promise to end the supremacy of EU law in the UK as we exit. Our laws will be made in London, Edinburgh, Cardiff and Belfast, and interpreted not by judges in Luxembourg but by judges across the United Kingdom.
Some have been concerned that Parliament will not play enough of a role in shaping the future of the country once we have left the EU. Today’s White Paper shows just how wrong that is. This publication makes clear that there will be a series of Bills to debate and vote on, both before and after we leave, as well as many statutory instruments to consider.
Let me turn to the content of today’s White Paper. The paper we have published today sets out the three principal elements of this great repeal Bill. First, it will repeal the European Communities Act and return power to the United Kingdom. Secondly, the Bill will convert EU law into UK law wherever practical and appropriate, allowing businesses to continue operating knowing that the rules have not changed overnight, and providing fairness to individuals, whose rights and obligations will not be subject to sudden change. Thirdly, the Bill will create the necessary powers to correct the laws that do not operate appropriately once we have left the EU, so that our legal system continues to function correctly outside the EU.
I will address each of these elements in turn before coming to the important issue of the interaction of the Bill with the devolution settlements. Let me begin with the European Communities Act. Repealing the ECA on the day we leave the EU enables the return to this Parliament of the sovereignty we to some degree ceded in 1972, and ends the supremacy of EU law in this country. It is entirely necessary to deliver on the result of the referendum. But repealing the ECA alone is not enough. A simple repeal of the ECA would leave holes in our statute book. The EU regulations that apply directly in the UK would no longer have any effect and many of the domestic regulations we have made to implement our EU obligations would fall away. Therefore, to provide maximum possible legal certainty, the great repeal Bill will convert EU law into domestic law on the day we leave the EU. This means, for example, that the workers’ rights, environmental protection and consumer rights that are enjoyed under EU law in the UK will continue to be available in UK law after we have left the EU. Once EU law has been converted into domestic law, Parliament will be able to pass legislation to amend, repeal or improve any piece of EU law it chooses, as will the devolved legislatures, where they have the power to do so.
However, further steps will be needed to provide a smooth and orderly exit. This is because a large number of laws, both existing domestic laws and those we convert into UK law, will not work properly if we leave the EU without taking further action. Some laws, for example, grant functions to an EU institution with which the UK might no longer have a relationship. To overcome this, the great repeal Bill will provide a power to correct the statute book where necessary to resolve the problems which will occur as a consequence of leaving the EU. This will be done using secondary legislation, the flexibility of which will help make sure we have put in place the necessary corrections before the day we leave the EU. I can confirm that this power will be time-limited, and Parliament will need to be satisfied that the procedures in the Bill for making and approving the secondary legislation are appropriate. Given the scale of the changes that will be necessary and the finite amount of time available to make them, there is a balance to be struck between the importance of scrutiny and correcting the statute book in time. As the Constitution Committee in the other place recently put it:
“The challenge that Parliament will face is in balancing the need for speed, and thus for Governmental discretion, with the need for proper parliamentary control of the content of the UK’s statute book”.
Parliament, of course, can, and does, regularly debate and vote on secondary legislation: we are not considering some form of government “executive orders”, but using a legislative process of long standing. I hope that today’s White Paper and this Statement can be the start of a discussion between Parliament and government about how best to achieve this balance. Similar corrections will be needed to the statute books of the three devolved Administrations, and so we propose that the Bill will also give Ministers in the devolved Administrations a power to amend devolved legislation to correct their law in line with the way that UK Ministers will be able to correct UK law.
Let me turn to the CJEU and its case law. I can confirm that the great repeal Bill will provide no future role for the CJEU in the interpretation of our laws, and the Bill will not oblige our courts to consider cases decided by the CJEU after we have left. However, for as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means. The Government believe that this is best achieved by providing for continuity in how that law is interpreted before and after exit day. To maximise certainty, therefore, the Bill will provide that any question as to the meaning of EU law that has been converted into UK law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU. Any other starting point would be to change the law and create unnecessary uncertainty.
This approach maximises legal certainty at the point of departure. But our intention is not to fossilise the past decisions of the CJEU for ever. As such, we propose that the Bill will provide that historic CJEU case law be given the same status in our courts as decisions of our own Supreme Court. The Supreme Court does not frequently depart from its own decisions, but it does so from time to time, and we would expect the Supreme Court to take a similar, sparing approach to departing from CJEU case law. But we believe it is right that it should have the power to do so. Of course, Parliament will be free to change the law, and therefore overturn case law, where it decides it is right to do so.
Today’s White Paper also sets out the great repeal Bill’s approach to the Charter of Fundamental Rights. Let me explain our approach here. The Charter of Fundamental Rights applies to member states only when they act within the scope of EU law. This means that its relevance is removed by our withdrawal from the EU. The Government have been clear that in leaving the EU, the UK’s leading role in protecting and advancing human rights will not change. And the fact that the charter will fall away will not mean the protection of rights in the UK will suffer as a result. The Charter of Fundamental Rights was not designed to create new rights, but rather to catalogue rights already recognised as general principles in EU law. Where cases have been decided by reference to those rights, that case law will continue to be used to interpret the underlying rights which will be preserved.
I would now like to turn to devolution. The United Kingdom’s domestic constitutional arrangements have evolved since the UK joined the European Economic Community in 1973. The current devolution settlements were agreed after the UK joined, and reflect that context. In areas where the devolved Administrations and legislatures have competence, such as agriculture, the environment and some areas of transport, this competence is exercised within the constraints set by EU law. The existence of common EU frameworks has also provided a common UK framework in many areas, safeguarding the functioning of the UK internal market.
As powers return from the EU, we have an opportunity to determine the level best placed to take decisions on these issues, ensuring that power sits closer to the people of the United Kingdom than ever before. It is the expectation of the Government that the outcome of this process will be a significant increase in the decision-making power of each devolved Administration, but we must also ensure that as we leave the EU no new barriers to living and doing business within our own union are created. In some areas, this will require common UK frameworks. Decisions will be required about where a common framework is needed and, if it is, how it might be established. The devolved Administrations also acknowledge the importance of common UK frameworks. We will work closely with the devolved Administrations to deliver an approach that works for the whole of the United Kingdom and reflects the needs and individual circumstances of Scotland, Wales and Northern Ireland.
Let me conclude by stressing the importance of the great repeal Bill. It will help to ensure certainty and stability across the board. It is vital to ensuring a smooth and orderly exit. It will stand us in good stead for negotiations over our future relationship with the EU. And it will deliver greater control over our laws to this Parliament and, wherever appropriate, the devolved Administrations. These steps are crucial to implementing the result of the referendum in the national interest. I hope all sides will recognise that, and work with us to achieve these aims. I commend the Statement to the House”.
I thank the Minister for repeating the Statement, which introduces one of three broad areas of scrutiny facing this House over the coming 18 months. The other elements are the array of primary legislation—anywhere between seven and 15 Bills covering agriculture, customs, immigration and all their associated SIs. Alongside this will be our scrutiny of the Government’s negotiation with the EU 27, culminating in a vote in this House on the final deal.
Today’s foreshadowed Bill is, in one way, the easiest of those three tasks, as it takes existing EU law and incorporates it into domestic law. However, we have heard the Secretary of State for International Trade arguing:
“To restore Britain’s competitiveness we must begin by deregulating the labour market”.
Meanwhile, the Foreign Secretary wants to use the “opportunity” to axe needless regulations that have “accreted” since Britain joined the EU. How do those comments chime with the Prime Minister’s introduction to the White Paper—and, indeed, the Government’s long-standing promise—which states:
“The same rules and laws will apply on the day after exit as on the day before”?
Will the Minister confirm that it is the Prime Minister who is the boss and that, despite the words of others, there is no intention to follow their madcap ideas within the repeal Bill?
Despite its aim of simply converting existing rules into UK law, the Bill will be, in the words of our Delegated Powers and Regulatory Reform Committee,
“a wholly exceptional piece of primary legislation”,
with implications for,
“the fundamental issue of the balance between the Executive and Parliament”.
We are pleased that the Secretary of State confirmed that delegated powers introduced by the Bill will be subject to time limits, but a number of concerns remain. At paragraph 3.21, the Government believe that current statutory instrument procedures in this House are sufficient for the task. We have our doubts—so will the Minister give serious consideration to our recommendations? They are: that an explanatory memo be published alongside each statutory instrument; that there will be early consultation with outside stakeholders; that there will be provision of a comprehensive delegated powers memorandum for Parliament when the Bill appears; that there will be provision of draft regulations, so that scrutiny can commence before the Bill is enacted, in view of the sheer scale and complexity of the secondary legislation; and, given that delegated legislation is unamendable, that there will be consideration of a strengthened scrutiny procedure to help ensure that Parliament retains some control over significant statutory instruments, including some “triage” of the various proposals. Everyone in this Chamber knows that our committees do excellent work on this, but it is clear that some form of extra capacity will be needed if we are to scrutinise the vast array of statutory instruments that are to come.
Many EU regulations are monitored or enforced by the Commission, the Court of Justice or another EU body. The question, therefore, is how the Government will ensure that the new regulations, once domesticated into UK law, will still be monitored and enforced. There is little point in entrenching EU rights and protections if the Government do not also make sure that they are enforceable. As converting EU acquis into domestic law will have significant implications for the devolution settlements, which were all premised on our continued membership of the EU, can the Minister tell the House about their plans for dealing with repatriation in areas of devolved competence, including London? In particular, can he provide assurance that consultation will improve?
Just yesterday, the First Minister in Wales confirmed that he had not seen the Article 50 letter in advance and had not been invited to contribute to its drafting. He described that as,
“unacceptable … the culmination of a deeply frustrating process in which the devolved Administrations have been persistently treated with a lack of respect”.
Today, again, he said on the White Paper:
“We are disappointed we were not given opportunity to contribute to its production, despite assurances that we would be”.
Is this the level of co-operation that the Government think is satisfactory?
Although lacking in certain respects, today’s White Paper provides some clarity. Labour has insisted that our withdrawal from the EU must not lead to a reduction in workplace rights or environmental and consumer protections. These must be retained with no qualifications, limitations or sunset clauses. The White Paper, although I have not had time to read every detail, seems to accept this entirely, and even sets out some welcome examples. However, given the comments by the Foreign and International Trade Secretaries, and the former chairman of the Conservative Party, there are dangers ahead.
If we are to do our job properly, we will need the resources and structures to deal with the avalanche of secondary legislation and a way of ensuring that delegated powers are limited, used only when it is vital and not misused. The Minister knows that the House stands ready to do what is needed, but we will need rather more detail and assurance before we can be sure that the Bill is fit for purpose. The Government stress the importance of sovereignty. For us, this means parliamentary sovereignty, not an unacceptable power grab by the Government. We will be watching you.
I, too, thank the Minister for repeating the Statement. If the price of pointing out when the Government’s Brexit emperor lacks clothes is to be labelled “a well-known pessimist”, it is a price I willingly pay. The first and most obvious flash of nakedness is in the title of the Bill. It is not great and it repeals nothing. It is, in fact, the “Sneaky Copy/Paste Bill”. After all, we learned yesterday that Brexit does not in fact mean Brexit; it means a deep and special relationship—so of course we will still be complying with lots of EU law. This is, of course, welcome in avoiding the destructive, off-the-cliff, no-deal Brexit that the Prime Minister threatened just weeks ago—and, I noted, repeated in the White Paper, although I thought it had been abandoned.
The deeper our relationship with the EU, the more the flimsiness of the emperor’s red-lined garments becomes apparent. It seems that the Government cynically hope that, as long as they pull out of EU institutions, the fact that the UK will continue to comply with most EU law can be sold as “freedom” and “regained control”. But, instead of taking back control meaning an increase in parliamentary sovereignty, as leave voters were deceived into thinking, Brexit in fact represents a shameless power grab by the Executive on a scale to make Henry VIII blush—and there are considerable doubts on the ability of the Civil Service to cope.
The Statement says that the Bill will,
“create the necessary powers to correct the laws that do not operate appropriately once we have left the EU”.
Paragraph 1.21 of the White Paper promises that there will be no “major changes to policy”, just enough to ensure that,
“the law continues to function properly”.
We will have to be watchful, given the wiggle room that that appears to allow. This power to correct will be exercised by secondary legislation allegedly to provide flexibility and speed. So, although government Executive orders are apparently ruled out, true reassurance is in short supply.
I want to associate myself with the remarks of the noble Baroness, Lady Hayter, about the resources in this House. The Liberal Democrats will be insisting on full parliamentary scrutiny, transparency and due process, including the involvement of the devolved Administrations.
The Statement and the White Paper pledge to end the supremacy of EU law in the United Kingdom, such that the laws we obey will not be interpreted by judges in Luxembourg. However, as I have already had occasion to remind the House today—it bears repetition—the Article 50 letter admits that UK companies trading in the EU will have to abide by EU rules while the UK takes no part in the institutions that shape those laws. In other words, we will become a rule taker and not a rule maker.
Therefore, the claim of no future role for the CJEU in the interpretation of our laws is simply untrue. Unless we want to forfeit whatever single market access is achieved, the CJEU will continue to play a large part in our lives. That is true also of treaty rights. Indeed, a few lines down from the ringing assertion that we will be ending the role of EU law, we learn that UK courts will determine the converted law by reference to the CJEU’s case law.
The abolition of the application of the Charter of Fundamental Rights is shown also to be more apparent than real, because the Luxembourg court has taken account of it in many of its judgments. Again, this is admitted a few paragraphs later. Therefore, the assertion in paragraph 2.23 of the White Paper that the charter’s relevance is,
“removed by our withdrawal from the EU”,
is also simply incorrect. Can the Minister explain how our courts will keep up not just with historic but with new EU law and CJEU case law? There are obscure references to common frameworks, but this must surely mean EU-compliant ones.
Lastly, how will the Government reconcile their pledge not to repeal protective legislation with the pressure from right-wing Conservatives, backed recently by the Daily Telegraph, to promise a bonfire of EU red tape in their 2020 manifesto to put Britain on a radically different course? Is that what “correction” actually means? If so, when will the Government go back and tell the British people that they voted to diminish their rights, including rights over flight compensation, food labelling or roaming charges?
The Liberal Democrats will not support anything that weakens human rights or environmental, workplace and consumer protection, or which threatens freedoms to study and work in the EU, research funding or security co-operation. This reinforces the need, which my party demands, for the British people to have the final say on the Brexit deal and for that say to be before the repeal Bill is enacted.
I thank the noble Baronesses, Lady Hayter and Lady Ludford, for their contributions. I particularly thank the noble Baroness, Lady Hayter, for her overarching view that we have provided at least some clarity on the approach we are taking. I think we are providing a considerable amount of clarity.
In her first point, the noble Baroness, Lady Hayter, asked: is the Prime Minister the boss? To clarify, yes, the Prime Minister is the boss—I had better make that very clear.
On a more serious note, as for the points made by the noble Baronesses about changes that might be made in years hence to EU-derived law once it is in UK law, that is some time off for the very simple reason that we have to get this process through and done in the time that we have. Any changes to EU-derived-law, if they were to be made—I should say more correctly “proposed”—would obviously need to be passed by this Parliament, but that is not for now. As this paper makes very clear, the task before us is to provide for a smooth and orderly exit on day one.
I want to pick up on a point made by the noble Baroness, Lady Ludford. I totally understand the concerns about people’s rights, but we are making it absolutely clear that we do not intend to undermine or erode people’s rights as they are derived from the EU. Furthermore, the noble Baroness suggested that this is a power grab. This is not a power grab. We make very clear in the paper the balance that we are striving to achieve between the need to get appropriate scrutiny from Parliament while, at the same time, having a fully functioning statute book on the day that we leave the EU.
From paragraph 3.16 onwards, we set out a number of constraints that might be taken. As I said in the Statement, we are committed to a time limit. The noble Baroness, Lady Hayter, made some very interesting suggestions about other constraints that are not in the White Paper as such. I draw the House’s attention to paragraph 3.17 on the scope of the power as it is currently considered and the potential that,
“we will consider the constraints placed on the delegated power in section 2 of the ECA to assess whether similar constraints may be suitable for the new power, for example preventing the power from being used to make retrospective provision or impose taxation”.
The noble Baroness made a number of other suggestions. She echoed the points made in the excellent report by this House’s Constitution Committee—and many thanks to those Members who contributed to it—on Explanatory Memorandums, which is a very interesting idea. She referred to consultation on drafts, which again is going to be very important as we move to implementing SIs that touch on sectors of the economy, a comprehensive delegated powers memorandum, which is worth mulling over, draft regulations, strengthened scrutiny procedure and finally triage. These are all thoughts that my door is open to have discussions on with any noble Lord who wishes to do so. I stress the point that is made in paragraph 3.23 of the White Paper:
“This White Paper is the beginning of a discussion between Government and Parliament as to the most pragmatic and effective approach to take in this area”.
The noble Baroness makes a very good point about the monitoring of EU regulations once they are converted into EU law and why those EU regulations are today enforced by EU regulators. I am glad she has raised this point. We are having extensive discussions with UK regulators on how this will work and furthermore, as she alluded to in her opening remarks, the need for consultation and discussion about that process and how we bring them over.
The noble Baroness, Lady Ludford, moved on to the interpretation of case law. I simply say gently to the noble Baroness that we need to have the certainty of the interpretation of case law which underpins a number of significant legal and policy cases—I am thinking in particular of our VAT policy. A large number of CJEU case law precedents shape that policy. We need to have that certainty on day one, hence the approach that we are taking.
As regards the noble Baroness’s point on consultation with the devolved Assemblies, yes, we will need to consult. We are giving Ministers there a power to amend their legislation to ensure that it, too, is going to be fit for purpose on day one. We are having regular meetings and we will continue to do so.
I am very keen to continue to consult with all Members of this House about the measures contained in the White Paper as it is absolutely critical we get this right.
My Lords, I realise that the bulk of this is mainly a conversion exercise, which is very sensible and I greatly welcome that, but when it comes to the powers to correct statutes and make and approve secondary legislation, as the Minister has described, can we assume that there will be some degree of filtration and even removal? Many of these vast numbers of regulations are not only unwanted—that may be a matter for opinion and debate in Parliament—but obsolete and come down to us from a pre-digital age and an era of centralisation which is long past. It would be a real waste of time, effort and space on the statute book merely to place them there when they are redundant.
My noble friend is making a good point that the noble Baroness, Lady Hayter, made about the potential for triage and flagging up to Parliament whether an SI is of a very technical nature or of a more substantial policy nature and therefore the level of scrutiny that is required. All I will say at this stage is that I am very keen that we get the balance right between bringing noble Lords and the other place with us as we make these changes, making sure that we get the scrutiny right with the level of speed that we need to proceed with. I am very interested in the point that my noble friend makes and we will certainly look at that.
Will the Minister clarify the welcome reference in the Statement to a significant increase in the decision-making power of each devolved Administration? In respect of the Social Chapter, for example, will Wales be able to have that fully enforceable, even if it were to be amended at a UK level? Will he also confirm that any powers coming from Brussels to the UK applying in devolved areas will be able to be retained at, for example, a Wales level and will not need to be grabbed back by London? And will the European Convention of Human Rights still apply in the devolved areas?
On the second point, there is absolutely no plan for the Government to withdraw from the ECHR—I can assure the noble Lord of that. On the first point, there is again absolutely no intention to use this process in any shape or form to erode the decision-making powers that currently exist for any of the devolved Administrations. As regards how powers come back, that is clearly a matter, as the Statement makes clear, that we need to consult on very carefully to make sure that it works in all our interests.
My Lords, I welcome the fact that the Government have got rid of the Orwellian title the “Great Repeal” Bill on the title page, although they seemed to revert like a ponticum rhododendron when they got inside. Would it not have been better to adopt the by-line of the Prince of Lampedusa’s famous remark in The Leopard when he gave the definition of revolution as:
“Everything was changed so that everything may stay the same”?
I think that is probably rather more the title, and the Daily Telegraph’s regulatory bonfire may be a bit short of dry kindling.
I have two questions. First, paragraphs 1.16 and 1.19 recognise that the provisions of this Bill will be operated in parallel with the Article 50 negotiations but there is no parliamentary process for approving the changes that may have been agreed in a deal with the European Union other than the binary choice when that deal is brought to Parliament. Are the Government really asking us to give them a blank cheque for all those changes they negotiate and to deny Parliament scrutiny of the details?
Secondly, paragraph 1.20 of the White Paper makes it even clearer than it was before that the Government are anticipating no process of parliamentary approval in the context of the UK exiting without a deal. Surely this lacuna has shown even more clearly than it was shown before that we have to have a provision for approving or disapproving a decision to exit without a deal?
My Lords, for fear of frustrating noble Lords, I will not repeat all the arguments regarding the noble Lord’s second point. I will simply say with regard to all these points that there will be ample opportunity, as I have said many times at this Dispatch Box, for your Lordships and the other place to scrutinise how the negotiations are proceeding. In addition, as we make it clear here and as we said before, there will be a vote in both Houses on the agreement at the end of the process, and were measures to come out of the withdrawal treaty that needed to be implemented, again, there would be a chance for Parliament to scrutinise those.
My Lords, the White Paper referred extensively to the report of the Constitution Committee but not to its recommendation that both Houses need a mechanism for deciding whether enhanced scrutiny is required for some of these instruments. Given that statutory instruments cannot be amended and may be wrong in part but not as a whole, and that this House is reluctant to vote them down if they have been passed in the other House, surely we need that kind of mechanism.
My Lords, the noble Lord makes a valid point. I have read that excellent report, which makes a very useful contribution to the debate. I will not start committing one way now; indeed, it is not my role to start committing on the precise point the noble Lord made. However, I have had private conversations with some of your Lordships about this, whom I thank, and I am happy to meet the noble Lord to discuss this. However, I will not make a commitment on his point right here and now.
My Lords, the Prime Minister’s foreword to the White Paper stresses the importance of trying to minimise uncertainty during the negotiations. Does my noble friend agree that among those suffering most from uncertainty are UK citizens living elsewhere in the European Union and those from elsewhere in the European Union living in the United Kingdom? When the Prime Minister approached this in Brussels she was told that she must wait until negotiations had begun and Article 50 had been implemented. Can my noble friend assure us that we will now press ahead with resolving the matter at the earliest possible moment? Should we not be absolutely clear that we must avoid a situation where nothing is agreed until everything is agreed? That would perpetuate the uncertainty for this group of people and many other groups of people for two years or perhaps many more.
My Lords, my noble friend makes a very good point. As regards the substance of it, I draw attention to the second point in the “principles for our discussions”, set out in the letter that my right honourable friend the Prime Minister sent yesterday, which repeated our absolute aim to strike an early agreement about the rights of both EU citizens in this country and UK citizens right across Europe. It is absolutely our intention to do so, and it is obviously good news that we can now start that process. We have been heartened by the fact that in conversations with our European partners, they too largely share that overriding intent.
My Lords, the Minister should gain strength and succour—I am sure he will—from the fact that although he will be on his feet for hours on end in the complexities of this and other Bills, this Bill has the advantage that although the detail may be difficult, the objective could not possibly be simpler. It is to ensure that this Parliament—and we are all parliamentarians—makes, changes and amends the laws, which the people of this country expect this Parliament to perform. I know from all my experience as an MP that they expect Parliament to carry out that duty by being able to make the decisions on their behalf. Therefore, all of us who are keen parliamentarians and who value the priceless authority we have in either House, but principally in the Commons, should bear in mind, surely, that this is a wholly desirable piece of legislation.
I am delighted that the noble Lord sees it that way. I certainly agree that although the challenge ahead is extremely complex, we need to proceed with some simple principles and as simple an approach as possible, while being mindful of the complexity and of the view, which I know some of your Lordships hold, that in the process of restoring sovereignty to Parliament we should not give the Government excessive powers. We need to get the balance absolutely right and that is what I am determined to do.
My Lords, I am sure the Minister has well in mind the problems with amending legislation of a subordinate nature in this House. I have experience of dealing with a much more modest situation, which arose when I was Lord Chief Justice and the Lord Chancellor’s status was transformed, and we realised that over 300 pieces of legislation had not been taken into account. I suggest that it is possible to include in whatever the Bill will be called—great or otherwise—a provision which enables a statutory instrument to be amended without affecting its validity. That will give much greater comfort to those in this House with regard to what is proposed.
My Lords, I confess to an almost irresistible urge to return to full-time practice at the Bar because this is a legal minefield. When a relevant right of action arises between now and the date of our departure, is it not the case that any such proceedings which may follow fall to be determined by European Union law and are justiciable by the European Union Court of Justice, however long that might take?
I am not sure I entirely get the noble Lord’s point, I am sorry to say. I have set out the position on case law. Until we leave the European Union obviously we continue to be bound by the ECJ. Forgive me if I am missing the noble Lord’s point. I am happy to meet him to discuss it.
My Lords, as chairman of the Delegated Powers Committee, I am pleased that the Government seem to be taking on board many of the recommendations we have made in tandem with the Constitution Committee, with which we are working closely. The most important from our point of view is the sunset clause—the time-limiting one—which deals, I think, with many of the worries people have about giving the Government extensive powers. May I take it a little further? There will be primary legislation dealing with other matters where we will wish to take a different approach and have a different policy. My guess is that there will be considerable delegated powers. I ask the Government not to take too much for granted. Our committee will have beady eyes on it all.
I am delighted that the beady eye of my noble friend will continue to survey all that comes from government, and so it should. I thank very much my noble friend and the members of her committee for their work. As I said, we have confirmed that there will be a sunset clause in this piece of legislation. My noble friend is absolutely right about the other pieces of legislation that will follow. I will not say here and now the extent of any delegated powers they might have, but we are obviously very mindful of the need to ensure that those powers are proportionate.
My Lords, the Government’s policy is to leave the single market, with potentially devastating consequences for the British economy. It is already causing the deepest anxiety in the City and among manufacturing industry particularly. I hope the Minister has read the recent report of the engineering manufacturers’ federation on the subject. The Government defend their policy. Their stated reason, or excuse, for it is that any other policy would be incompatible with their desire to restrict EU immigration. Now that the Secretary of State for Brexit has publicly acknowledged that in practice there will not be any meaningful reduction in EU immigration for some time, would it not be elementary common sense to re-examine this whole policy? The cost of leaving the single market remains the same, but the potential gain or return for which the Government said they were hoping is obviously much less than anticipated and possibly non-existent. Is it not common sense in those circumstances to review their policy, quite apart from the other issues such as the difficulty it would create for Ireland to create a new frontier across the island of Ireland, which could be avoided if we remain in the single market?
I respect the passion with which the noble Lord speaks on this matter; he does so with great eloquence. I have very little more to say to expand on what I have said at the Dispatch Box on this issue many times before. We view the need to leave the single market as reflecting the view and the instruction that the people delivered on 23 June last year. We have always said that we believe we need to take control over our borders. We also see that as an instruction and part of the need to leave the EU. As regards how we do so, my right honourable friends the Secretary of State and the Prime Minister have both said on many occasions that we need to do so in a sensible way, mindful of and sensitive to the needs of the economy. I have little to add to that.
My Lords, the Minister is well known for his engaging sense of perpetual optimism, so can he reassure the House that all the legislation in this vast Bill will be completed by the end of the next parliamentary Session, which presumably will start on 17 May or thereabouts? There will be more or less only a year to make sure that it all goes through. Will he also reassure us that, as the word “instruction” is rather an improper term to use in comparison with “indication”, “judgment” or other softer words, the final vote of the sovereign Parliament, particularly the House of Commons, will be the final decision on this matter?
My Lords, the people have said that they wish to leave the European Union and that is what we are doing. As regards the timetable for this Bill, the noble Lord makes a very good point. We obviously have a timetable that reflects the Article 50 process. We fully intend to see this Bill on the statute book as soon as possible so that we can start to use the powers and ensure that our statute book is fit for purpose on the day we leave the European Union.
In connection with the challenge set out in the White Paper of ensuring appropriate parliamentary scrutiny of the EU legislation being translated into UK law, might my noble friend consider the precedent set some years ago by the tax law rewrite committee? As noble Lords may remember, this Joint Committee of both Houses was set up in similar circumstances with the simple purpose of replicating laws without changing them. It had the advantage that laws could be published in draft, others could look at them, and a Joint Committee of both Houses could scrutinise them and ensure, as the remit was set, that the laws were being translated without changing their meaning. That might be an effective way of dealing with the volume of legislation in this situation.
My Lords, I have been encouraged by the Minister’s response to my noble friend on the Front Bench about his door always being open regarding the recommendations of the Constitution Committee, which have been marshalled around the House. He says—and the White Paper makes it clear—that the Government want to strike a balance between scrutiny and speed. I understand the constraints of speed but will he assure the House that, when it comes to finding that balance, they will have to lean towards scrutiny as far as this House and its role are concerned? In particular, will he look closely at the provision of draft regulations? One problem that has beset this House and its scrutiny processes in recent years has been our inability to comment on the impact of legislation because we have not had draft regulations for consideration. When so much of such a profound, not technical, nature will be dealt with through secondary legislation, we will need draft regulations to do that job properly.
I thank the noble Baroness for that contribution, and I totally take heed of what she says. I think this comes back to the points raised by the noble Baroness, Lady Hayter, and my noble friend Lord Howell about how to ensure, in some shape or form, that there is a reflection of the technical nature or otherwise of the SIs, making sure that the legislation is presented to Parliament in a timely manner. I hear what the noble Baroness says and I will certainly reflect on it.
My Lords, following the contribution of my noble friend Lord Campbell, can the Minister confirm my reading of the White Paper: any obligations incurred under pre-exit European law, including obligations on the Government of this country, will be justiciable in our domestic courts following exit?
Combined Authorities (Finance) Order 2017
Motion to Approve
My Lords, the order puts in place the process that elected mayors and their combined authorities will follow for setting the mayoral budget and issuing precepts. For the six mayoral combined authorities with elections this May, these processes will apply in relation to 2018-19 and each subsequent year. This is applicable to all mayoral combined authorities, except for the West of England. In this case, reflecting local choice, there will be no mayoral precept, an outcome secured by provisions in the order establishing that combined authority. In addition, the order makes certain transitional finance provisions for Greater Manchester, reflecting that, from 8 May 2017, its mayor will have police and crime commissioner responsibilities, and be responsible for the Greater Manchester Fire and Rescue Service.
This order establishes the final element in the funding framework for mayoral combined authorities. Under this framework, the activities of combined authorities and their mayors will be funded as follows. First, combined authorities and their mayors, as provided for in the devolution deals, will receive new, additional financial resources from government. In particular, noble Lords will recall that the Government are providing £30 million per year for 30 years of investment funding, known as “gain share”, to areas such as Greater Manchester, the West of England and the Liverpool City Region. In the case of the West Midlands, which we have considered in the previous debate ahead of the Statement, this investment funding is £36.5 million per year for 30 years. In the case of Cambridgeshire and Peterborough it is £20 million per year for 30 years and in the Tees Valley, reflecting the size of the area, it is £15 million per year for 30 years. Central government resources also include budgets for transport, and the mayors will have the powers to allocate this funding to the constituent councils, as we saw in the order that we previously considered today for the West Midlands.
Secondly, the primary legislation—the Local Democracy, Economic Development and Construction Act 2009—together with the orders we have made for individual combined authorities, provides that the constituent councils can make contributions to combined authorities and mayors. Importantly the orders also provide that, in the case of mayoral expenses, the mayor must agree contributions with the constituent councils in advance of incurring expenditure.
Thirdly, combined authorities can impose a levy on their constituent councils for transport costs. It is open to us also to make further secondary legislation to extend these levy powers for other functions of the combined authority. The constituent councils then build these levies into their own budgets.
Finally, mayoral functions—to the extent they are not met by other means—are to be met by a precept. This precept is determined each year through the mayoral budget process and is formally issued by the combined authority to the billing authorities in its area. The billing authorities then build this precept into their council taxes and the precept will be visible on council tax bills. As I said earlier, the mayor for the West of England does not set a precept. In this area, the costs of the mayor will be funded through contributions from the constituent councils.
If approved by Parliament, today’s order is to be made under the Local Democracy, Economic Development and Construction Act 2009—as amended by the Cities and Local Government Act 2016—and makes detailed provision about budgeting and precepting. If approved by Parliament, the order will come into effect the day after it is made. The specific provisions, which are designed to ensure an effective process including robust arrangements for scrutiny and challenge of the mayors’ proposals, are as follows. First, there is a requirement for combined authority mayors to submit by 1 February of a given year a draft budget to their combined authority for consideration. Secondly, the combined authority recommends any amendments to the draft budget before 8 February, and the mayor considers them and makes a further proposal if he should choose to do so. Thirdly, the constituent members of the combined authority may impose amendments to the mayor’s draft budget, if supported by a two-thirds majority—except in the case of the Tees Valley, where that majority is three-fifths. In the absence of this majority, the mayor’s proposals must be accepted by the combined authority.
Fourthly, the combined authority must set a mayoral budget if the mayor does not submit a draft for consideration by 1 February. Fifthly, the mayor is to fund mayoral functions through a precept, which will be subject to referendum principles that limit precept increases in the absence of a council tax referendum. Sixthly, the standard local government finance regime applies so that precepts must be issued by 1 March. Seventhly and lastly, to aid transparency the mayor is required to maintain a fund relating to the receipts and expenses of the mayor’s functions, excluding police and crime commissioner functions, for which Manchester city combined authority is responsible and for which there is a separate police fund.
The order also contains detailed provisions about transitional measures. The duty to issue a precept is disapplied in relation to the year in which the first mayor for the combined authority is elected. This is because for this year the mayor will not be in office in time for the precept to be set. Mayoral expenses in this first year will therefore be met by contributions from the constituent councils.
The final transitional provisions relate to Greater Manchester, where the mayor will be responsible for police and crime functions and the fire and rescue services. These provide that the precepts for 2017-18, which have been issued by the Greater Manchester police and crime commissioner and the fire and rescue service, will from 8 May this year fund the mayor’s activities in respect of policing and fire and rescue functions.
In conclusion, the order will support the new combined authority mayors to fund their functions through a precept and a budget-setting process that allows for effective challenge and robust and transparent scrutiny by the combined authority. The draft order will complement the orders already approved by this House to implement the devolution deals agreed between local areas and the Government, paving the way for a more balanced and successful economy and improving housing supply across the country. I therefore commend the order to the House.
My Lords, I shall make two brief points. First, the powers and the checks and balances proposed in the order seem appropriate, but I note the final paragraph of the Explanatory Memorandum concerning monitoring and review, which says:
“Mayoral combined authorities will be required … to put in place an extensive programme of evaluation”.
I suggest to the Minister, not least because there are two different methods for creating the mayoral budget now—for most the precept, and for the West of England by agreement of the constituent councils—that evaluating how that works could well be something for independent review as opposed to being done by the combined authorities. I hope the Minister will pay some regard to that.
The other issue is that I did not quite understand what the Minister said about audit and, in particular, scrutiny. There is a very tight timetable between the beginning of February and the beginning of March. There is to be a budget proposed by the mayor, then to be agreed by the combined authority. The combined authority is of course scrutinising that mayoral budget, except that the combined authority itself is subject to scrutiny. My question is: at what point will the scrutiny arrangements that have already been approved by another order apply? Will there be a role for the scrutiny panel before 1 March, or will the scrutiny panel put forward its views at a date between 1 March and the date at which the constituent councils are setting their budgets, which need to come very early in March? There is a process issue about the role of scrutiny, because I think the Minister said that the combined authority has a scrutiny power over the mayoral budget, but the combined authority is actually itself subject to a formal statutory scrutiny arrangement.
My Lords, I refer the House to my declaration of interests and put on record that I am a councillor in the London Borough of Lewisham and a vice-president of the Local Government Association. I have no objections to the order before us and I am very happy to agree it. There does, however, need to be a wider debate at another time about where we are going with local government in England outside London. I will leave that for another day.
The section of the order with respect to mayors’ budgets is particularly welcome. I was pleased that the Minister made reference to the fact that there is a veto provision. All mayors will be mindful of that but, equally, it is set at the high bar of a two-thirds majority, or, in the case of Tees Valley Combined Authority, of a three-fifths majority. That is an important provision that mayors should be aware of.
The noble Lord, Lord Shipley, made important points regarding auditing and scrutiny. I welcome the Minister’s response to that. I assume I am correct that if local electors have objections to the council they can make these as normal, but could the Minister confirm that as well as he can in writing?
For the record, in the previous debate when asking about mayors and their function the point I made was about selling land below market value, not at market value. Will the Minister also respond to that point in writing?
My Lords, I thank the noble Lords, Lord Shipley and Lord Kennedy, for their contributions on the issue of local government finance. If I may first pick up the point from the noble Lord, Lord Kennedy, in relation to the previous debate, I will certainly take another look at that. As I indicated, I think the function will be balanced between the mayor and the combined authority. But there will of course be an overriding obligation to get best value and, if land is being sold below market value, I would anticipate that there was a danger of falling foul of that. I will cover that issue in a letter to the Minister—I mean the noble Lord; days of yore in the National Assembly for Wales are kicking in, so I apologise.
I thank the noble Lord, Lord Shipley, once again for the generous welcome he has given to this piece of secondary legislation as well as for his attention to the different interests of the mayor and the combined authority and to the important checks and balances. He asked specifically about the budget process and about scrutiny. As I think he will know, the overview and scrutiny committees can require the mayor to appear before them at any time, including in the first year of the mayor’s term, before this more detailed process kicks in. In the first year, of course, it is too late for the precepting procedure, which applies later on. The budget scrutiny requirement refers to the scrutiny of the mayor’s budget by the combined authorities, though there is a specific requirement under the order, as the noble Lord appreciates, for a mayoral fund to be set up. I will perhaps enlarge on that in a letter because it is a fairly technical area.
I thank the noble Lord, Lord Kennedy, again for his pragmatic approach and for welcoming this particular measure. He raised similar points about scrutiny in addition to the point he raised on the last order. I will of course pick those up in a detailed letter.
As I said, this issue is central to the system of mayors, which I think we all support in principle. I accept that we have different concerns but it is obviously essential that going forward we have a system for how money is to be organised. I also accept that we have bespoke deals. For example, the West of England Combined Authority did not want precepting, while Tees Valley Combined Authority wanted decisions to be made with a 60% rather than a 66% majority because it has five constituent councils—I think that is the reason for that; they would each have 20% of the vote. Accepting that there are going to be slight differences, the general approach to scrutiny and budgets is set out in this order, which I think is non-controversial. As I said, any points that have been raised and that have not been covered in my response will be picked up in a letter, in addition to the point made by the noble Lord, Lord Kennedy, in relation to the previous debate. I commend the order to the House.
Role of the Lord Speaker
Question for Short Debate
My Lords, almost 11 years ago, in June 2006, the House of Lords took what was considered at the time to be a quite dramatic, almost revolutionary step. Despite considerable opposition, the House decided to elect its own presiding officer: the Lord Speaker. Prior to that, the person sitting on the Woolsack had been a senior member of the Cabinet, appointed by the Prime Minister. When you think about it, it is astonishing that a legislative assembly, the House of Lords, should have had so many of its Members preferring to have a member of the Government as its figurehead rather than someone who the Members themselves could elect—almost as odd, you might think, as having by-elections to elect hereditary Peers.
I mention this bit of history for two reasons. First, I want to remind everyone that yesterday’s revolutionary suggestion soon becomes today’s accepted practice. I do not know of any Member of this House today who is suggesting that we should replace the Lord Speaker with a senior member of the Cabinet. Secondly, the strong opposition at the time explains why the newly elected Speaker was given the bare minimum of powers, reflecting the views of so many Members that we were embarking on such a risky new venture. In fact, I kid you not, when one of the candidates in the first Speaker’s election was asked what he planned to do with the role, he replied, “As little as possible”.
In keeping with the caution of this Chamber, I am suggesting two small changes to the role of the Speaker which I believe would improve both the efficiency of the House and the intelligibility to the public of the way in which we conduct our affairs. The first relates to Question Time. In 2011 the then Leader’s Group on Working Practices produced its report. On Question Time it had this to say:
“The conduct of oral questions is the topic which, to judge by the responses to our invitation for views, concerns Members of the House more than any other … When the political character of question time is combined with the larger size of the House, the result is an increasingly fractious and at times aggressive atmosphere … many Members, from whom the House might wish to hear, and whose knowledge and experience would be particularly valuable … are discouraged from participating”.
The House voted on the proposal of the Leader’s Group to transfer Question Time responsibilities to the Lord Speaker, but the Motion was defeated. But since that vote six years ago, there have been significant changes. The House has grown even larger, in both size and daily attendance. This has made it even more difficult for people without loud voices to make themselves heard at Question Time. What is more, there has been increasing scrutiny of this House and the way in which we manage our affairs by the media and the public. Something that should be of concern to us all is the impression given to the public when they view Question Time. At times it appears to be a complete shambles, with people shouting at each other and no one in control. Anyone who observed Question Time this morning would find at least one example of that.
I believe there is a simple and cost-free solution to this problem: we should give control of Question Time to the Lord Speaker. In recommending this, I want to make one thing very clear. I am not criticising in any way the current Leader of the House, the Chief Whip—I never criticise Chief Whips—or any other Minister who might intervene at Question Time. I am saying simply that where they sit in the Chamber, on the Front Bench, is an absurd position from which to see the House and exercise control.
The House of Lords is unique in many ways but none more so for being the only legislative Chamber anywhere on the planet where the person responsible for maintaining order has their back to half the audience. I know, I have done myself it from time to time. You cannot see who is standing up behind you. You need wing mirrors. The people in the Gallery—the people we are here to serve—cannot see who is in control either. They look to the person in the chair, as they would at any other public event. But the Lord Speaker’s role in the chair is purely decorative—and he does that very well. The Companion to the Standing Orders insists on this. Paragraph 4.06 says:
“The role of assisting the House at question time rests with the Leader of the House, not the Lord Speaker”.
I hear the objectors say, “You are eroding the authority of the Leader”, to which the answer is that from the very start the establishment of our elected Lord Speaker has involved the transfer of responsibilities from members of the Cabinet to the Speaker. I will give a couple of examples. Until 2006 the power to determine whether or not a Private Notice Question should be allowed, believe it or not, was in the hands of the Leader of the House. Imagine that for a moment. The power to grant an Urgent Question, invariably requested by a Member of the Opposition and, to put it mildly, not often welcomed by the Government, until 2006 was determined by the Leader of the House as a senior member of the Government. That power was transferred to the Lord Speaker, and rightly so.
Another precedent involves the Lord Chancellor. Prior to 2006, the power to recall Parliament during a recess lay with the Lord Chancellor—like the Leader, a senior member of the Government. That power now rests with the Lord Speaker. Paragraph 1.55 of the Companion says:
“The Lord Speaker may, after consultation with the government, recall the House whenever it stands adjourned”.
So there are two examples—Private Notice Questions and the recall of the Lords—where power has been transferred from the Government to our elected Lord Speaker. In my book, that is entirely consistent with, and indeed an enhancement of, our valued tradition of being a self-regulating House.
I need to emphasise very strongly that I am in no way recommending a Speaker comparable to the Speaker in the House of Commons. I do not think anyone here, including former MPs like me, would want a Lord Speaker who, for example, had to rule every day on seemingly endless, usually bogus, points of order. There are a number of experts on that sitting around me this afternoon, and occasionally I would include myself. But paragraph 1.52 of the Companion states quite clearly:
“The House does not recognise points of order”.
That prohibition would remain. All I am suggesting is that the Lord Speaker should in future perform precisely the functions that the Leader does at present—no more and no less. I have no doubt whatever that this modest change would diminish the shouting match which often characterises Question Time. It would make proceedings more intelligible to the public and encourage and enable many more Members to participate who are reluctant to do so at present.
I suggest one other change to the Lord Speaker’s role, and today is a timely day to suggest it. I would like to see the Speaker take control of the House when Statements are made. At present, all that happens is that the Minister making the Statement simply stands up and reads it with no introduction. It is bizarre, but we are so used to it that we do not regard it as unusual. I think the Lord Speaker should announce the Statement and call the Minister. Otherwise, the matter is not that intelligible to the public. I have sat in this House many times when halfway through a debate or between two orders a Minister stands up and reads a Statement. It would be helpful if that were done by the Lord Speaker. All we have at present is a message on the annunciator to say that a Statement is due. It would also fall to the Lord Speaker to manage Statements in order to prevent mini-speeches—we had the odd example of that today—and to ensure that as many Members as possible are able to contribute in the 20 minutes that are allowed.
I believe the role of the Lord Speaker has grown over the years entirely to the benefit of the House. I also believe that the profile and leadership shown by the current Lord Speaker in speaking for the House on matters of public interest which are relevant to the House as a whole—both to the press and to the public—have been very much to our advantage. Enhancing his role at Question Time, in particular, and for Ministerial Statements would establishing him more effectively in the eyes of the public and the media as the person who can speak for the House of Lords.
My proposals today represent a small but significant extension to the responsibilities which were given to our first Lord Speaker 11 years ago. Nearly half our Members today—362 out of 804—were not Members then. It is high time that we reflected on our experience of having an elected presiding officer and consider the changes that I have suggested. They would make our proceedings fairer to Members and more comprehensible to the public. They would cost nothing and disadvantage no one. I commend them to the Leader, who will be responding, and to the House.
My Lords, I am grateful to the extremely experienced and noble Lord, Lord Grocott, for tabling his QSD. I have agreed with much of his counsel in the past, and even today, but on this occasion, I think we should maintain the status quo and rely entirely on our excellent system of self-regulation.
I observed that when I was a junior Member of the Opposition Benches, I had no difficulty in getting my fair share of questions, even though I do not particularly have the gift of the gab. When I have guests attend Question Time, they often marvel to me how your Lordships know when to get up, as the Lord Speaker appears to have no role and very often my noble friend the Leader has no need to intervene. When she comes to respond, perhaps she can tell the House how often she has had to intervene. I also take this opportunity to say how well she performs her duties and to express our gratitude to her.
No doubt, many noble Lords will focus on Question Time, and I shall point out some of the advantages of the current arrangement that could be lost with any changes. I expect many noble Lords will make the point that the Leader has a better view of the House than the Lord Speaker. Although, unlike the Speaker in the Commons the Lord Speaker sits on his own, in the House of Lords, the Leader, the Government Chief Whip and the Clerk of the Parliaments work together as a team, especially at Question Time. Either the Chief Whip or the Leader will create a matrix to ensure that each Bench has its fair share of supplementaries. The Leader will need to be seen by the House as being scrupulously fair or she will risk losing the confidence of the House, and then be in danger of losing her job.
For ordinary legislative business, Statements and time-limited debates, the role of the Leader is usually delegated to a junior Government Whip, who seeks to express or suggest the sense of the House, in the same way as the Leader. Your Lordships will recall that I have performed this role, and I sought to do so as a servant of the House and not of the Government. I had no difficulty in helping the House manage Statements: it was quite easy. Once, when I got the sense of the House slightly wrong, I was able to say, “My Lords, this is a self-regulating House and a self-regulating Committee. If the Committee wants to hear more from the noble Lord, he should continue”. That is what self-regulation is about.
When noble Lords address the House, they generally do so looking very carefully at the Minister and the Government Front Bench in order to gauge their reaction. They do not look at the Lord Speaker. If a noble Lord is running out of his time, the Whip has a number of non-verbal techniques, which can be escalated, and these can easily be detected by the noble Lord speaking long before the Whip need rise to the Dispatch Box. In these circumstances, noble Lords know that they should drop their remaining points and conclude. Indeed, when I did have to go to the Dispatch Box to intervene on a noble Lord regarding time, I regarded it as a failure on my part. The beauty of this arrangement is that the Whip’s activity will not be seen on the video link, and no guests will be aware—they will not realise that the Government Whip is giving non-verbal directions to the speaker.
I have another reason for being very cautious about expanding the role of the Lord Speaker. The noble Lord, Lord Grocott, was very careful to say that this would be only a very small change, but I fear that we are talking about a slippery slope—the noble Lord correctly anticipated that. With the sensible exception of money Bills, nothing on God’s earth can prevent a Peer tabling an amendment and having it debated to the extent that he or she desires and then if, necessary, calling a Division. In the Commons, amendments are grouped and selected by the Speaker, obviously,
“for the convenience of the House”.
We should be ever so careful about expanding the role of the Lord Speaker, lest we eventually find ourselves in the position of Back-Bench Members of the House of Commons, who are severely constrained.
My final point is this. I expect that the noble Lord, Lord Foulkes, believes that he has a unique parliamentary style which will in time make it necessary to give the Lord Speaker increased powers. The noble Lord looks shocked at that, and I can assure him that this is not the case. When my noble friend Lord Trefgarne was a Minister, he had to enjoy the antics of Lord Hatch of Lusby, who had a similar style—I am getting gestures from the Opposition Benches, but I am not yet getting anything non-verbal from the Government Whip. When I arrived it was Lord Molloy. Now it is the noble Lord, Lord Foulkes, and I can assure him that the House has no difficulty in accommodating him or his predecessors, or in enjoying his contributions.
My Lords, I agree with one point made by the noble Earl: that the issue of creep would stop Back-Benchers. But that is not what my noble friend Lord Grocott was talking about. I want to support exactly what he said—no more, no less. I do not want this House to replicate the other place anyway. It is a very modest change. For two years, between July 2005 and July 2007, while the noble Baroness, Lady Amos, was the Leader of the House, I was delegated as Deputy Leader and, as such, on occasion I had to help the House out. Because I am a squirrel, I have here two years’ worth of Order Papers, where I meticulously kept a record of every Question. I was not waiting until trouble arose. I looked at every Question as it went through the House, so that I knew there was fairness in there. Because I am a squirrel, I put them all in a box and they are all there so that I have a record. We were meticulous in making sure that all sides got into the debate. One has to consider that some of our Members are a bit slower in getting up than others. I will not mention any names because that is not fair, but occasionally I was tipped off in advance that such a Peer would like to speak and therefore I could commend the House to listen to the Peer.
It is not easy to perform the role. When I sat there, I had the Labour Peers behind me and, if I remember rightly, the Cross-Benchers were to the immediate right; the configuration has changed slightly. You need your head on a swivel wire because you cannot hear who is shouting, and that is part of the problem.
It is not right that a Minister should be the person to choose the Member to question a Minister. There is a point of principle there. In fact, in performing the role, I was a bit rigid in being scrupulously fair on occasion. I recall one day when I cut off the noble Baroness, Lady Trumpington, just about to go into full flight. I can tell noble Lords that later that day I was on my knees at the side of her desk, begging forgiveness. When the noble Baroness, Lady Ashton, became Leader, I was instructed to cease the role.
While I was in the role, I once checked on speakers at Question Time—I would like to think that the noble Baroness the Leader of the House has already done this—and discovered that 50% of the supplementary questions were asked by 10% of the Members. This is because it is a bear pit with verbal bullies—pure bullies. They are on all sides of the House and of all genders. This is grossly unfair to the vast majority of the House. Some noble Lords have never asked a supplementary. They are here because they are world-class experts on a subject, but they cannot bring themselves to get involved in the bear pit. If the Lord Speaker had the role, all the noble Baroness would have to do is stand—not shout to try to be heard over everybody else—and hope to be called by the Lord Speaker. At least it would be a fairer system.
We should hear from the Members themselves who do not participate at Question Time. There is a job to be done there—to ask them why they do not. They are here in their hundreds but they never participate at Question Time. Bearing in mind that at the moment a sub-committee is looking at cutting down the size of this House, I would hate for it to come up with the idea, “This person never speaks at Question Time. Get them out”. The reason for that is the bullying tactics of the system. I am not accusing anybody and I have no criticism of anybody—the Leader, the Deputy Leader, the Chief Whip or anybody. The fact is that it is the system that is wrong. I found it really difficult when I became a Back-Bencher in 2008, because I had arrived here in 2001 as a Minister. I thought, “What the hell am I going to do? How do I get in at Question Time?”. I found it incredibly difficult to start to participate, and I am quite restrained these days because there is a serious problem.
It is a very modest technical challenge that does not alter anything for anybody but would give an impression of this House to the public that we are a bit more professional and look as though we know what we are doing. At present, at Question Time—I watch it on television occasionally—it looks as though we do not know what we are doing. That diminishes the House and we cannot defend it outside.